Partial-birth abortion: the final frontier of abortion jurisprudence.

• Author: Bopp, James

Partial-birth abortion is the final frontier of abortion jurisprudence because it involves the killing of the child during birth--at the latest possible stage of pregnancy. The United States Congress and many state legislatures have passed bills barring partial-birth abortion, a legal term of art for a procedure in which a living intact infant is partially, vaginally delivered, then killed before being completely removed from the birth canal. There are a number of different techniques for performing partial-birth abortions. One variation, described in detail by Ohio abortionist Dr. Martin Haskell, involves (1) grasping a living fetus in the womb with an instrument; (2) pulling it into a breech presentation; (3) delivering all of the baby feet-first except for the head; (4) puncturing the skull of the living fetus with a surgical instrument; (5) inserting a suction tube into the skull hole, (6) extracting the child's brains, collapsing the skull; and (7) completing the delivery of the dead infant. The described procedure is commonly used at or after the twentieth week of pregnancy. Viability, meaning the degree of lung development necessary to permit sustained extra-uterine survival with modern neo-natal intensive care, begins at twenty-three or twenty-four weeks.

When the described procedure became widely known in 1994, there was immediate controversy. Legislative efforts to ban it began in June 1995. Congressional hearings were held, and a federal bill was passed and vetoed by President Clinton with much publicity.(1) Twenty-two state bills patterned after the federal bill have been enacted into law(2) and challenged in the courts.(3) The first court decision on the merits is Evans v. Kelley(4) in Michigan.

In Kelley, Dr. Evans and other physicians (and clinics) who performed abortions brought an action against various state officials challenging the constitutionality of a Michigan statute which prohibited partial birth abortions and sought injunctive relief. Following a bench trial, the District Court granted an injunction and held that (1) the physicians had standing to challenge the statute on the ground that it imposed an undue burden on women's right to seek abortion; (2) the statute was unconstitutionally vague in violation of the Due Process Clause of the First Amendment; and (3) the statute was unconstitutionally overbroad in violation of due process and imposed an undue burden on a woman's rights to choose an abortion.(5) Since the court based its decision on vagueness and overbreadth, it did not reach the issues of (1) legitimate state interests, (2) the basis of review, and (3) the undue burden standard under Casey.

This article first addresses the issues of vagueness and overbreadth and sets forth the arguments for the constitutionality of a ban patterned after the federal model, using the Michigan case as the example. Then it also addresses the other constitutional issues not reached by the Michigan court in order to show that the federal model passes constitutional muster. Because most state partial-birth abortion bans follow the federal model, and because subsequent federal efforts have been made to pass a partial-birth abortion ban,(6) this analysis has broad applicability.

Partial-birth abortion has a clear legislative definition making it unique from intact D&E, intact D&X (the ACOG definition), and other procedures

The Court in Kelley declared the partial birth abortion definition in Michigan, which was patterned after the federal model, unconstitutionally vague and overbroad. Specifically, the Court held that the statutory definition was "hopelessly ambiguous" such that "[p]hysicians looking to [the statute's] language for direction as to what procedures are proscribed by the law simply cannot know with any degree of confidence what conduct may give rise to criminal prosecution and license revocation."(7)

This section will demonstrate that a federal-pattern statute is not vague. It will also set forth the body of law requiring reviewing courts to resolve any perceived ambiguities in a manner favorable to upholding the statute. This section distinguishes the federal partial-birth abortion model from other terms asserted to be the correct medical terms (both in Michigan and nationally), such as "D&E," "intact D&E," "D&X," and "intact D&X," and demonstrates that (1) the federal model is accurately and unambiguously defined, (2) it is not properly called by any of these other terms, and (3) the ban does not reach commonly-used methods of abortion.

