The Abortion Procedure Ban: Bush's Gift to his Base

...Even those who only anticipate providing first-trimester abortions will observe the hyperpoliticized state of this field—where colleagues risk jail time and quartermillion-dollar fines—and conclude that taking on the baggage of an identity as an abortion provider is simply not worth it...

...That is the interest that the Court relied on to uphold this ban, with no exception to protect women's health...

...For supporters of reproductive justice, this decision gives a frightening view of the new Supreme Court that George W. Bush has given us...

...That intact D&E is used infrequently, held by physicians to be sometimes safer than other options, and has sometimes been used for compassionate purposes—that is, to allow a family that has lost a desperately wanted pregnancy the ability to hold and grieve an intact fetus...

...Several years earlier, in the 2000 Stenberg v. Carhart case, "Carhart I," the Court overturned a nearly identical ban, because it did not contain such an exception...

...The glaring economic disparities that characterize American society mean that many people cannot afford the family lives they wish for...

...So where does this decision leave supporters of abortion rights and other reproductive justice issues in this country...

...The small community of second-trimester providers and their lawyers stepped up immediately to be sure that women would continue to receive safe abortion care, even while doctors complied with the ban...

...More important, the PBA campaign facilitated the mistaken cultural perception that many abortions took place very late in pregnancy, whereas recent innovations in abortion technologies mean that more abortions take place earlier in the first trimester...

...In its statement of the need to "protect the medical community's reputation" from the practices of abortion providers, the Court revealed its willingness to join the antiabortion movement in demonizing these professionals...

...By the time you figure out somebody is at a high risk of dying, they're probably going to die...

...58 DISSENT / Fall 2007 Carhart II does state that the ban does not apply in cases where a woman's life is at stake...

...DISSENT / Fall 2007 61...

...A true reproductive justice movement involves advocating for living wages, sensible sex education, quality child care, affordable housing, and universal health care...

...It's like someone gave me $1 million and told me . . . go shopping...

...It shows the Court's alarming appropriation of several key ideas pushed relentlessly the past few years by the contemporary antiabortion movement: for example, the widely contested notion of "post-abortion syndrome," the archaic views on gender that argue that women need to be "protected" from their decisions, and the greater importance accorded to "respect for fetal life" than to the health of the pregnant woman...

...Her remarks come at a professional meeting attended by many abortion providers, just days after the Supreme Court announced its decision on Gonzales v. Carhart ("Carhart II"), which upheld a ban passed by Congress on so-called "partial birth abortion," or the procedure doctors call "intact D&E" (also referred to sometimes as "intact dilation and evacuation," or "D&X," for "extraction...

...Neither defending abortion, in the face of such cultural onslaughts as the PBA campaign, nor promoting the right of the poor to have children, through such an expansive reproductive agenda, will be easy, even with a regime change in Washington...

...He argued that such regret would be exacerbated if women who underwent intact D&E abortion learned only after their abortions the "details" of the procedure that had been used...

...The decision to shift the debate around abortion from abstract moral principles to an actual description of abortion techniques was a brilliant move on their part...

...However, this practice has not been uniformly accepted...

...In a presidency marked by spectacular failures—with even conservatives turning against him on the Iraq War—Bush did manage to achieve one lasting gift for his religious right base: a remade Supreme Court with a radical majority that will most likely wreak havoc on reproductive justice and other social policy issues of concern to progressives for decades to come...

...an administration that vetted appointees to the Coalition Provisional Authority in Iraq on the basis of their opinions of Roe v. Wade...

...All this got lost in the shouting...

...The sensationalist campaign against this procedure—replete with pictures on the Senate floor of a full-term fetus with scissors at its skull—led to legislation banning the procedure in many states...

...The antiabortion movement has made political hay out of "partial-birth abortion" for more than ten years, ever since one of their operatives infiltrated a medical conference and heard a presentation by one of the innovators of the technique of intact D&E...

...To no avail, the American College of Obstetricians and Gynecologists, Planned Parenthood, and the National Abortion Federation, the leading professional association of abortion providers, spoke out forcefully against this ban...

...No matter how scrupulously secondtrimester providers attempt to comply with the ban, abortion opponents can still accuse them of a criminal act or sue for civil damages...

...In contrast, Talcott Camp, the deputy director of the American Civil Liberties Union Reproductive Freedom Project, told me, "Opponents of legal abortion could try to argue that after Carhart II legislatures are free to impose almost any restriction they might dream up— as long as they claim that the restriction promotes respect for embryonic or fetal life...

...an administration that, as of this writing, is pushing the nomination of a new surgeon general who is on record as calling for "reparative therapy" for gays...

...Indeed, the only ob/gyn in the Senate, Tom Coburn [R-OK] is an antiabortion zealot who is on record as favoring the death penalty for "abortionists and other people who take life...

...that poured millions into "abstinence only" sex education, even though this approach has repeatedly been shown to be ineffective...

...and that stated its abstinence programs were also directed at unmarried eighteen to twenty-nine-year-olds...

...The ban provides for a two-year jail term and a $250,000 fine for those convicted of performing this procedure...

