Congress Declares Fetal Dismemberment the Standard of Care

Last week South Dakota voters rejected forced pregnancy, while voters in California and Oregon said "No" to parental notification measures. Maybe you think these are positive developments, but I do not. Medical matters should not be decided by popular vote. Politicians, lawyers, and judges should have no say in your personal medical decisions because they are not competent to make those decisions for you.

Let's look at a concrete example to illustrate this point.

As you know, on Wednesday the Supreme Court heard arguments in two cases--Gonzales v. Carhart and Gonzales v. Planned Parenthood--challenging the "Partial-Birth" Abortion Ban Act, passed by Congress in 2003. I haven't had time to go over the transcript (via RH Reality Check) yet, so I'll reserve comment on that for now. I did, however, read the brief (.pdf) submitted in support of Carhart by, among others, seven Ob/Gyns. The document contains a very good review of the medical facts under discussion, as well as a detailed illustration of the government's utter medical incompetence.

First, some legal background:

Amici, plaintiffs in NAF v. Gonzales ("Plaintiffs"), challenged the Act because it is constitutionally deficient on numerous grounds, including that it bans an array of safe abortion procedures. But even if the Act prohibited only second trimester surgical abortions in which the fetus is removed intact--as the government sometimes claims--it would still unconstitutionally endanger women's health. Amici refer to these procedures as intact dilation and evacuation ("intact D&E"), because they are among the variants of dilation and evacuation ("D&E"), which collectively account for the vast majority of second-trimester abortions.

Essentially ignoring the Act's other flaws, the government's defense of the Act relies almost entirely on Congress's finding that intact D&Es are "never medically indicated to preserve the health of the mother." ... This claim--and Congress's findings--were discredited by overwhelming evidence presented at three separate federal court trials held simultaneously in the Spring of 2004. At those trials, eminent experts from the faculties of leading medical schools, who have years of experience both performing abortions and treating women facing high-risk pregnancies, testified that D&E with intact removal offers significant safety advantages over alternative methods of terminating a pregnancy in the second trimester. These witnesses testified to the considerable health benefits of removing the fetus as intact as possible, and to the particular benefits of doing so for women in compromised medical states. After hearing this evidence, all three district courts concluded that banning such procedures without a health exception violates the Constitution and this Court's clear commands.

The New York district court, like the Nebraska and California courts whose decisions are under review, concluded that Congress's legislative findings cannot withstand even the most deferential review.... The New York court found that there is "no consensus that D&X is never medically necessary," ..., and that, in fact, "there is a significant body of medical opinion that holds the contrary," ....

Second, the expert witnesses (in the New York case) [Here's another bit of evidence that politicians are not competent to make your medical decisions: The New York court heard "more evidence during its trial than Congress heard over the span of eight years...]:

The New York court recognized seven of Plaintiffs' witnesses (including the five Plaintiffs who testified at trial) as experts in obstetrics and gynecology and abortion practice and procedures. These experts are all professors in the obstetrics and gynecology departments at leading medical schools....Collectively, they have extensive experience both performing and teaching the abortion methods at issue in this case. They have all performed first- and second-trimester abortions, and have used both of the procedures commonly used to terminate pregnancies in the second trimester, D&E and induction. Each of these experts has either performed, or personally observed, the variant of D&E involving intact removal of the fetus....These experts teach an array of obstetric and gynecological procedures, including abortion; most of them teach D&E with intact removal.

Five experts testified at trial for the government. Each of the government's experts had limited, if any, experience with abortion practice. Tr. 1788:25-1789:21 (government's witness Lockwood); Tr. 2399:19-24 (government's witness Clark) (testifying that he considers himself only "moderately skilled" in performing abortions); Tr. 2093:2-6 (government's witness Sprang) (testifying that he has performed abortions "exceedingly rarely"); Tr. 1967:16-17 (government's witness Anand) (testifying that he has never performed any type of abortion); Tr. 2487:21-2488:15 (government's witness Cook) (testifying that he has performed abortions by methods other than induction only on "rare occasions" and that most of the abortions he performed were to remove dead fetuses). Not one of the government's experts had any experience with D&E involving intact removal. None had even personally observed such a procedure.

Finally, the medical testimony (legal references omitted):

As the undisputed testimony showed and the New York district court found, approximately 90% of all abortions occur during the first trimester of pregnancy, and approximately 10% during the second....During the second trimester...approximately 95% of abortions are performed using the D&E method.

D&E consists of dilating the cervix and evacuating the uterus. Both Plaintiffs' and the government's witnesses testified that the physician's goal in any D&E is to empty the uterus in the safest way possible for the woman.

In a D&E, the physician first dilates and softens the cervix so that the uterus can be safely evacuated. To achieve adequate dilation, physicians typically place osmotic dilators in the cervix, which expand slowly as they absorb moisture from the cervix, thereby gradually opening it. Once dilation is adequate, the physician inserts instruments or his or her fingers through the dilated cervix and into the uterus, to grasp the fetus. The physician then uses traction (i.e., pulling) to remove the fetus from the uterus.

