Partial-birth abortion

“ No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. ”

“ Rather than being an abortion procedure that is embraced by the medical community, particularly among physicians who routinely perform other abortion procedures, partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives. As a result, at least 27 States banned the procedure as did the United States Congress which voted to ban the procedure during the 104th, 105th, and 106th Congresses. ”

“ There is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures. No controlled studies of partial-birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy compared to other abortion methods. Furthermore, there have been no articles published in peer-reviewed journals that establish that partial-birth abortions are superior in any way to established abortion procedures. ”

“ In a hysterotomy, as in a cesarean section, the doctor removes the fetus by making an incision through the abdomen and uterine wall to gain access to the uterine cavity. A hysterectomy requires the removal of the entire uterus. These two procedures represent about 0.07 percent of second-trimester abortions. National Abortion Federation, 330 F. Supp. 2d, at 467; Planned Parenthood, supra, at 962–963.
B After Dr. Haskell's procedure received public attention, with ensuing and increasing public concern, bans on "'partial birth abortion'" proliferated. ”

“ We begin with the common law, under which abortion was a crime at least after "quickening"—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy. ”

“ Abortion is, in many cases, accompanied by the most serious results. The operation is dangerous; death not infrequently occurs; often the result is a permanent impairment of health. "The troubles of troublesome pregnancy and child-birth are infinitely less than the sufferings [Pg 111] consequent upon artificial abortion." ”

“ Any medical man who gives even the most harmless medicine where he suspects the possibility of pregnancy may render himself liable to grave suspicion should the woman abort. [43]
In medicine, an abortion is said to occur when the fœtus is expelled before the sixth month; after that it is premature birth. In law, however, any expulsion of the contents of the uterus before the full time is an abortion or miscarriage. ”

“ I In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus. From reading the majority's sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it. ”

“ Abortion affects another. While childbirth endangers the lives of some women, voluntary abortion at any time and place regardless of medical standards would impinge on a rightful concern of society. The woman's health is part of that concern; as is the life of the fetus after quickening. These concerns justify the State in treating the procedure as a medical one. ”

“ Therapeutic abortions are resorted to when the patient’s condition is so grave that it is apparently necessary to empty the uterus in order to save her life. Such a condition may exist, for example, when pregnancy is complicated by pulmonary tuberculosis, heart disease, toxemia, hemorrhage or some condition which is inherent to pregnancy. An abortion induced under these circumstances is countenanced by law, as it is performed to prevent the loss of life from disease; but an abortion is not legal if brought on to save the woman from suicide, because of her unwillingness to become a mother. ”

“ A complete abortion, as the term suggests, is one in which all the products of conception are expelled. The treatment and care are exactly the same as are given after a normal delivery. This point cannot be stressed too strongly, for it is because so many women fail to appreciate the necessity for adequate post-partum care, that abortions are so often followed by ill health and invalidism. ”

“ Plainly, if the pregnancy is to be terminated at a time when there is no chance of life outside the womb, a physician would not be required to exercise any care or skill to preserve the life of the fetus during abortion no matter what the mother's desires. The statute would appear then to operate only in the gray area after the fetus might be viable but while the physician is still able to certify "with reasonable medical certainty that the fetus is not viable." ”

“ A The Act's purposes are set forth in recitals preceding its operative provisions. A description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process. Congress stated as follows: "Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life." ”

“ If she is so unfortunate as to be unable to get anybody to produce an abortion, she gives birth to an illegitimate child, which she is forced in most cases to put away in an institution of some sort [29] where she hopes and prays it may die soon—and, in general, it does. ”

“ The dangers resulting from abortion are blood poison, hemorrhage—even lockjaw has been known to be 58the result of abortion, also the danger that one miscarriage is likely to follow another, and disables a woman to carry a child to the full term.
If there is the same care and treatment given the woman who aborts as the woman in childbirth, she will naturally be less likely to suffer serious results than if no medical attention were given her. ”

“ Abortion is a unique act, in which a woman's exercise of control over her own body ends, depending on one's view, human life or potential human life. Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. ”

“ It may be admitted that women have an abstract right to abortion and that in exceptional cases that right should be exerted. Yet there can be very little doubt to most people that abortion is a wasteful, injurious, and almost degrading method of dealing with the birth-rate, a feeble apology for recklessness and improvidence. A society in which abortion flourishes cannot be regarded as a healthy society. Therefore, a community which takes upon itself to encourage abortion is incurring a heavy responsibility. ”

“ Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. ”

“ Certain abnormalities of the developing fetus are inconsistent with life, and are, therefore, a frequent cause of abortion. Dr. Mall, of Johns Hopkins University, showed after years of investigation that at least one-third of the embryos obtained from abortions were malformed and would have developed into monstrosities had they lived to term. It is often a great comfort to the expectant mother who loses her baby early in pregnancy to realize that had she carried her baby to term it might have been a monster, and that, therefore, she has not lost a beautiful, normal child. ”

“ The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State's interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.
It is objected that the standard D&E is in some respects as brutal, if not more, than the intact D&E, so that the legislation accomplishes little. ”

“ After the first trimester, the compelling state interest in the mother's health permits it to adopt reasonable regulations in order to promote safe abortions -- but requiring abortions to be performed in hospitals, or only after approval of another doctor or committee in addition to the woman's physician, is impermissible, as is requiring that the abortion procedure employ a technique that, however preferable from a medical perspective, is not widely available. ”

“ It is needless to say that abortion should be permitted whenever pregnancy seriously endangers the life or health of the mother, or when a grave disease in the mother condemns the child to become an invalid. ”

“ The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother. ”

“ As a practical matter, because viability follows ‘quickening’-the point at which a woman feels movement in her womb-and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion while providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy. ”

“ First, the person performing the abortion must "vaginally delive [r] a living fetus." § 1531 (b) (1) (A) . The Act does not restrict an abortion procedure involving the delivery of an expired fetus. The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy) . The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. See, e. g., Planned Parenthood, 320 F. Supp. ”

“ It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good faith opinion that the abortion "is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman." ”

“ When the fetus dies within the womb of the mother, it is usually expelled spontaneously within a few days or even a few hours. Some women suffer from certain weakness which result in habitual miscarriage; such women seem unable to carry the child for the full natural term, and lose it at some time during the period of gestation. Like results often arise from certain diseases, principal among which is syphilis. In some cases the physician produces what is known as "therapeutic abortion," for the purpose of saving the life of the woman—this is sanctioned by medical custom and by law. ”

“ As to the legal aspect of the matter, the laws relating to therapeutic abortion vary in the different states. But they are fairly uniform in their intent, and make quite clear the difference between this procedure and the induction of abortion for any reason other than medical necessity.
Dr. Slemons writes of the seriousness of criminal abortion in no uncertain terms, in “The Prospective Mother.” “At Common Law” (an inheritance from England) he tells us, “abortion 172is punishable as homicide when the woman dies or when the operation results fatally to the infant, after it has been born alive. ”

“ But the insufficiency of the State's interest in maternal health is predicated upon the first trimester abortion's being as safe for the woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman. ”

“ Many Roman Catholics believe that the soul is a gift of God given at conception. This leads to the conclusion that aborting a pregnancy at any time amounts to the taking of a human life and is therefore against the will of God. Others, including some Catholics, believe that abortion should be legal until the baby is viable, i.e., able to support itself outside the womb. ”

“ An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. ”