A doctor’s right to choose

Two surgical options for late-term abortion may be reduced to one if antiabortion activists, with help from the Bush administration, get their way.

Topics: Supreme Court,

A doctor's right to choose

The woman is positioned flat on her back, legs raised well above her shoulders, her ankles supported by hanging cloth loops. Her arms are outstretched on the retractable wings of the surgical table. She stares at the ceiling as the OB/GYN strides into the operating room and the anesthesiologist gets to work.

She is 34, has children at home, is missing a front tooth and is currently 23 weeks pregnant. Like the seven other pregnant women scheduled to pass through this operating room today, she will have a surgical abortion. Her doctor will decide, based solely on her medical circumstances, which technique to use. Congress already has called repeatedly for a ban on one of his choices — a procedure called intact dilation and extraction, dubbed “partial birth abortion” by opponents of its use. And the surgeon is well aware that his ability to base his decision on an evaluation of his patient’s medical circumstances may not last. But if, for this woman’s safety, the doctor opts to perform a so-called “partial birth abortion,” he will be operating — for now, at least — within the law.

In approximately 40 minutes, the woman is gently shaken by a nurse, and she blinks slowly in a sedated haze. Her pregnancy is over as the result of an intact dilation and extraction. As she struggles to consciousness, the nurse leans over her and whispers, “Don’t forget to thank the doctor, now.” Had she the means, the patient also might have extended her thanks to the Supreme Court — or at least to the five justices who left her health in her doctor’s hands.

In a ruling two years ago, the Supreme Court (in Stenberg vs. Carhart) found that a Nebraska ban on abortion by intact dilation and extraction was unconstitutional for two reasons: It provided no exception for the “health of the woman” and without such an exception, the ban placed an “undue burden” on a pregnant woman’s constitutional right to choose. Furthermore, after hearing expert testimony, the court found a “substantial likelihood” that the procedure was “a safer abortion method in certain circumstances.”



The Stenberg vs. Carhart decision effectively knocked down bans on abortion by intact dilation and extraction in 31 states, but the ruling, and the earlier vetoes by then-President Bill Clinton of two similar bans passed by Congress, did not quash efforts to outlaw the procedure. The justices were divided 5 to 4 on the issue, leaving abortion foes with potential wiggle room for new ban proposals, and opening up the possibility of rancorous debate on any upcoming nominations to the court. Indeed, abortion foes in the House of Representatives last month proposed, yet again, a bill that would ban the procedure. The legislation, which does not include an exception for a woman’s health, is nearly identical to the ban that was found unconstitutional, and is scheduled to be debated Wednesday on the House floor.

At this point, it is all but certain that the country is in for a grueling political trudge back into the womb. And that might be a good thing. In the 29 years since Roe vs. Wade, an inexorable shift has occurred in the abortion wars, one that has turned attention away from a pregnant woman’s health toward the primacy of fetal rights. A majority of the bans on partial birth abortion at the state and federal level failed to take into consideration the health of the woman, and the Bush administration, in its consistent moves to advance fetal rights and afford legal protection to the unborn, as well as in its support for the newest proposed ban on partial birth abortion, is clearing the way for a focus on the fetus at the expense of the woman.

Last January, the Department of Health and Human Services announced that the federal definition of “child” would now begin at conception, a step, said HHS Secretary Tommy G. Thompson, to “help poor mothers [to] be able to take care of their unborn children and get the medical care they absolutely, vitally need.” While it is not clear how a policy that offers health insurance to a fetus, but not to its mother, might advance the health of poor women, it firmly places fetal health above maternal health, and sets the stage for ghastly conflicts of interest between a woman and her fetus’s doctor.

Despite its prevalence in the public debate, the term “partial birth abortion” is not recognized by the American Medical Association or the American College of Obstetricians and Gynecologists. The phrase came into use shortly after Dr. Martin Haskell presented an abortion technique called intact dilation and extraction, or intact D&X, at the 1992 National Abortion Federation Risk Management Seminar.

Intact dilation and extraction is a variation on the most commonly used — and constitutionally protected — second trimester abortion procedure: dilation and evacuation, or D&E. (Most first trimester abortions involve dilation and curettage, or D&C, a technique that uses suction to terminate a pregnancy.) The Centers for Disease Control and Prevention (CDC) reports that dilation and evacuation procedures account for the majority of abortions performed after 12 weeks of pregnancy.

During a dilation and evacuation, the doctor terminates the pregnancy by dismembering the fetus inside the uterus or as it is extracted from the uterus into the vagina. The fetal skull, which after approximately 16 weeks of pregnancy is too large to pass through a cervix that is only partially dilated, is crushed with forceps prior to extraction from the uterus. Fetal bones begin to calcify at about 17 weeks of pregnancy, so with each dismembered fetal part comes the attached risk of injury to the woman of uterine tears or perforations by bony fragments, as well as the possibility of leaving a fetal fragment inside the uterus — something one district court judge called a “horrible complication.”