As the New York record demonstrates, during a D&E, the fetus may be removed intact or in parts. Both parties' experts testified that physicians performing D&Es seek to minimize the number of times they insert instruments into the uterus. They therefore try to remove as much of the fetus as possible with each pass of an instrument. In some cases, depending on factors such as the degree of cervical dilation achieved, the tensile strength of the fetal tissue, and the position of the fetus, the physician is able to remove the fetus intact or relatively intact with the first pass of instruments.7

{7 The testimony in New York showed that physicians do not use a different dilation protocol to achieve an intact extraction. Rather, the same standard protocol may result in more dilation with a given patient, increasing the possibility of a relatively intact extraction. (physicians "do nothing differently before [their] intact procedures"); (physicians "cannot . . . ascertain[]" the "potential for a largely intact removal" until the dilators are removed and "the surgical procedure has already begun").}

The experts in New York testified, however, that despite attempts to remove the fetus as intact as possible, the process often results in removal of the fetus in parts, with the physician reinserting instruments--and extracting as much of the fetus as possible with each instrument pass--until the evacuation is complete.8

{8 The fetal skull is the largest part of the normally developed fetus and is typically too large to pass through the cervix during a D&E. As a result, whether the fetus is dismembered or removed intact, the physician must reduce the size of the skull to complete the delivery.}

This is a very important point. In a D&E, as opposed to term labor, you don't achieve a fully dilated/effaced (thinned out) cervix. A partially dilated/effaced cervix will not accommodate the fetal skull, and this is why you have to reduce it. Two points. One, you collapse the skull in order to effect delivery, not to kill the fetus (or, for that matter, because you like poking sharp instruments into fetal skulls). Notice that the state of the fetus--intact or dismembered--is not the deciding factor. If it were, there'd be no need to reduce the skull of a dismembered fetus. Two, you reduce the size of the skull *in utero*, in order to facilitate passage through the cervix.

A variety of terms--such as "intact D&E" or "D&X"--were used throughout the New York trial to describe second-trimester surgical abortions in which the fetus is removed intact or largely intact. Regardless of the term employed, the New York experts testified that such a procedure is "a variation of . . . D&E."9

{9 The Act's findings, and the government, attempt to define D&Es with intact removal as if they were an entirely distinct procedure from D&Es involving dismemberment. However, the record evidence in New York showed that physicians who perform them "consider all D&E's [sic] part and parcel of the same procedure." ("[t]he only physicians who referred to" intact procedures "as . . . separate . . . were witnesses who had never performed the[m]"). Despite the fact that both variants are used at the same point in pregnancy, the government seeks to stigmatize one as aberrant and to embrace the other as "standard."

Before I started reading this legal brief, I didn't know what medical procedure the politicians had in mind when they invented the term "partial-birth" abortion. After having read it, I'm still in the dark as to what the government means by "partial-birth" abortion.

What I did learn, and the absolute shocker for me, is that the government claims D&Es involving dismemberment are OK, but intact D&Es are bad and must be banned. This is nonsensical on so many levels. And here's one: If your argument--as articulated by Rep. Steve Chabot (R-OH), a sponsor of the federal ban--is that you want to ban a medical procedure because it's barbaric and gruesome and inhumane, on what basis do you declare an intact delivery barbaric and gruesome and inhumane, but one involving dismemberment, not so much?

And since I'm asking questions: Why is a D&E barbaric and gruesome and inhumane, while bleeding out from a torn cervix is civilized and acceptable and humane?

Back to the brief:

The testimony in New York showed that virtually all of the remaining second-trimester procedures (five percent) are performed using the induction method. In an induction abortion, which can last anywhere from fewer than twelve hours to more than forty-eight hours, pre-term labor is initiated with medication, the cervix dilates, and the fetus is generally expelled through the labor process. In some induction abortions, however, the physician must intervene with surgical steps to complete the evacuation as safely as possible for the woman. When this happens, the physician uses the surgical techniques of D&E to complete the procedure.

The uncontested evidence presented in the New York trial established that any D&E or induction--whether used to induce abortion or to treat pregnancy loss (sometimes called "miscarriage")--may fall within the definition of "partial- birth abortion" contained in the Act. The remaining procedures for pregnancy termination in the second trimester, hysterectomy (removal of the uterus) and hysterotomy (essentially a pre-term cesarean section), are rarely used to terminate pregnancies because of their inherent risks and consequences for future reproduction. They nonetheless remain legal and can be used in those unusual circumstances in which they may be the safest method for a given patient with a critical medical condition.

To summarize:

(A) the government wishes to ban a medical procedure but fails to define it (The uncontested evidence presented in the New York trial established that any D&E or induction...may fall within the definition of "partial- birth abortion" contained in the Act.).

