USA: Commentary on the ‘partial-birth abortion’ ban

The New England Journal of Medicine this week publishes two perspectives on the Supreme Court ruling. 

In a piece titled The Partial Death of Abortion Rights, Professor R. Alta Charo, J.D., professor of law and bioethics at the University of Wisconsin, Madison, and a member of the board of directors of the Guttmacher Institute, argues:

‘The federal statute makes no distinction between pre-viability and post-viability abortions and bans the D&X procedure in both situations, even in cases in which physicians believe that the alternatives are more dangerous to a woman’s health. 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.” Justice Kennedy’s majority opinion in Gonzales v. Carhart endorses this conclusion, stating that it is “legitimate” because “a fetus is a living organism within the womb, whether or not it is viable outside the womb” and that “choosing not to prohibit [a brutal and inhumane procedure] will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.”

‘And thus the balance of interests shifts, with women’s health no longer paramount but rather societal morality and the state’s interest in life even before the point of viability outside the womb.’

In a piece titled The Intimidation of American Physicians, Michael F. Greene, M.D., an associate editor of the NEJM and professor of obstetrics, gynecology, and reproductive biology at Harvard Medical School and director of obstetrics at Massachusetts General Hospital, argues:

‘In the same way that it might be difficult to discern the intent of a physician during the conduct of a pregnancy-termination procedure, it is difficult to know the true intent of the 108th Congress when it passed the partial-birth abortion bill in 2003. Was the intent, as the law claims, simply to ban “a gruesome and inhumane procedure that is never medically necessary”? Or was this law the carefully calculated first step in a larger strategy for the gradual erosion of access to abortion services?

‘No aspect of medicine seems to attract as much popular and political attention as reproductive medicine. In recent years, our government has restricted women’s options for preventing conception and now for coping with pregnancies that threaten their health or are simply unplanned and undesired. Both health care providers and patients should be alarmed by the current degree of intrusion by our government into the practice of medicine and even more so by the apparent trajectory that it seems poised to follow in the near future.’

New England Journal of Medicine, 23 April 2007.