In an intact dilation and extraction, the not-yet-viable fetus is removed from the uterus as a whole, except for the fetal skull, which is collapsed via a cervical incision and suction rather than crushed with forceps. In this procedure, say those who defend it, there is no fragmentation of bone, which minimizes the risk to the woman. For this reason, say proponents, intact dilation and extraction significantly reduces the number of times that potentially damaging instruments are introduced into the uterus; it prevents certain medical complications to the woman, such as uterine perforation; reduces the likelihood of retained fetal parts in the womb, which can lead to infection; and, finally, as a shorter procedure, it allows for less bleeding and a lower risk of infection.

Antiabortion activists, infuriated by the advent of a new variation on an unforgivable act, adopted the phrase “partial birth abortion” to describe a procedure they believed amounted to murder. The term became ingrained in the public debate, and helped shift the focus of antiabortion activists from opposing women’s health-and-reproductive rights to supporting fetal rights.

Meanwhile, abortion-rights advocates did some dissembling of their own. They focused on the idea that partial birth is only used to terminate severely deformed fetuses, instead of airing a concern that if the procedure is banned, women will not have the right to the safest abortion available. As the debate has raged for nearly a decade, doctors and pro-choice activists who support the legal option of abortion by intact dilation and extraction argue that, because the end result of an abortion is always the end of a pregnancy, it should be the goal of the surgeon to deliver the best possible care to the woman as he or she accomplishes that task. The debate over when life begins may never be settled, they argue, but the issue of the woman’s relative health can be medically determined.

The issue of the primacy of a woman’s health is crucial to the debate over bans on abortion by intact dilation and extraction. Under Roe vs. Wade, a woman may choose to terminate a pregnancy up until the point when the fetus is considered able to live outside the womb. Fetal viability, as this condition is called, generally happens around 24 weeks, but can come as late as 26 weeks or the end of the second trimester. After that point, Roe allows states to restrict abortions or even prohibit them; however, exceptions must be made to preserve the life or health of the woman.

In Doe vs. Bolton in 1973, the Supreme Court further defined health as it relates to abortion: “Medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health.”

According to the Alan Guttmacher Institute, a reproductive health research group, an estimated 43 percent of women in the United States will undergo at least one abortion by the time they are 45. Intact dilation and extraction is only an option for abortions done after 16 weeks, which means it is not a common procedure. The CDC reports that 88 percent of abortions in the U.S. occur in the first 12 weeks of pregnancy; nearly 99 percent occur within the first 20 weeks; and only about 1 percent of terminations occur past 21 weeks of pregnancy. The annual total of intact dilation and extraction procedures was estimated to be approximately 650 of the 1.4 million abortions performed in 1996, the last year for which data is available.

Doctors and activists who argue that intact dilation and extraction is a much safer procedure for some women have no studies to prove their point, but a visit to the operating room does make aspects of their argument very clear. I spent a day in the operating rooms of a major New York teaching hospital to watch both procedures performed and was present for five second-trimester abortions involving fetuses ranging from 19 to 23 weeks. Of the five abortions I observed, the first three were intact dilation and extractions, and the last two were standard dilation and evacuation procedures.

The 34-year-old woman estimated to be 23 weeks pregnant was the first case. She had a cough that morning, and because of a risk of choking while under the standard general anesthesia, she received an epidural, which numbs the patient from the waist down, prior to the procedure. The doctor said he would determine which procedure to use, D&E or intact D&X, based on the conditions as they presented themselves. He chose to do the latter.

This was the most difficult procedure to watch, mostly because of the pain experienced by the least sedated of the women. As the doctor, with a resident by his side, slid most of his hand deep into the patient’s vagina, she moaned horribly and could not remain still. Only when the anesthesiologist administered a drug to increase her sedation could things proceed.

The doctor, using only his fingers, pulled a foot into view and then another. “OK,” he said, “now I have the sacrum.” Letting the resident take over, the doctor instructed: “Pull down. Down! Not Up! Down! All right, now the shoulder, then twist. Then the other shoulder.”

At this point, only a few minutes had passed. The fetus was perfectly limp, its tiny feet and hands flaccid as they immediately darkened from oxygen depletion. In the three intact D&X procedures I witnessed, not once did I see even a glimmer of response from the fetuses — the anesthesia having passed through the placenta into their bloodstreams.

Once the entire fetal body was out of the womb, the doctor quickly made an incision into the base of the skull that remained lodged against the woman’s cervix and inserted a suction catheter into the perforation to drain the brain matter and allow the full removal of the fetus. The placenta came next and the doctors finished suctioning the uterus to drain any remaining blood.

