The Roberts court and partial-birth abortion

First case coming...

‘Partial-birth' cases test abortion rights' limits
Central question facing justices: Is procedure medically necessary?
By Joan Biskupic
USA TODAY

NEW YORK — It was just after Mother's Day in May 2003 when Ilene Jaroslaw, about four months pregnant, learned that the fetus she was carrying had a fatal spinal cord and brain defect.

Jaroslaw, then a mother of two, says she was devastated but decided immediately to have an abortion. Because she wanted to have another child — and because she had had two previous cesarean-section deliveries and an unrelated surgery on her uterus — she agreed with her doctor's recommendation to undergo a procedure that would do as little damage as possible to the uterus.

“There was absolutely no hope at all,” says Jaroslaw, a 43-year-old lawyer in New York City who talked with USA TODAY about her experience. “This baby was not going to survive long.”

For Jaroslaw, having what Congress and critics of the procedure call a “partial-birth” abortion was an intensely personal health decision that led to a happier ending: In 2004, she got pregnant again and delivered a healthy baby girl.

The episode also made Jaroslaw a symbol of the ongoing debate over whether Congress' effort to ban “partial-birth” abortion violates a woman's right to end a pregnancy — a question that goes before the Supreme Court on Nov. 8. Under a federal law passed by Congress in October 2003 and tied up in the courts ever since, Jaroslaw could not legally have undergone the procedure because her life was not in danger.

Jaroslaw's reasons for having the procedure — to preserve her ability to have more children by avoiding the hemorrhaging and perforation of the uterus that can occur with other abortion methods — would not have cleared the legal hurdle set by Congress.

That's partly why the pair of cases that come before the Supreme Court next week are widely viewed as a major test of efforts to restrict abortion. The issue is not the fundamental question of whether abortion should be legal, first established by the court's ruling in Roe v. Wade in 1973. Instead, the cases test the Republican-led Congress' power to limit the reach of that ruling by restricting medical options for women.

The law is called the Partial-Birth Abortion Ban Act of 2003. Lawyers for the two challengers now before the Supreme Court, Eve Gartner of Planned Parenthood and Priscilla Smith of the Center for Reproductive Rights, note that there is no medical procedure known by that name and contend that the phrase is needlessly offensive and misleading.


On a more technical level, the cases put on exhibit dueling medical opinions over whether certain second-trimester abortion procedures are ever necessary.

For the court, the cases — Gonzales v. Planned Parenthood Federation of America and Gonzales v. Carhart — represent the first significant test of whether abortion rights in America will change now that moderate Justice Sandra Day O'Connor, a key vote in favor of such rights, has retired.

Six years ago, when the justices struck down state bans on “partial-birth” abortions because the laws did not include exceptions for when a woman's health was at risk, O'Connor cast the decisive fifth vote on the ideologically divided, nine-member court. Last term, she was replaced by Samuel Alito, a more conservative judge who, as a member of a lower court, voted for abortion restrictions that O'Connor later rejected.

The federal ban — which is similar to the state laws voided by the high court six years ago — has been rejected by three sets of U.S. district courts and appeals courts. The lower courts said Congress' ban violates women's rights to abortion because it lacks a health exception and is too vaguely written.

The lower court judgments conflict with Congress' assertion that “partial-birth” procedures are never the best option to preserve a woman's health.

“This is an excellent case to test the direction of the court on abortion rights,” Georgetown University law professor Randy Barnett says.

Abortion rights groups such as Planned Parenthood say Jaroslaw and thousands of women like her personify the need to preserve the second-trimester procedures known in the medical community as “intact dilation and evacuation” (or intact D&E) and “dilation and extraction” (D&X).

The methods involve dilating a woman's cervix to allow most of the fetus to emerge into the vagina intact, rather than dismembering the fetus in the uterus by using forceps and other instruments. In the intact method, a doctor then suctions out the fetus' brain to collapse the head and allow delivery.

The American College of Obstetricians and Gynecologists has reported that such methods increasingly are viewed as the safest abortion procedures for the second trimester of pregnancy, roughly the 13th to 26th weeks of gestation.

Second-trimester procedures account for about 11% of the estimated 1.3 million abortions performed in the USA each year, according to the Guttmacher Institute, a research group that supports abortion rights. It's unclear, however, how many of those abortions are done with the intact D&E or D&X methods because no one keeps a precise count.

The Bush administration, in defending the Partial-Birth Abortion Ban Act of 2003, has argued in court papers that Congress had solid grounds to believe that any procedure in which a doctor “partially delivers a (living) fetus intact … and then kills the fetus” is never medically necessary.

The government is appealing a ruling by the U.S. Court of Appeals for the 9th Circuit, in a case begun by Planned Parenthood, and a ruling by the U.S. Court of Appeals for the 8th Circuit, in a case started by Nebraska physician LeRoy Carhart.

U.S. Solicitor General Paul Clement has told the justices that the “gruesome” procedure “resembles infanticide.”

