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Partial-Birth Abortion Ban Makes Waves Michael Arnold Glueck and Robert J. Cihak, The Medicine Men In a recent 5-4 decision, the U.S. Supreme Court upheld the right of Congress to forbid partial-birth abortions, or intact dilation and extraction (Gonzales v. Carhart), without an exception for the health of the mother. The Feminists Majority Foundation told its members that the decision was a "direct assault on Roe v. Wade" (LifeNews.com, April 19). Although The Associated Press stated that most Americans do not support the ban, a variety of polls show broad-based bipartisan support. For example, a March 2006 poll by Fox News showed that Democrats support the ban 51 percent to 35 percent; women, by 66 percent to 23 percent; men, by 55 percent to 32 percent; and Americans overall, by 61 percent to 28 percent (Lifenews.com April 18). Writing for the majority, Justice Anthony Kennedy distinguished the federal statute from the Nebraska one overturned in Stenberg v. Carhart, stating that it had a more precise definition of the prohibited procedure. A "Perspective" by R. Alto Charo, J.D., in The New England Journal of Medicine called the decision "the partial death of abortion rights." Charo is a professor of law and bioethics at the University of Wisconsin, Madison, and a member of the board of directors of the Guttmacher Institute. Claiming that these procedures are "rare," the author said that in 2000 only 2,200 were performed by 31 providers, accounting for 0.17 percent of the 1.3 million abortions occurring in the United States that year. Congress had found that "a moral, medical and ethical consensus exists that partial-birth abortion is a gruesome and inhuman procedure that is never medically necessary and should be prohibited."
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Charo comments that when government involvement in medical decision making is warranted, "it is best handled through dispassionate, evidence-based expert reviews." The "mere prospect of being investigated by a possibly hostile prosecutor may well have a chilling effect," as on physicians who determine that the procedure is indicated to save a motherıs life. Justice Kennedyıs conclusion that the burden imposed by the ban is "legitimate" and not "undue" because "a fetus is a living organism within the womb" shifts the "balance of interests" away from women's health to "societal morality and the state's interest in life." Justice Ruth Bader Ginsburg notes that, "the Act, and the Court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this court and with increasing comprehension of its centrality to women's lives" (Charo RA. N Engl J Med April 23). In another "Perspective" in the Journal, Michael F. Green, M.D., director of obstetrics at the Massachusetts General Hospital and associate editor of the Journal, headlines the ban as "the intimidation of American physicians." Dutch oncologists have bravely performed euthanasia even when it was still illegal and reported to prosecutors, confident that they would not be prosecuted if they had acted, "transparently and in the best interest of the terminally ill patient."
American physicians have "no confidence that their own judicial system would judge them fairly under similar circumstances." The dilemma faced by abortionists is highlighted by a British study showing that one baby in 30 survived an abortion attempt. The study covered the outcomes of 3,189 abortions done at West Midlands hospitals between 1994 and 2005 because of fetal abnormality. Many of the 102 survivors were between 20 and 24 weeks of gestation, just before or right at the point of viability.
Without intensive care, they had no chance of living more than a few hours. The Supreme Court ruling "catapults abortion back into the '08 presidential race" (NY Times April 19). Strongly disapproving of the decision were Hillary Clinton, Barack Obama, and John Edwards. Supporting it were John McCain, Mitt Romney, Mike Huckabee, and Rudolph Guiliani. Americans face enough problems in the 2008 election without suffering through another distracting and meddlesome abortion debate. Editor's Note: Michael Arnold Glueck submitted this week's commentary. Michael Arnold Glueck, M.D., comments on medical-legal issues and is a visiting fellow in Economics and Citizenship at the International Trade Education Foundation of the Washington International Trade Council. Robert J. Cihak, M.D., is a senior fellow and board member of the Discovery Institute and a past president of the Association of American Physicians and Surgeons.
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