...Given the infrequency of the procedure, and given that the Court claimed the law does not ban standard D&Es, various observers, including those sympathetic to abortion rights, argued that the shocked reproductive justice movement was overreacting to this decision...

...If Congress can ban certain kinds of D&Es by claiming that they are too disrespectful, what is to stop a state legislature —or a future Congress—from claiming that some other variation or practice is too disrespectful...

...Some doctors already do this, by injecting a chemical agent, digoxin, into the woman's abdominal and uterine wall...

...one leading antiabortion activist giddily said, after spending the day conferring with lawyers on how to leverage this decision into further abortion restrictions...

...The end of the Bush era comes none too soon, for this president's record on reproductive and sexual health is almost beyond parody...

...An intact D&E abortion involves dilating the cervix, removing the fetus intact until only the skull remains in the uterus, because it is too large to pass through the cervix, then collapsing the skull in order for it to pass through the cervix safely for the woman...

...Can we find consolation in the fact that the Bush presidency is drawing to a close, and that the prospects of a Democratic presidential victory and retention of Congress look promising at the moment...

...These allegations have been consistently disputed by mental health professionals, who state that for the vast majorDISSENT / Fall 2007 59 ity of abortion recipients, the major emotional reaction is relief...

...The cruel "gag rule" of the Reagan era, reintroduced by Bush on his first day of office, which stipulates that no U.S...

...Of the antiabortion doctors who testified before Congress in favor of the ban, none had ever performed an intact D&E, and some had never performed abortions at all...

...Or is it 30 percent or 50 percent or 80 percent...

...Most fundamentally, it becomes ever clearer that these issues are inextricably wound up with larger inequalities in society...

...Normally, moreover, one does not expect to see Congress or the Supreme Court privilege its own judgments about appropriate medical practice over that of the most relevant professional associations of doctors involved in a particular branch of medicine, in this case abortion care...

...family planning aid can go to organizations that use their own funds for abortion services or referrals, has been devastating to women in the developing world who have been denied needed contraceptive services...

...Nevertheless, those providers who have not in the past used digoxin, or similar agents, are now moving to do so...

...IN THE LONG RUN, the major impact of Carhart II on abortion access will likely be a chilling effect on young physicians who contemplate entering this field, which is already short on providers...

...Of secondtrimester procedures, the vast majority are performed using a procedure called "standard dilation and evacuation" ("D&Es") in which the physician removes the fetus in pieces, which involves inserting instruments into the uterus several times...

...The legal reach of Carhart II will go far beyond the performance of one variation of a second-trimester abortion method...

...Carhart II arguably represents the first time in history that the Court has held that physicians can be prohibited from using a specific medical procedure deemed necessary by them to benefit their patients' health...

...The antiabortion movement learned a long time ago how effective (in terms of money and time drained) this kind of legal harassment can be, even if ultimately there is no indictment or conviction or (in civil cases) monetary damages...

...An ob/gyn in South Dakota— a state that is no stranger to intense polarization around abortion—gave a forecast of the nightmare scenarios that are sure to arise in the operating suite: "If someone has a 10 percent chance of dying, is that what they mean...

...Poor women of color are disproportionately represented among abortion recipients...

...This is the administration, after all, that mandated health care coverage for fetuses, but not their pregnant mothers, under the Children's Health Insurance Program...

...Any of the Democrats, should s/he become president, will reverse some of the most egregious items mentioned above...

...And no matter what progress is made on these issues, there still remains the disastrous issue of the Supreme Court...

...But arguments about the minimal impact of Carhart II miss the point...

...But even assuming that Democrats are in control of the presidency and Congress, there will still 60 DISSENT / Fall 2007 remain enormous challenges with respect to reproductive justice...

...Justice Ruth Bader Ginsburg, who authored the dissent to Gonzales v. Carhart, took the unusual step of reading her eloquent dissent aloud from the bench...

...Sometimes the procedure is used in cases of wanted pregnancies gone horribly wrong—either because of severe fetal anomalies or because of threats to the pregnant's woman's health and sometimes her life...

...But of course, nothing in American politics or jurisprudence is "normal" when it comes to abortion, especially seven years into the George W. Bush presidency...

...Koop famously refused, in spite of his own opposition to abortion, on the grounds that no evidence existed of such a disorder, but the current antiabortion movement has worked assiduously to revive these charges...

...She worried about the future of legal abortion itself: "The Court's hostility to the right Roe and Casey secured is not concealed...

...DISSENT / Fall 2007 57 Implications About 90 percent of the 1.3 million abortions performed each year in the United States occur in the first trimester of pregnancy...

...0 NE WAY to comply with the Court's ruling is for providers to cause fetal demise before commencing the abortion...

...As Justice Anthony Kennedy put it in the majority's decision, "The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community . . ." Kennedy's statement is particularly ironic in that ever since the Roe v. Wade decision in 1973, most of organized medicine has distanced itself from abortion provision...

...that has allowed "embryo politics" to trump promising research into stem cell therapy...

