The Abortion Wars and Gonzales v. Carhart (2007): How Doctors Affect the Law

1. The Abortion Wars and Gonzales v. Carhart (2007):How Doctors Affect the Law Bruce Patsner, M.D., J.D. Research Professor Health Law and Policy Institute University of Houston Law Center Houston, Texas

2. The Critical Role of Physicians in the Partial Birth Abortion Issue • Physician expert medical testimony played a critical role in the way Congress drafted the federal Partial Birth Abortion Act of 2003 • Physician expert medical testimony played a critical role in fashioning both the Majority and Dissenting U.S. Supreme Court opinions in the Gonzales v. Carhart decision 550 U.S. ___ (2007)

3. What Are We Talking About? • “Partial-birth” abortion • Intact D & E (dilatation and evacuation) – the term the U.S. Supreme Court used • D & X (dilatation and extraction) These terms all used to describe the same surgical procedure. No consensus in medical community over the preferred term.

4. The Numbers in U.S. • More than 1.2 million abortions per year • <9 weeks 59% • 9-12 weeks 30% • 13-15 weeks 6% • 16-20 weeks 4% • 21+ weeks 1% Source: Guttmacher Institute, 2006 CDC does not break data down after 20 weeks D & X usually used after 20 weeks, but not always Fetal viability high after 27 weeks, nil before 22

5. Constitutional Right to Abortion • Roe v Wade 410 U.S. 113 (1973) • Planned Parenthood of Southeastern Pennsylvania v Casey 505 U.S. 883 (1992) • Women in the U.S. have a substantive due process right to have access to abortion in the first and second trimester before fetal viability • There was A LOT of precedent for Supreme Court to deal with in Carhart 2007

6. Roe v. Wade: Holdings • Recognized “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.” • Acknowledged “State’s power to restrict abortions after fetal viability.” • Confirmed that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman..” which increases per trimester • “Texas law making it a crime to assist a woman to get an abortion violated her due process rights.” • Decision expressed clear intent not to interfere with day to day practice of medicine

7. Planned Parenthood v. Casey: Holdings (1992) • A Pennsylvania law that required spousal notification prior to obtaining an abortion was invalid under the 14th Amendment because it created an undue burden on married women seeking an abortion. • But, requirements for parental consent, informed consent, and 24-hour waiting period were constitutionally valid regulations. • So, it’s not an absolute, unfettered right.

8. Stenberg v. Carhart (2000): Holdings • U.S. Supreme Court rules Nebraska state law abolishing partial birth abortion is invalid on two grounds: • Wording of statute is so vague that it could be easily applied to more traditional D&E, even in first trimester, and could eliminate access to all of them • Lack of an exception allowing the procedure where necessary for the health of the mother is a due process violation of a woman’s substantive right to abortion

9. Partial-Birth Abortion Act of 2003 • Federal law passed by Congress and signed by President Bush in 2003 • The third try at this law since 1995; twice vetoed by President Clinton 1996, 1997 • Contained a careful description of the procedure • NO exceptions for maternal health • The Bill’s facts about the procedure were all based on expert medical testimony before Congress • Responded to the Stenberg decision in two ways: more precise language, and Congress stated it was not bound to accept as fact some of the findings of the district court judge • Some of the recitations of “fact” in the bill are FALSE

10. Procedural History of Carhart • Nebraska passes state law outlawing partial birth abortion 1997. No exceptions. • Stenberg v Carhart 53 U.S. 914 (2000) kills this. • U.S. Partial-Birth Abortion Ban Act of 2003 passed in response. • “Abortion docs” file against U.S. A.G. in District Court of Nebraska, ask for and are granted permanent injunction against enforcement. Nebraska law declared unconstitutional. Appeal to 8th Circuit. • Carhart v Gonzales 8th Circuit 2005, and Planned Parenthood Federation of America v. Gonzales 9th Circuit 2006 affirm. Hold that the Nebraska law was facially unconstitutional because Stenberg case created a per se constitutional rule that all abortion bans need to have an exception for the health of a woman. • Gonzales v. Carhart 550 U.S.___2007 now upholds federal ban. NO new medical evidence reviewed by Court.

11. 8th Circuit Court Decision • “when lack of a consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women’s health by including a health exception.” • The 8th Circuit Court rejected the Attorney General’s attempt to demonstrate changed evidentiary circumstances since Stenberg. • This “change” was the testimony before Congress by medical experts opposed to D&X.

12. The Precise Legal Question Before the Supreme Court in Carhart • “Whether, notwithstanding Congress’s determination that a health exception is unnecessary to preserve the health of the mother, the Partial-Birth Abortion Act is invalid because it lacks a health exception or is otherwise unconstitutional.” Yes, they really write and talk like this…

13. The Decision (“Holding”) • “Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception. The decisions of the Courts of Appeals for the Eighth and Ninth Circuits are reversed.”