The historical background places the federal model definition in context and illuminates its meaning

Dr. Martin Haskell ignited the controversy. On September 13, 1992, Dr. Haskell presented a monograph, entitled Dilation and Extraction for Late Second Trimester Abortion ("Haskell Monograph"), at the National Abortion Federation's two-day Fall Risk Management Seminar, held in Dallas, Texas, entitled Second Trimester Abortion: From Every Angle. The monograph and numerous other materials on partial-birth abortion were collected and published as the record of hearings by the U.S. Senate Judiciary Committee on the Partial-Birth Abortion Ban Act of 1995 ("1995 Senate Hearings").(8)

In his paper, Dr. Haskell, who has done over 1,000 partial-birth abortions, described a procedure in which he used ultrasound guidance to partially extract a living fetus feet-first, then punctured the baby's skull and suctioned the cranial contents before completing the extraction.(9) He described the procedure as "a quick, surgical outpatient method that can be performed on a scheduled basis under local anesthesia."(10) Dr. Haskell, a family practitioner who operates three abortion clinics, wrote that he "routinely performs this procedure on all patients 20 through 24 weeks" (four-and-one-half to five-and-one-half months) pregnant, but excludes women who are more than twenty pounds overweight, have twins, or have certain other complicating factors.(11)

Dr. Haskell provided precise detail of the critical part of the procedure:

With a lower [fetal] extremity in the vagina, the surgeon uses his

fingers to deliver the opposite lower extremity, then the torso, the

shoulders and the upper extremities.

The skull lodges at the internal cervical os [the opening of the uterus].

Usually there is not enough dilation for it to pass through. The fetus is

oriented dorsum or spine up.

At this point, the right-handed surgeon slides the fingers of the left

hand along the back of the fetus and "hooks" the shoulders of the fetus

with the index and ring fingers (palm down).... [T]he surgeon takes a

pair of blunt curved Metzenbaum scissors in the right hand. He

carefully advances the tip, curved down, along the spine and under his

middle finger until he feels it contact the base of the skull under the tip

of his middle finger.

Reassessing proper placement of the closed scissors tip... the surgeon

then forces the scissors into the base of the skull or into the foramen

magnum. Having safely entered the skull, he spreads the scissors to

enlarge the opening.

The surgeon removes the scissors and introduces a suction catheter into

this hole and evacuates the skull contents. With the catheter still in

place, he applies traction to the fetus, removing it completely from the

patient.(12)

In a 1993 interview with Cincinnati Medicine, Dr. Haskell explained why he had adopted the method. He had been performing dismemberment abortions (D&Es) to twenty-four weeks:

But they were very tough. Sometimes it was a forty-five-minute

operation. I noticed that some of the later D&Es were very, very easy.

So I asked myself why can't they all happen this way. You see the easy

ones would have a foot[ling] presentation, you'd reach up and grab the

foot of the fetus, pull the fetus down and the head would hang up and

then you would collapse the head and take it out. It was easy .... Then

I said, "Well gee, if I just put the ultrasound up there I could see it all

and I wouldn't have to feel around for it." I did that and sure enough, I

found it 99 percent of the time. Kind of serendipity.(13)

In 1993, the American Medical News--the official newspaper of the AMA--conducted a tape-recorded interview with Dr. Haskell concerning this specific abortion method, in which he indicated that two-thirds of the partially-born children on which he performed his procedure were not dead before he began to remove them:

Am. Med. News: Let's talk first about whether or not the fetus is dead

beforehand...

Haskell: No it's not. No, it's really not. A percentage are for various

numbers of reasons. Some just because of the stress--intrauterine stress

during, you know, the two days that the cervix is being dilated.

Sometimes the membranes rupture and it takes a very small superficial

infection to kill a fetus in utero when the membranes are broken. And

so in my case, I would think probably about a third of those are definitely

are (sic) dead before I actually start to remove the fetus. And

probably the other two-third are not.(14)

Concerning the possibility of simply delivering the child alive, Dr. Haskell indicated that such a result was a possibility, but that it was not his goal:

The point here is to effect a safe legal abortion .... I could put dilapan

in for four or five days and say I'm doing a D&E procedure and the

fetus could just fall out. But that's not really the point. The point

here is you're attempting to do an abortion. And that's the goal of

your work, is to complete an abortion. Not to see how do I manipulate

the situation so that I get a live birth instead.(15)

Dr. Haskell also indicated that the overwhelming number of his partial-birth abortions were elective: "And I'll be quite frank: most of my abortions are elective in that 20-24 week range .... In my particular case, probably 20% [of this procedure] are for genetic reasons. And the other 80% are purely elective."(16)

In a lawsuit in 1995, Dr. Haskell testified...