...In the eyes of some knowledgeable observers, the Court's willingness to include such terminology as "regrets" and "severe depression" showed the influence of Jane Roberts, the wife of Chief Justice John Roberts, who has served as chief counsel for Feminists for Life...

...In the short run, its effect is to bring further uncertainty and demoralization to abortion care, a field already more besieged than any other branch of medicine...

...CAROLE JOFFE is a professor of sociology at the University of California, Davis, and writes widely on reproductive rights...

...And such litigation will come...

...Some abortion providers will understandably fear what an antiabortion physician might claim in a courtroom about the likelihood of a particular patient's death if the banned procedure had not been performed...

...Reproductive Politics after Bush...

...They are still working out the contours of this process, as Carhart II leaves significant confusion as to what is legally permissible...

...Carhart I, of course, was decided at a time when Sandra Day O'Connor still sat on the Court, and Bush's two appointees, John Roberts and Samuel Alito did not...

...Legal observers on all sides of the abortion issue agree that Carhart II may usher in a massive new round of attempted restrictions on abortion...

...In a stunning upset of precedent, for the first time since the Roe v. Wade decision in 1973, the Supreme Court found constitutional a law restricting abortion that did not contain an exception to protect the health of the woman...

...These claims of the negative mental health consequences suffered by abortion patients date back to the Reagan administration in the 1980s, when then-Surgeon General C. Everett Koop was essentially ordered to issue a report showing evidence of "post abortion syndrome...

...This is an administration whose operatives posted on once respected government Web sites blatantly misleading information on condom effectiveness and the alleged link between abortion and cancer...

...Nearly all of the remaining 10 percent occur in the second trimester (with a handful of exceptional cases occurring later in pregnancy, usually involving threats to a woman's life...

...This case will have lasting effects on abortion in this country, both legally and medically...

...This is the administration that appointed as head of all governmentfunded contraceptive programs a physician whose major credential was his service as medical director of an agency that declared birth control to be "degrading...

...Nada Stotland, president-elect of the American Psychiatric Association, recently stated, in response to Carhart II and its apparent legitimization of post-abortion syndrome: "Meticulous research shows that there is no causal relationship between abortions and mental illnesses . . . the (APA) recognizes no such disorder...

...one doctor exclaimed in frustration at a gathering called to discuss the decision...

...But it is not so clear-cut as to what constitutes a genuine "threat to a woman's life...

...Thus, the complex medical issues that surround intact D&E cases are known only to a relative handful of doctors in the United States...

...In certain situations, physicians deem this procedure safer, because it involves less blood loss and the physician has to make fewer passes into the uterus...

...The decision is further disturbing for its deployment of one of the most controversial and discredited tactics of the contemporary antiabortion movement—the allegation of lasting mental health consequences of an abortion...

...This reluctance to directly engage in abortion was not, if numerous polls are to be believed, because of moral objections to abortion on the part of most physicians, but rather because of a wish to avoid the controversy that abortion care brings...

...With a bar set that low, things can only improve...

...In large part because of the massive campaign against contraceptive funding mounted by the religious right, at both the state and federal levels, the Institute reports that a poor woman is four times as likely to experience an unplanned pregnancy as a higher income woman...

...I'm going to have to subject my patient to something she doesn't need—just to comply with a law made by politicians...

...Most poignantly, in light of Ginsburg's career-long advocacy for women's equality, she decried the paternalism inherent in the majority's willingness to protect "fragile" women from possible "regret" over their choice of a D&X procedure: "This way of thinking reflects ancient notions about women's place in the family and under the Constitution—ideas that have long since been discredited...

...Conceding that "no reliable data" exist on the subject, Justice Anthony Kennedy, writing for the majority, nonetheless cited the "regret," and "severe depression and loss of self-esteem" that can accompany abortion...

...That organization, whose current motto is, "Women deserve better," has long promoted claims of the negative psychological effects of abortion...

...There is a growing gap—in access to birth control and in use of abortion—between poor and nonpoor women, leading the Guttmacher Institute, the preeminent research organization in this field, to speak of "Two Americas" in reproductive matters...

...Normally, physicians at professional conferences don't strategize how to keep out of jail...

...In short, paralleling the antiabortion movement's invention of a term—"partial birth abortion"—that exists nowhere in medical literature, the movement has also invented a mental illness...

...Internationally, the Bush administration has zealously pushed its abstinence-only approach, condemned condom distribution at various UN gatherings, and demanded the omission of any mention of "family planning" and "reproductive health services" in various agency documents, including—as the recent Paul Wolfowitz scandal revealed—those of the World Bank...

...As the noted bioethicist Alta Charo wrote, with unconcealed scorn, after Carhart II was announced, "The prospect that a woman's health might be endangered by limiting access to D&X procedures is deemed insufficient to qualify as an 'undue burden...

...She expressed her dismay that the majority was willing to ban a procedure "found necessary and proper in certain cases" by medical experts...

...The task for progressives therefore is simultaneously to protect contraception and abortion against continuing right-wing attacks and to reconnect with the broadest vision of reproductive freedom...

...some physicians believe that such injections are unnecessary, carry no medical benefit to the woman, and carry risks, however slight...