14. Justice Kennedy’s 5-4 Opinion • The 2003 federal Act constitutional even with no health exception – Why? • It’s “never really necessary” to do a D & X • Alternatives do exist • Thus, no loss of access to procedure and no infringement of due process right • Our decision is “consistent with precedent” • Stated opinion is not just based on the Congressional testimony since even he admits some of it was erroneous • Still, does not respect the medical evidentiary findings of any of the three lower court decisions • Obsession with “moral” dimensions of the procedure and how it reflects on the medical profession • The decision unfortunately reads like a document the Catholic Church might have drafted

15. How is Carhart Not Consistent with Roe v. Wade? • Before viability the woman has an unrestricted right to abortion • Partial-birth abortion procedures clearly are performed before viability • J. Kennedy’s opinion simply ignores this • The procedure is banned even if the fetus has NO chance at viability

16. How is Carhart Not Consistent with Planned Parenthood v Casey? • The Casey court stated with unmistakable clarity that state regulation of access to abortion procedures must protect the health of the woman • There does not have to be unanimity in the medical profession for this to apply • This precedent was ignored by Court in Carhart • Paid lip service to “undue burden” test

17. How is Carhart Not Consistent with Stenberg v. Carhart? • Court held the Nebraska statute unconstitutional in part because it lacked the requisite protection for the preservation of a women’s health • Here we have a federal statute, also with no health exception • Court made it clear that as long as “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger a woman’s health, a health exception is required” • We should all be able to recognize a 180 degree turn…this medical authority existed

18. Planned Parenthood of Central Mo. v. Danforth 428 U.S. 52 (1976) • Another S. Ct. precedent ignored, from this case between Roe and Casey • Holding: a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion • (later in Carhart, J. Ginsburg states “The very purpose of a health exception is to protect women in exceptional cases.”)

19. J.Ginsburg’s Dissent in Carhart • Decision is “alarming” because… • Refuses to take Casey, Stenberg seriously • Tolerates/applauds federal intervention to ban nationwide a procedure found necessary and proper in certain cases by ACOG • Blurs line between previability and postviability fetuses firmly drawn in Casey • For first time since Roe, Court blesses a prohibition with no exception safeguarding a woman’s health

20. Justice Ginsburg’s Dissent - II • Accepted the medical testimony that there were circumstances where the health of the mother would be best served by D&X • Therefore, abolition of procedure is a due process violation even if alternative procedures exist • Ridiculed Kennedy’s moral musings and reasoning • “The notion that either of these two equally gruesome procedures..is more akin to infanticide than the other, or that the state has any legitimate interest by banning one but not the other, is simply irrational.” • “One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s ‘moral concerns’ “ We’ll come back to this…

21. Policy Implications of Decision • Direct regulation of medical profession by Congress instead of individual states • First ban on a specific surgical procedure • First significant shift in “balance” of court on abortion • More than just chipping around the edges of Roe v. Wade • Incentivizes opponents of abortion

22. Significance for Physicians • It is illegal to do an intact D&E procedure • No exception, even to save mother’s life, or for cases of rape or incest • Federal penalities: fine and possible imprisonment up to 2 years • Individual states may also additionally criminalize performing this procedure • All doctors and patients must now be aware of alternative procedures

23. During Hearings on the Partial Birth Ban Act, Congress Found That.. • “ a moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion…is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” • Congress could only find this to be true if it accepted some medical expert testimony and chose to ignore or discount others

24. Medical Experts and Congress • Each side “cherry-picked” their experts • Did the testimony even matter, given the politics of the issue? • No better, and perhaps worse, than dealing with a judge and jury in a malpractice trial. We’ve all been there. • Putting everything aside, the federal law and the court decisions were ALL based on this!

25. The Experts Against D & X • None of the 6 physicians who testified before Congress had ever performed an intact D & E. • Several did not provide abortion services at all. One was not even an Ob-Gyn. • What does this say about us as physicians? • J.Breyer in Stenberg: “The oral testimony before Congress was not only unbalanced, but intentionally polemic.”

26. The Experts In Favor of D & X • Had more experience with procedure • Had more academic credibility • Offered A LOT more “expert opinion” and clinical judgment • Did they offer any more/real data? • What happened to “evidence-based” medicine?

27. Medical Experts’ Claimed Safety Advantages of D&X over D&E • Are “marked (J. Ginsburg) for women with certain medical conditions e.g. uterine scarring, bleeding disorders, heart disease or compromised immune systems” • Safer if placenta previa and accreta • Safer for certain fetal hydrocephalus • Fewer passes, thus lower risk of uterine perforation and cervical trauma • Lower chance of retained fetal parts • Lower chance of “exposing patient’s tissues” to sharp bony fragments • Takes less time than D&E by dismemberment, thus “reduce may reduce bleeding, the risk of infection, and complications relating to anesthesia” Proof that any or all of these statements are true?