Clement has said Congress' ban is not unconstitutional because there are alternative methods of second-trimester abortions that would remain legal. Those include a standard D&E procedure in which a doctor dismembers the fetus in the uterus, and another method known as “induction,” in which a woman is given drugs that cause her to go into labor and deliver the fetus.

Groups filing briefs in support of the administration include the American Association of Pro Life Obstetricians and Gynecologists. The association argues that such alternative methods are medically appropriate even for women such as Jaroslaw with uterine scarring from a prior cesarean section or other uterine surgery.

Elizabeth Shadigian, a physician affiliated with the University of Michigan's medical school who is president of the pro-life group, says there is little evidence to suggest that “partial-birth” methods are better in preserving a woman's health.

“There is almost no data on it,” Shadigian says. “It's not good enough that someone believes it's better. You have to prove it's better.” She said women should wait until studies are done on “the long-term effects of the procedure.”

In court filings, Planned Parenthood counsel Gartner says that if Congress' ban is allowed to take effect, doctors would not be able to give their patients the best medical care.

Physicians would be “chilled from continuing to provide these procedures, … (and) women's liberty will be infringed and their right to choose abortion unduly burdened,” Gartner says.

She also notes that the records from the cases now before the Supreme Court show several instances in which women suffering from serious medical conditions or carrying fetuses with severe anomalies would benefit from the intact D&E procedure.

“Even for women whose health condition is not compromised, intact D&E is a significantly safer method of abortion,” Gartner says.

Clement acknowledges in his filings that physicians disagree over the necessity for the intact D&E and D&X methods. However, he insists that the justices must defer to Congress' finding that “there is substantial evidence … that partial-birth abortion is never” medically necessary.

Jaroslaw, a graduate of Harvard College and of Georgetown Law School, says she came forward to speak about her abortion because “the issues aren't as simple as people think. Nobody in advance of a diagnosis says, ‘I want that procedure.' What people want is proper medical care.”

Jaroslaw, a native of Flushing, N.Y., married a fellow lawyer, David, in 1992. She gave birth to a boy in 1997 and a girl in 1999. She says the children were delivered by cesarean section because she previously had uterine fibroids and other gynecological problems.

Jaroslaw says that when she became pregnant in 2003, everything looked good in early tests. “So we tell our families I'm pregnant. We tell friends. A few weeks after that, I tell people at work. I wasn't worried.”

About 17 weeks into the pregnancy, however, a sonogram showed that part of her fetus' brain was missing. The diagnosis was anencephaly, which is fatal.

Jaroslaw says she and her husband considered abortion the only option. She says she did not want to wait a full nine months to deliver a child that would not survive.

“The idea of being pregnant for so many more months and having people ask about the baby, it would have been a nightmare,” Jaroslaw says. She was also concerned that her children would be traumatized by having their sibling be born and die. She says she talked with her rabbi, and he supported her choice.

Jaroslaw says her desire for a third child led her doctor to recommend that she have the fetus removed intact, to avoid trauma to her uterus. “When you've had so many cuts in the uterus, you want as little instrumentation and probing around as possible.”

Coincidentally, she underwent the abortion as Congress was debating its ban on “partial-birth” abortion. “I asked my doctor whether, if the bill passed, the procedure I was about to have would be illegal,” Jaroslaw says. “He said yes.”

Bush signed the bill into law in November 2003.

“I'm a family person,” Jaroslaw says. “I don't think I'm unique in my situation, except that I will talk about it. When I went back to work, people opened up to me with their own stories.”

So how might the Supreme Court — with Alito and Chief Justice John Roberts, who replaced the late William Rehnquist last year — view the most recent attempt to restrict abortion?

The “partial-birth” cases arrive at the court at a time when few Americans — 15% in a Gallup Poll in May — believe abortion should be banned in all circumstances. That poll, typical of nationwide surveys, found that most Americans (53%) believe that abortion should be legal but with restrictions.

The high court generally has reflected that sentiment since Roe v. Wade, upholding abortion rights while opening the door to limits. The current cases could provide a hint of whether greater restrictions might be imposed with the new justices on the bench. However, a veteran justice — Reagan appointee Anthony Kennedy — is more likely to be the key player.

In 2000, when the court voted 5-4 to strike down state bans on “partial-birth” abortion that lacked an exception for cases in which a woman's health was at risk, the bench was deeply divided. Kennedy, who had provided a crucial fifth vote in 1992 when the justices affirmed abortion rights, bitterly dissented in 2000. He said government should be free to outlaw the “abhorrent” procedure and that states had a legitimate “concern for the life of the unborn and for the partially born.” This time, a big question will be whether Kennedy, a frequent swing vote on the court, still supports a ban on the procedure without a health exception.

If he does, the court's reshaped conservative wing — Justices Antonin Scalia and Clarence Thomas, along with newcomers Roberts and Alito — could be positioned to uphold Congress' ban. Scalia and Thomas consistently have voted against abortion rights. Roberts' record as a lawyer in the Reagan and first Bush administrations and Alito's rulings as a lower court judge suggest that they also are likely to take a limited view of such rights.