Patterico's Pontifications

11/9/2006

Partial-Birth Abortion Argument

Filed under: Abortion,General — Patterico @ 6:37 am



I listened to all of the argument in the first partial-birth abortion case last night, and most of the second. Let me briefly summarize the points that jumped out at me. I’m going from memory here; if anyone sees any errors in what I write, they are not intentional; please correct any mistakes.

Solicitor General Paul Clement — who is absolutely brilliant, by the way — argued in support of the law. According to his argument, D&E (the procedure in which the doctor dismembers the fetus in the womb and then removes the parts) is by far the most common procedure, and is employed in about 95 percent of mid- and late-term abortions. D&X (partial-birth abortion) is done in only about 5 percent of cases.

The main differences between the two appear to be the dilation regimen and the number of passes that it takes a doctor to remove all of the fetus.

D&E involves less dilation, because the baby can be broken into little pieces before they are removed. The limited dilation is seen as having health benefits for the mother. Greater dilation involves additional risky procedures and possible side effects for the mother. However, D&E involves a greater number of “passes” for the doctor to remove all of the pieces of the dead fetus, which makes it riskier in that sense.

D&X requires far more dilation, but if everything goes right, there should be only one “pass” to remove the fetus.

It appears to be the case that the use of one procedure versus another is a matter of a particular doctor’s personal preference. In other words, most doctors simply prefer the standard D&E (dismemberment in the womb) method, and believe it is always safer. A small minority of doctors prefer D&X, and believe it is always safer.

The Justices and lawyers discussed the situation where a doctor sets out to do one procedure, but ends up doing the other. There are two interesting points about that.

First, it is very common for a D&X (partial-birth abortion) to turn into a standard D&E. There was evidence that one plaintiff doctor who performs the D&X procedure is only successful in doing so 1/3 of the time. He always sets out to do a D&X, but 2/3 of the time, the D&X (partial-birth abortion) procedure turns into a D&E.

Clement argued that, for one thing, this means that any woman seeking an abortion from a doctor who does D&X can always get a D&E. Always. Every doctor who provides D&X can provide D&E, because most of the time that’s what they end up doing anyway.

By contrast, doctors who set out to perform a D&E almost always succeed. One doctor says he is successful 100 percent of the time; another says he is successful 99 percent of the time.

Clement argued that, as to those extremely rare situations in which a doctor sets out to do a D&E, but due to excessive dilation ends up doing a D&X, the mens rea requirement of the statute would prevent punishment of the doctor. In other words, to be punished under the statute, he must intend to do a D&X (which involves a different dilation protocol) from the very inception of the procedure.

As to the tiny, tiny minority of situations in which particular medical conditions might call for a D&X to be safer than a D&E — such as a cervical cancer or preeclampsia situation in which there is a great risk from puncturing the uterine wall — Clement argued that the fetus could be killed by administering an injection to the fetus while still in the womb. The only evidence of a risk from doing that, he argued, is the same risk you have any time you have an injection. In other words, every medical procedure carries risks, but the risk of an injection is vanishingly small.

In the even smaller universe of cases where 1) D&X is clearly safer due to a medical condition; and 2) injection is not feasible, Clement argued that sustaining the law on its face would not preclude an as-applied challenge. Clement argued that there is no evidence that these two conditions ever exist in the same situation.

Clement had a very interesting bottom line, and it’s based on precedent. He admitted that, while most doctors find D&E preferable, there is an argument by a small minority of doctors that D&X provides marginally fewer risks. Because fetal demise can be accomplished through a simple injection, he argued, that risk is very, very marginal — but it may exist.

But, he said, that is permissible under Supreme Court precedent. It used to be the law that any restriction interfering with the doctor-patient relationship, and creating a marginal extra risk to the woman, would be considered illegal. But that was changed in Casey, which said the prior precedent underweighted the state’s interest in life.

Casey upheld a 24-hour waiting period that an association of doctors said would result in increased health risks to a woman. No matter, said the Justices — if there is a risk, it is a small one.

Under that precedent, Clement argued, the small risk involved in causing fetal demise before delivery by administering an injection is only marginal. It is not unconstitutional to impose such a minor risk, he said.

