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"I have no idea what I'd do now," says Audrey Eisen, a 35-year-old microbiologist who lives in Virginia. Eisen is trying to picture herself needing an abortion after the first trimester, or 12 weeks, of pregnancy. The scenario is more than hypothetical for her, since she had an abortion on the first day of her 16th week of pregnancy, after learning the fetus had a severe genetic problem that would cause it a painful death after only a few days of life. That was last year, though, before Congress passed a ban on so-called partial-birth abortion.
The new prohibition, which Congress approved on October 21 and which pro-choice groups challenged last Friday, even before President Bush signed it into law, wouldn't allow Eisen that choice. Its supporters insist the "partial birth" ban targets a single procedure known as dilation and extraction, or D&X. But the legislation makes it illegal to deliver a "living fetus
until either its entire head is outside the body of the mother," or, in the case of breech presentation, until the fetus is delivered past its navel. That description could apply to other methods, such as dilation and evacuation, which is what Eisen underwent. "What doctor would perform one for me?" asks Eisen. "I'd be stuck."
Indeed, what began as a clever political ploy could profoundly change the ways some doctors provide abortions, if the legal challenges fail. Even LeRoy Carhart, a plaintiff in both the current challenge to the ban and in the Supreme Court case that declared Nebraska's ban unconstitutional three years ago, wouldn't risk his career by breaking the law. "The bill would make most every procedure that I do from the 12th week on illegal," says Carhart, a specialist in second-trimester abortions. The state could take away the doctor's license based only on one person's claim that Carhart performed a "partial-birth" abortion. "And I can't jeopardize my ability to care for other women" who need abortions in the first trimester, says Carhart, one of only five abortion providers in Nebraska.
There is no such technique as "partial-birth" abortion taught in medical schools or outlined in medical textbooks. Nevertheless, legislators have given that label to a set of steps. And government officials may soon be charged with the most difficult operation of all: enforcing a ban on a procedure that doesn't exist. To David Grimes, former head of abortion surveillance at the federal Centers for Disease Control and Prevention and an obstetrician-gynecologist who has treatedand terminatedwomen's pregnancies for 30 years, the prospect is as bizarre as it is calamitous.
"What, are enforcement agents going to be stationed in the O.R. with us? And what, are they going to be watching us to make sure we don't deliver 'any part of the fetal trunk past the navel'?" he says, reading from the bill. "What does that mean, anyway? Does 'past' mean above or below? It's all just obstetrical nonsense." Nonsense though it may be, the "partial-birth" ban and the debate over it have been extremely effective in pushing moderates over the fence into the anti-abortion camp since the term itself emerged eight years ago. In 1996 and 1997, two similar bills were passed by Congress before being vetoed by President Clinton.
Now, for the first time, Congress has criminalized a safe medical procedure. In the meantime, mainstream media have gradually erased the quotation marks around the term, accepting the strategic characterization as factand tilting the political terrain.
That the term "partial-birth" was intended as a political crowbar is an open secret. "The 'partial-birth' abortion ban is a political scam but a public relations gold mine," Operation Rescue founder Randall Terry has admitted. "The benefit of the bill is the debate that surrounds it." Supporters are already capitalizing on the victory. " 'Partial-birth' abortion is but the tip of an ugly and an unseemly iceberg," Representative Chris Smith, a pro-life New Jersey Republican, announced after the abortion ban cleared the Senate last month. "Let us be clear: Abortion is child abuse."
The new law is anything but clear, though. While supporters say the ban focuses on D&X, which they say is a type of late-term abortion, the legal description of the procedure is broad enough to apply to techniques performed as early as 12 weeks. It was partly for this reason that the U.S. Supreme Court struck down Nebraska's ban three years ago in a 5-4 decision. This time, anti-abortion lawmakers could have narrowed the definition (and allowed the procedure when a woman's health was at stake). Instead, they took a gamble, leaving in those parts of the lawthe reasons the justices found it unconstitutional the first time around.
"It would have been very simple for them to ban D&X. The Supreme Court told them how to do it," says Priscilla Smith, director of the domestic legal program at the Center for Reproductive Rights. So why would ban supporters choose to target a wide range of abortions when they knew that similar laws didn't hold up in court? "They want to ban all abortions, so they're starting with earlier ones," says Smith. Even if pro-choice groups succeed in making the law permanently unenforceable, this long shot has made a strong statement. But if the legal challenge somehow fails now, or if the case makes it back to the Supreme Court and the court's makeup shifts by even a single vote, the law will achieve much, much more.
"It could definitely affect what I do," says Paul Blumenthal, a provider of abortions and associate professor of obstetrics and gynecology at Johns Hopkins University. Even if he doesn't begin with the intention of performing any of the steps outlined in the law, Blumenthal says, things can change quickly during the course of an abortion: "Something can happen and then I have to proceed in a way that can cross the line. I wouldn't have time to call the legislature and get an injunction."
Of course, for abortion providers to actually get arrested, there would have to be witnesses. "All you need is a couple of zealots," explains Wendy Chavkin, chairperson of the New York-based Physicians for Reproductive Choice and Health. "If some anti-abortion nurse teams up with a prosecutor, a physician could face these trumped-up allegations and prison." Indeed, there is precedent for anti-abortion medical practitioners spurring prosecutions of their colleagues. In 1975, Massachusetts physician Ken Edelin was indicted for manslaughter after performing a legal abortion at Boston City Hospitalbased on a tip from operating room staff. While any arrest can't happen until the court challenge is decided, the possibility is enough to deter some doctors. "Physicians have known for a while that abortion providers have to face picketers, harassment, the harassment of their families, and bullets," says Chavkin. "Now they have to worry that somebody is going to make this claim against them."
Some doctors may think they're impervious to the threat, thoughor maybe it's that the ban's coy legal language is truly lost on them. Albert Thomas, director of obstetrics and family planning at Mount Sinai Medical Center in Manhattan, has done "hundreds and hundreds" of second-trimester abortions. Many of these women, he says, knew they wanted abortions early in pregnancy but ended up in the second trimester because of problems finding payment. Others came from states where they couldn't find abortion providers. Others, like Audrey Eisen, didn't discover problems with the fetus until well into pregnancy. Though confusion over the ban may tie up the courts for years to come, to Thomas the matter is simple: "I don't do anything called a 'partial-birth' abortion," he says, "because that just isn't a medical procedure."