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Is It Constitutional to Ban Partial-Birth Abortions Without Providing for an Exception to Protect
the Health of the Mother?
Types of Late-term Abortions
Two major types or methods of late-term abortion are dilation and extraction (D & E) and
induction abortion. There are two variants of D & E. In the first variant, the baby is dismembered
inside the uterus before being removed. In the second variant, known as intact dilation and
extraction (IDE), with the baby still alive, all of its body except the head is pulled out using a
forceps. The head is then pierced and the brain sucked out using a high-pressure machine. The
skull collapses and the head then passes through the cervix and the vagina with more ease. The
term “partial-birth abortion” derives its name from the IDE process and is a political one used in
the abortion discourse; the American Medical Association does not recognize it as a medical
term. Induction abortion, also called the “MOLD Technique” uses digoxin injection to first kill
the baby inside the uterus before it is extracted in a 3-4 day procedure. The primary reason for
first killing the fetus during an induction abortion is to avoid a live birth and its associated legal
problems. The now deceased late-term abortionist George Tiller of Wichita, Kansas, pioneered
the method. Induction abortion has replaced the live partial-birth abortion technique since the
U.S. Supreme Court upheld PBABA in April 2007.
Historical Overview of Partial-birth Laws and Cases
Ohio was the first state to enact a law that banned partial-birth abortion, referring to the
procedure as dilation and extraction. In 1997, the Court of Appeal for the 6th Circuit declared the
law unconstitutional on the basis that it was a substantial obstacle in the path of women seeking
mid-term abortions. By 2000, 28 more states had passed laws banning partial-birth abortions. All
were consistent with the proposed federal bans and lacked clauses allowing the procedure in
cases where the woman’s health was at risk.
In April 2000, the Supreme Court heard oral presentations in the Sternberg vs. Carhart
case whose decision was handed down in June of the same year. The case centered on the
constitutionality of a Nebraska statute that proposed to ban partial-birth abortions without the
requisite exception for the health of the mother (Priests for Life). The Court declared the
Nebraska statute unconstitutional and said the procedure should remain legal. Moreover, the
Court deemed the language of the statute too broad and vague, potentially outlawing a range of
abortion procedures, thereby imposing an undue burden on women seeking abortions. The Court
added that any proposed ban must allow an exception for the mother’s health.
On 5 November 2003, President George W. Bush assented to the Partial-Birth Abortion
Ban Act (PBABA), 2003. Abortion proponents, not having had the public support to defeat the
bill before it became law, challenged the Act in court. Consequently, Federal Courts in the 2nd,
8th and 9th Circuits declared the Act unconstitutional. Following these developments, the
Supreme Court reviewed the decisions of the said Federal Courts and heard oral arguments on 8
November 2006. On 18 April 2007, the Supreme Court announced its decision to uphold the
partial-birth abortion ban (U.S. Supreme Court ).
YES: It is Constitutional
I.
Opponents of partial-birth abortion justify the constitutionality of banning the procedure without
providing for an exception for the protection of the mother's health on several grounds. First,
there is no consensus among the medical community on the necessity of the procedure. This was
the conclusion of the Gonzales v. Carhart et al.case (U.S. Supreme Court 2). Some 80% of all
partial-birth abortions are said to be “purely elective” (Nrlc.org). Elective does not mean that the
women who opt for the procedure do so out of medical necessity. Rather, they opt for the method
because they perceive it to be faster and more convenient. In fact, there have not been any known
obstetrical situations in the country that would necessitate a partly delivered fetus to be destroyed
to save its mother. Moreover, the opponents argue that most of the genuine, medically-necessary
abortions occur early in the pregnancy, not in the second and third trimesters
(Guttmatcher).They, therefore, cast doubt on the necessity of partial-birth abortions, given that
most occur in the last two trimesters of pregnancy.
II.
Opponents of partial-birth abortion argue that the process is a gruesome and barbaric and
one that deprives fetuses of their constitutional right to human dignity. This was the conclusion
of Judge Richard C. Casey when he delivered the decision on the National Abortion Federation
v. Ashcroft (Southern District Court of New York). The Judge’s conclusion was informed by
expert testimony delivered by government witnesses to the effect that the partial-birth procedure
exposes subjects the fetus to severe pain, a sentiment echoed by the wider scientific community.
It is along these lines that opponents of the procedure question why mothers who procure IDE
and their abortionists should clamor for the special health considerations when they subject
fetuses, who are no less human than themselves, to such extreme pain. Indeed, Judge Casey’s
assertion provided a significant impetus for the Unborn Child Pain Awareness Bill, introduced
by Sen. Sam Brownback and Rep. Chris Smith in 2010. The Bill sought to see to it that women
who procured abortions were made fully aware of the pain they inflicted on their unborn babies.
However, the Bill died before it could be enacted into law (GovTrack).
III.
Opponents of partial-birth abortion argue that the state has a legitimate interest and a
constitutional duty to protect all Americans, including the unborn (U.S. Supreme Court 10). The
state also has a duty to express profound respect for the life of the unborn. Opponents argue that
the role of the state in protecting the life of the unborn is particularly important in relation to the
IDE process which corrupts the delivery process by turning it into an opportunity to kill, thereby
contradicting the role of the physician in the birth process. Indeed, it is easy to understand the
opponents’ allegation by examining the process of partial-birth abortion. With the help of
ultrasound, the physician turns the fetus into the appropriate position, if necessary, then, using
forceps, grabs either or both of the fetus’ legs and pulls it into the birth canal. The abortionist