The final two procedures I monitored were standard D&E abortions. These procedures are not outlawed by the proposed federal ban on “partial birth” abortions or any of the 31 bans passed by individual states. However, the Supreme Court found that the wording of the Nebraska ban was so broad that it included the D&E procedure. Wrote Justice Stephen G. Breyer, author of the court’s majority opinion in the ruling: “prosecutors … may choose to pursue physicians who use D&E procedures … ”

Both D&E procedures I observed started in exactly the same manner as the three abortions earlier in the day, but the doctor in these cases quickly determined that intact extraction would not be possible because neither woman’s cervix was dilated enough. Once that decision was made, the resident inserted a long-handled metal instrument into the woman’s uterus — called a Bierer forcep — and began what the doctor called “blind” pulling. I watched as the doctor instructed the resident to “Stop and feel where you are! Put your hand on the abdomen. No, you’re not getting it! Watch out! Don’t get the cervix.”

Time after time, the resident plunged the Bierer into the woman’s womb, removing a leg, then an arm, then the liver, then the placenta, which the doctor ranted about, because this can make the fetal head extraction more difficult. The last step that I saw was the collapse of the skull and the removal of the brain matter.

Overall the piecemeal procedure seemed less dignified and somehow more harsh than the intact version, and the number of times the forceps entered the woman’s womb was indeed much higher. The whole procedure took about 15 minutes longer than the intact D&X procedure, but the duration varies from woman to woman.

During the procedures, I had focused on and intently looked for specific differences between the two techniques, monitoring such things as variations in pain, tearing of the tissue below the vagina, and blood loss. (Only the first woman seemed to experience pain; a small peritoneal tear occurred during one standard D&E procedure; and less bleeding occurred with the intact procedures.)

I also watched for any signs of fetal distress, but even as one foot was pulled off, I could see no response, no reflexive spasm, nothing. Whether this was a result of the anesthesia or an undeveloped fetal system for pain sensitivity, one thing was clear: There was no discernable response by the fetus. And in the operating room there was no emotional one from me.

But as I left the operating room, and changed from surgical garb into my street clothes, I allowed myself a moment of reflection. I have always had a sort of Einsteinian view on abortion: God does not play dice with the souls of this universe. Maybe that reason, coupled with the simple fact that my trip to the OR was motivated only by a desire to understand and demystify the science behind this politically mired surgical procedure, I felt the relief of finally knowing, combined with the burden of knowledge. Seeing a potential human collapsed and torn in a dish was disturbing; watching a very human woman, knowing she would be the one to carry the wounds, hurt too.

Back in his office, the doctor demonstrated how powerful a grip can be used with the Bierer forceps. He clamped them down on a surgical scrub gown I held in my hands. “Pull,” he instructed. I pulled. “Really, really pull!” he yelled. I really, really pulled. The only way to break the bond between forceps and cloth was to tear the cloth; I inwardly winced as I realized that in the operating room the cloth could be a uterine wall, and with one misplaced pull by the forceps, a perforation could occur.

“This is why I hate overuse of forceps,” the doctor commented. “Things tear.” Rubbing a hand across his forehead, the doctor looked straight at me: “There are only two kinds of doctors who have never perforated a uterus,” he added, “those that lie and those who don’t do abortions.”

Dr. Ann Davis, an OB/GYN at Columbia University’s College of Physicians and Surgeons, says there are no formal studies demonstrating that an intact D&X is the safest method of performing an abortion in the second trimester because so few doctors now perform the procedure. The size of such a study would be too great, she says, and the procedure is only performed an estimated 650 times per year.

“Both procedures are very safe, so you would need 10,000 women in each arm of the study to get even minimal differences in outcomes,” she said. Davis, who has been active in Medical Students for Choice, a group dedicated to ensuring abortion training in medical schools and residency programs across the country, says those trained to perform the intact procedure believe that it is safer but they have no way to prove it.

Dr. Curtis Cook, in a press release for the Physicians Ad-hoc Coalition for Truth (PHACT), a group known for its antiabortion stance, says that the intact D&X “has now been demonstrated as a potentially dangerous procedure.” But risks outlined by PHACT are dangers inherent to any second trimester abortion, regardless of the procedure. Dr. Cook, who specializes in maternal and fetal medicine, conceded in a telephone interview that he had never performed or observed an intact D&X procedure. He says he does not perform abortions except in the rare case when a fetus has died inside a mother’s uterus, and he believes that the best procedure for abortions done after 20 weeks is induction of labor.

