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US judge says ban on partial birth abortion is unconstitutional

BMJ 2004; 328 doi: https://doi.org/10.1136/bmj.328.7453.1398-d (Published 10 June 2004) Cite this as: BMJ 2004;328:1398
  1. Janice Hopkins Tanne
  1. New York

    A federal district court judge in San Francisco has ruled that the law banning “partial birth abortion” is unconstitutional and cannot be enforced. The law was passed last November and signed by President Bush, who praised it as ending “an abhorrent practice” (BMJ 2003;327:1009).

    After the ruling President Bush's press secretary said that the president disagreed with the ruling and that the administration would continue to defend the law in the courts. The Department of Justice, which is headed by John Ashcroft, the attorney general and the defendant in the case, issued a statement saying it had worked “to fulfil the goal of the president to protect innocent new life from the practice of partial birth abortion, and we will continue to do so.”

    The law defines a partial birth abortion as a procedure in which the doctor “deliberately and intentionally vaginally delivers a living fetus until, in the case of a headfirst presentation, the entire fetal head is outside the body of the mother, or, in the case of a breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.” The law also states that the procedure is never medically necessary. Between 2200 and 5000 abortions of this type of abortion are performed each year in the United States.

    The American College of Obstetricians and Gynecologists applauded the court's ruling, saying the term “partial abortion” was not a medical one.

    The organisation says the term apparently refers to “an abortion technique that is a variation of mid-trimester transvaginal abortion techniques (sometimes referred to as dilatation and evacuation or D&E techniques) which some practitioners have termed ‘Intact Dilatation and Extraction (Intact D&X).’” It describes dilatation and extraction as “dilatation of the cervix; conversion of the fetus to a footling breech; breech extraction of the body excepting the head; and decompression of the head of a living fetus to effect vaginal delivery of a dead but intact fetus.”

    Dr Paul Blumenthal, associate professor of gynecology and obstetrics at Johns Hopkins Medical Institutions and a consultant to Planned Parenthood, told the BMJ that in dilatation and evacuation the fetus was dismembered inside the uterus while in dilatation and extraction the fetus was partially expelled from the uterus, the head decompressed, and then removed. Either procedure was a safer option for the woman than abortion by hysterotomy or by induction, he said.

    However, he said, “A surgeon may set out to do a dilatation and evacuaction and may remove most of the fetus, but he might find himself in a dilatation and extraction situation. Then the surgeon must take appropriate action—dilatation and extraction in this case.” The legislation is imprecise, he said, and describes any procedure in which the fetus is partially removed. It could result in making illegal the surgical approaches that are the safest for the woman.

    The American College of Obstetricians and Gynecologists says dilatation and extraction might be used instead of labour induction to lessen the woman's discomfort; to evacuate a severely infected pregnancy with maternal sepsis, thus reducing the risk of peritonitis and shock from a hysterotomy, to complete a spontaneous abortion when the fetal head is trapped by the cervix, reducing the risk of severe cervical lacerations; and to complete some other types of spontaneous abortions.

    Three separate suits—in California, Nebraska, and New York—had challenged the law, and in all three cases the judges prevented its enforcement while the trials were under way. The suit in California was brought by the local Planned Parenthood group, later joined by the city and county of San Francisco.

    Judge Phyllis Hamilton ruled the law unconstitutional on three grounds. The law would ban abortions using dilatation and evacuation, induction, and some treatments for second trimester miscarriages. Thus it would interfere with a woman's right to choose abortion at any time up to fetal viability. Doctors performing most pre-viability abortions after the first trimester might be at risk of criminal liability.

    Secondly, the judge ruled that the law did not inform doctors of which abortions are banned. Thirdly, it lacked an exception to protect the health of the mother, and dilation and extraction was sometimes the safest method.

    The ruling protects doctors employed by or under contract to Planned Parenthood as well as doctors to whom the organisation makes referrals, regardless of where the abortion is performed, and doctors at San Francisco General Hospital.

    The second challenge to the law is in Nebraska, where a state law similar to the current federal law was overturned by the Supreme Court in 2000. The Omaha World-Herald reported that final arguments were heard on 2 June and the judge will release his opinion on 31 August.

    The New York trial has been completed, and a ruling is expected on 22 June.

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