(B) the government seeks to stigmatize one [procedure] as aberrant [intact D&E] and to embrace the other as "standard [D&E involving dismemberment], despite the fact that whether the fetus is dismembered or removed intact, the physician must reduce the size of the skull to complete the delivery, and that both variants are used at the same point in pregnancy.

Brilliant! Glad we could clear that up.

Returning to the legal brief and the issue of the government's utter medical incompetence. Other than the perceived ickiness of a medical procedure, what are the government's facts in support of banning intact D&Es? As we shall see, Congress has no facts, just that last refuge of political scoundrels, the dictatorial proclamation legislative "findings".

Congress "finds" that:

(1) there is a "consensus" that D&E with intact removal "is never medically necessary and should be prohibited."

(2) "D & X is a disfavored medical procedure that is not embraced by the medical community, 'particularly among physicians who routinely perform other abortion procedures.'"

Not. The New York court rejected Congress's finding that there is a "consensus" that D&E with intact removal "is never medically necessary and should be prohibited." In fact, as the court found, "[t]he congressional record itself undermines this finding."

First, the [congressional] record includes the statements of nine associations, including ACOG and APHA, which opposed the ban because they believe that the procedure offers safety advantages . . . . Second, the congressional record contains letters from numerous individual physicians--whose practices include performing abortions--stating that maternal health would be jeopardized under the Act. Third, medical textbooks, which were included in the congressional record, discuss D&X as a medically recognized means to terminate a pregnancy.

...

In addition to the congressional record, the New York court found that the "[t]estimony adduced at trial bolsters this conclusion" that Congress was "unreasonable to conclude that a consensus within the medical community" opposes intact D&E. That testimony includes the concessions of the government's own witnesses that no such consensus exists.

(3) intact D&E was not taught at any medical schools

Again, not. "[T]estimony at trial adduced that, contrary to Congress's finding, the procedure is taught at leading medical schools"...as experts for both sides testified.... Dr. Lockwood, a witness for the government and Chair of the obstetrics and gynecology department at Yale Medical School, testified that intact D&E was taught under his chairmanship at New York University, and that he "intends to develop a program at Yale which would teach the procedure." Currently, at least six additional medical schools, including Yale, provide instruction on this surgical technique. The record likewise reflects that authoritative medical textbooks discuss intact D&E and its safety benefits.

(4) intact D&E has not been the subject of peer-reviewed studies and articles.

The New York record refutes this "finding" as well. [The brief lists a number of articles on intact D&E and its safety advantages on page 18.]

(5) "overwhelming evidence" demonstrates that D&E involving intact removal presents serious increased risks to women.

The brief notes that the New York trial court correctly concluded that the evidence presented at trial refuted this Congressional assertion.

The court concluded, for example, that "[e]xperts for both sides labeled . . . inaccurate" Congress's finding that intact removal increases the risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus. Similarly, the trial court found that experts for both sides agreed that intact D&E "does not involve the capricious and erratic use of instruments," thus undercutting Congress's finding that the procedure poses an increased risk of maternal laceration and bleeding. The government's own experts agreed at the New York trial that there is simply no evidence that performing a D&E with intact removal poses greater safety risks than performing one involving dismemberment.10

{10 Evidence presented at the New York trial also contradicted Congress's finding that removing the fetus intact in a D&E increases a woman's risk of cervical incompetence, which can lead to pre-term birth in subsequent pregnancies....}

Not only does the evidence refute Congress' "finding" that D&E involving intact removal presents serious increased risks to women, it actually demonstrates the safety advantages of intact D&E:

The New York trial record supports the safety advantages of intact D&E based on three demonstrated facts: (1) D&Es of all variations have safety advantages over induction abortions, (2) D&Es with intact removal have safety advantages over D&Es with dismemberment, and (3) these safety advantages are especially important for women who are particularly vulnerable to catastrophic complications by virtue of their already compromised medical states.

...[for a detailed discussion of the medical evidence see p20-5]

In sum, there was ample evidence in New York from highly credentialed experts on both sides to support the conclusion that banning intact D&E without a health exception creates "unnecessary risk of tragic health consequences." The evidence showed that the unique advantages of intact removal--reduction of instrument passes, fetal fragmentation, and procedure time--minimize the likelihood of complications that, while perhaps infrequent in an absolute sense, are potentially catastrophic in the very real cases when they do occur. The potential consequences of these complications include hemorrhage, overwhelming and systemic infection, and infertility. Such potentially catastrophic complications are no less constitutionally cognizable simply because they are, fortunately, rare.12

{12 This court's precedent offers no support for the suggestion in Chief Judge Walker's Second Circuit concurrence that procedures that reduce such complications offer only "marginal" and constitutionally insignificant benefits.}

I wish I could end this post with a witty and incisive bottom line, but I just don't have it in me. I'm stunned by reality, I guess. Or, rather, I'm stunned by what passes for reality when it comes to Congress, the Supreme Court, and female patients of reproductive age.