Leading to an interesting question for abortion supporters: most of you no doubt believe that the state should in no way interfere with the doctor-patient relationship. But current precedent allows some interference with that — such as the 24-hour waiting period. If you could upend the Casey precedent that says the state has some right to interfere with a woman’s right to choose, and go back to the pre-Casey line of rulings that says there must be no such interference, would you?

How strict is your devotion to precedent?

8 Responses to “Partial-Birth Abortion Argument”

  1. If what is sought is to evacuate the uterus, it is safer to finish delivery without killing the fetus (baby). It takes less time and by avoiding the use of penetrating instruments to pierce the head of the baby, there is much lower risk of acciedentally hurting the mother. All the rest is bunk. and the argument that it is very rare, means that thousands of abortions of this kind are “very few”.

    Raul Alessandri MD (97b150)

  2. This is the question I have been raising on another thread, and that most leftists have been dodging: if you’re right, what is the justification for abortion vs. delivery (at least post-viability)?

    Patterico (de0616)

  3. Leading to an interesting question for abortion supporters: most of you no doubt believe that the state should in no way interfere with the doctor-patient relationship.

    Huh. I’m pro-choice, but like a lot of pro-choice folks, I’m generally for something close to the status quo. I would not like unfettered third-trimester abortions permitted. Perhaps I’m misunderstanding our host, or perhaps I misestimate the general view of the public.

    Still, I’d be surprised if most pro-choice folks wanted that changed. (I think the court should either uphold the partial birth abortion ban entirely, or it should come very close to doing so, FWIW.)

    –JRM

    JRM (de6363)

  4. This is the question I have been raising on another thread, and that most leftists have been dodging: if you’re right, what is the justification for abortion vs. delivery (at least post-viability)?

    There is none. harshly put, it’s just a way to permit a woman to decide not to be a mother.(An opportunity to reproductive choice that Men do not have…ever, save for rigourous birth control) Which in and of itself is a little delusional. In fact she was a mother right up until the demise of the fetus. My question is, in these instances, what the heck was this woman thinking about for the preceeding months? To be sure , as Dr. Alessandri must have seen, there is that overweight woman who discovers her pregnancy in the ER. For the most part however, I am confident that those “rare” patients that require/request D&X truly has sufficent ‘lead time’ to obviate this procedure.

    paul from fl (001f65)

  5. If one thinks the state should, in no way, interfere with the doctor-patient relationship then how can one support FDA restrictions on drugs and other procedures?

    Raich, for example, imposes a ban on prescribing marijuana in cases where it has clear medical benefit (e.g. anti-nausea for chemotherapy patients). This, arguably, poses an increased risk to some patients.

    Thalidomide has been shown to extend the useful life of certain terminal cancer patients (I have seen this), yet its side-effects have left it widely unavailable by FDA order.

    So, to assert as a matter of law, that any interference in the doctor-patient relationship is unsupportable is patent nonsense.

    Kevin Murphy (0b2493)

  6. It used to be the law that any restriction interfering with the doctor-patient relationship, and creating a marginal extra risk to the woman, would be considered illegal. But that was changed in Casey, which said the prior precedent underweighted the state’s interest in life.

    I think the clarification/change in Casey was positive. However, I don’t see how requiring doctors to use D&E instead of D&X does anything substantive to further “the state’s interest in life.” It is a purely symbolic interference in the doctor-patient relationship.

    The argument now before the court efectively says “maybe we can’t tell you NOT to have an abortion, and maybe we can’t tell you WHEN to have an abortion, but dag-gummit, we can tell you HOW that abortion shall be conducted.”

    In terms of which choice is best left up to the patient and doctor – the choice to have an abortion, the choice of when to have an abortion, and the choice of how to have an abortion – it seems to me that the last item is the most private, and the least relevant to the state’s interest in life.

    Phil (88ab5b)

  7. I read both the transcripts and the thing that kept going through my head was: “What the heck is the Supreme Court doing deciding this? How did the Supreme Court get into the business of micromanaging medical procedures?”

    The answer of course is that they legislated Roe and once they turned into a legislative body, they just can’t get themselves out of it.

    *sigh*

    Hoystory (de9da0)


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