28. Conflicting Medical Testimony • The Partial Birth Abortion Act of 2003 contains language that incorporates declarative medical statements made by some of the experts who testified against the procedure • How does the medical profession regulate itself? • We’ve seen politization of straightforward medical decisions repetitively at FDA in the past 6 years e.g Plan B contraception

29. The Comparative Data • Author Year Study Type Conclusion

30. The Medical Data • Q1: Was there any new data presented to the Court between the 2000 and 2007 Carhart decisions?NO • There was new testimony before Congress, but no new data was presented. So.. (1) IS there any new medical data? (2) What does the old data show? We now need to talk about the surgery

31. Intact D & E/ D & X • Careful sizing and ultrasound • Review of indication(s) for procedure • 3-day phased cervical dilatation/laminaria • Out-patient with general anesthesia • Suction of uterus to decompress amniotic fluid, footling breech delivery • Puncture/evacuation of calvarium w/death of fetus. • Supreme Court considered the delivery and dealing with calvarium two separate “acts”

32. Intact D&E v Traditional D&E • Mechanical difference in dealing with head and body parts • Fetus killed by dismemberment and separation of placenta once suction begins w/traditional D&E; fetus killed by emptying of calvarium after extraction of body. Placenta removal varies. • Which has purported higher risk for damage to cervix, fetal pain, and other complications? • Clearly fewer passes with D&X – clearly true.

33. Dealing with the Fetal Skull • Past 22 weeks largest fetal part in cm • 1992 – Dr. Haskell’s notorious description of entering skull using “blunt” Metzenbaum scissors • Descriptions aside, in both procedures the fetal skull must be entered, emptied, collapsed, and extracted • The only difference is the proximity of the skull to the cervix at the start, sometimes • There is a difference in first dealing with fetal corpus – in one it’s delivered, in the other fragmented

34. A Critical Question • Are there any circumstances in which D & X is absolutely indicated, i.e. is more safe than any other procedure? • This was one of the critical questions which the U.S. Supreme Court decision in Carhart revolved around • Congressional testimony by both sides • The medical literature – There are NO controlled studies, and now never will be • This brings us to…

35. The Real Problem with D & X for Justice Kennedy and Co.. • More closely resembles a delivery before the fetus is killed, so it’s more like “infanticide” • Cheapens the medical profession • So, delivery is bad but dismemberment is OK (for now)* • “Moral concerns” are at work that could yield prohibitions on any abortion” • These concerns override all previous Supreme Court precedent • *Or, Invaders from Mars is worse than Starship Troopers

36. The Logic of J. Ginsburg’s Dissent • All other destructive surgical procedures for second trimester abortion are now in danger of being banned • These cases will inevitably be brought • Just a couple of cm between delivery and dismemberment • It’s then just a matter of time before the logic is extended to first trimester • ?Leave only medical abortion

37. Some Conclusions • Supreme Court intervened in day to day medical practice to ban a specific procedure despite clear precedent and superior medical testimony. • Congress intervened in day to day medical practice. The medical testimony presented was a charade, though a serious one. • J. Kennedy’s decision is patronizing to women, highly “selective” in which expert medical testimony to embrace, and illogical. • The logic of J. Ginsburg’s dissent should have us worried about what the Court could do next. • The next Supreme Court nominee is going to face a firestorm of questions from Democrats

38. So Where Does This Leave Us and Where Are We Headed? • Unlikely to be any more federal legislation because Congress no longer Republican • More individual state “anti-choice” laws will be passed and will be challenged • Some will make it to the Supreme Court • The test is still: “Do the laws unduly burden the woman’s right to abortion?” • How will the Court now rule, now that Alito has replaced O’Connor?

39. The Harshest View of Carhart • For the first time the Supreme Court has given more value to potential fetal life than to the pregnant woman’s life and health • Threats to federal protection of reproductive rights are now real • Fetal personhood initiatives now on the ballot. Colorado ballot initiative would grant legal personhood to fertilized eggs, and extend the state’s constitutional protections to “any human being from the moment of fertilization” • Colorado Supreme Court has approved that wording and it will appear on the ballot if it garners just 76,000 signatures

40. 2008:State Law Restrictions on Abortion • “anti-choice” laws are on the books in dozens of states; lots in the pipeline. • Provide adminstrative, medical, financial, and consent hurdles for women seeking abortion – eg. No funding, more consent, forced ultrasound with viewing, biased “counseling” about adoption • This is the 1st trend • The 2nd trend is simply banning more abortion procedures outright, even though illegal except for a ban on partial-birth abortion. There is now nothing to lose, and Supreme Court precedent • 3rd trend is “springing” state abortion law if Roe v. Wade ever overturned

41. Meta-Issues for Physicians • Conflicting Medical Testimony: before Congress, in Courts (med-mal) • Physician-Conscience conflicts: refusal to prescribe or provide services. Legal implications? • Micro-management of Medical Practice by the U.S. Congress 2000-2006: from pain management to Teri Schiavo to abortion..

42. “Religion, Conscience, and Controversial Clinical Practices” • Curlin, Lawrence, Chin & Lantos NEJM 356: 6, February 8, 2007 • “Many physicians do not consider themselves obligated to disclose information about or refer patients for legal but morally controversial medical procedures.” • Patients who want information and access may need to ask ahead of time. • What about our fiduciary responsibility to patients?