Induction requires at least 6 centimeters of cervical dilation and an average of 12 hours of labor. Though it can be a long and grueling process, taxing physically as well as emotionally, induction, like the intact D&X, results in a whole fetus, which is thought to be helpful to create a sense of closure for the woman. In fact, many women who have undergone an intact dilation and extraction, to terminate a pregnancy marred by severe birth defects, point to the psychological benefit of an intact fetus to hold, grieve over and finally bury as a reason the procedure should remain legal.

“For me, this [intact dilation and extraction] was the most humane procedure,” says Claudia Ades Crown, who at six months into her first pregnancy at age 33 was devastated to learn her fetus was severely deformed by a chromosomal abnormality called trisomy 13. “There is a grieving process that I believe is helped with the ability to hold your child and then see him buried.” Crown added that an intact fetus allows for a more thorough autopsy, which can be important for planning future pregnancies.

Dr. David Grimes, past chief of abortion surveillance for the CDC, characterized the induction method as “maxi labor followed by a mini delivery,” adding that the procedure often is the method of choice for doctors not skilled in the D&E or D&X procedure.

One concern raised by Cook of PHACT does stand out: The issue of cervical incompetence, a condition in which a pregnant woman’s cervix prematurely dilates for unknown reasons, often leading to a spontaneous abortion. A study in the Journal of Reproductive Medicine found that in most instances, cervical incompetence is the result of prior trauma to the region. Cook maintains that the amount of dilation needed to do an intact D&X — somewhat greater than what is needed for D&E procedures done at the same stage of pregnancy — will cause this kind of trauma and predispose women to risk in future pregnancies. (Cervical incompetence can also result from trauma sustained during an induction abortion, which also requires greater dilation than a D&E procedure.)

An Israeli study of standard D&E procedures performed late (18 to 22 weeks) in the second trimester of pregnancy found no increased risk of cervical trauma or cervical incompetence in future pregnancies. However, this study did not involve any intact D&X abortions. While the majority of studies show first trimester abortion to be a very safe procedure, the jury is still out on how second trimester abortions of any kind can affect future pregnancies.

“The rule of thumb with cervical dilation is slow and easy, and we are getting better and better at this,” says Dr. Eric Schaff, professor of medicine and OB/GYN at the University of Rochester School of Medicine in New York. “But more studies are absolutely needed,” he says, referring to the need for comparative studies between intact D&X and standard D&E procedures to examine any differences in cervical trauma that may occur.

Grimes adds that the whole issue of whether to ban intact dilation and extraction abortion is about politics, not public health. And until the procedure is less marginalized, he says, there will be very few subjects for a comprehensive study.

Meanwhile, Dr. Nancy Romer from Dayton, Ohio, another PHACT physician, says that she would be quite pleased to see Roe vs. Wade overturned. A practicing OB/GYN for 15 years, Dr. Romer has written and voiced her dissent on the issue of the intact abortion procedure, and does not perform abortions in her practice. She does believe, however, that the intact D&X as described by Dr. Warren Hern of Colorado is an acceptable procedure for late-term abortions.

Dr. Hern’s procedure involves the injection of digoxin into the fetal heart through the uterine wall to kill the fetus inside the uterus. However, because the injection takes place the day before the procedure, it often requires an additional visit to the hospital or clinic by the woman, and may subject her to increased risk of bowel perforation, according to abortion providers. (Because of the additional risk and burden to the woman, this procedure is theoretical for the most part.)

Dr. Romer also rejects the interpretation that Roe vs. Wade, in giving primacy to a woman’s mental health, protects the right to late-term abortion when a fetus is found to have no chance of survival once it is born. “Even when carrying a severely malformed fetus, there is no advantage to using partial-birth abortion,” Romer wrote in Nexus, a law school journal of opinion. “The medical fact is that a handicapped fetus, even one with anomalies incompatible with life after birth, is not a threat to a woman’s life or health.”

In an interview, Romer added that there are very real psychological benefits to delaying delivery of fetuses that will not survive, such as time to prepare for the loss.

Maureen Britell, director of the patient project for the National Abortion Federation, calls this opinion ludicrous. When she was about 26 weeks pregnant, Britell says that she was told by her doctor that her baby had no brain. The condition of her fetus, anencephaly, meant that her baby would die moments after birth.

“Prepare?” says Britell. “That would consist of months of people walking up to me and saying things like, ‘How nice, you’re pregnant. When is the due date?’ and me having to respond time and time again, ‘Well, that would be one day before the funeral.’”

In its essence, the argument about which surgical procedures should be allowed to end second trimester pregnancies is still one of choice. But it is, above all, about a doctor’s right to choose. Without the option to perform a procedure that he or she deems medically safe for the patient, a doctor runs the risk of breaking a basic commitment to provide the best care available to his or her patient. In performing an abortion, the doctor has as a patient not a fetus but a woman, and it is to her that the oath “First, do no harm” applies.

Margaret Woodbury is a freelance writer.

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