Abortion, Health, and the Law
http://www.100md.com
《新英格兰医药杂志》
. . . with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else.
— John Stuart Mill, On Liberty, 1859
The signing into law of the Partial-Birth Abortion Ban Act of 2003 by President George W. Bush has brought to the surface, yet again, the bitterly divisive subject of abortion. Is this bill, as it states, simply an act intended to ban "a gruesome and inhumane procedure that is never medically necessary"?1 Or is it a carefully calculated first step in a plan to ultimately eliminate virtually all legal abortions, either by outright ban or by intimidation of abortion services providers? Although the 1973 Supreme Court decision in Roe v. Wade currently protects the privacy and availability of abortion procedures at less than 24 weeks of gestation, there is no clear protection in the Constitution for a woman's "right" to obtain an abortion. The Supreme Court has periodically revisited the issues involved in Roe v. Wade, and that decision may not stand indefinitely. Even people in our society who support a woman's right to sovereignty over her own body, in the abstract and at early gestational ages, may become uneasy with the subject of abortion when forced to consider the details of the procedures involved and the clash between maternal rights and the claim of a "right to life" for a fetus of advancing gestational age.
Although there is a provision in the bill to exempt procedures "necessary to save the life of a mother," there is no exemption for her health. How should physicians interpret this standard?
Consider the case of a young married woman with mild but increasing dyspnea on exertion who stopped cigarette smoking and became pregnant, with the desire to start a family. Her obstetrician notes her hematocrit to be 52 percent. Her subsequent evaluation demonstrates a large atrial septal defect, right ventricular hypertrophy, and suprasystemic pulmonary hypertension. Her Eisenmenger's syndrome gives her a 50 percent probability of death if she attempts to carry the pregnancy to term.2 That risk is substantially decreased if she terminates the pregnancy. Would a procedure that averts a 50 percent risk of death be adequate to qualify as "necessary to save the life of the mother"? Just exactly how high does the risk need to be to meet that criterion; how good do the data in the literature documenting the risk of continuing the pregnancy and the benefit of terminating it need to be? Most important, who should make those decisions? The Partial-Birth Abortion Ban Act provides the opportunity for a defendant accused of violating the law to "seek a hearing before the State Medical Board on whether the physician's conduct was necessary to save the life of the mother." How many physicians will be willing to take prompt action when apparently necessary and trust that review bodies will uphold their decisions after the fact, with a potential two-year prison sentence hanging in the balance?
In an ideal world, all women with chronic medical conditions such as renal insufficiency would consult with their obstetrical care providers before becoming pregnant. Such consultation frequently does not occur, however, because many patients do not appreciate the potential for complications associated with pregnancy and because 50 percent of all pregnancies in the United States are unplanned. A woman with severe chronic renal failure has a 5 percent risk of losing her remaining renal function entirely if she attempts to carry a pregnancy to term.3 Should that be considered a risk only to her health and not ultimately to her life? Should a woman's preference to avoid, or at least delay, dialysis and renal transplantation be irrelevant to the decision to terminate or continue a pregnancy?
A diabetic woman with active proliferative retinopathy may risk blindness if a pregnancy is carried to term. If a woman conceives when her diabetes is stable and discovers that she has active proliferative retinopathy at the end of the first trimester, who should decide whether she continues her pregnancy?
Finally, consider the case of a woman who learns at 18 weeks of gestation that she has a fetus with holoprosencephaly and trisomy 13. The fetus she is carrying will never become a child able to smile or talk or go to school, but the woman is at risk for complications of carrying the pregnancy to term. The risk of maternal death due to a legal induced abortion in the United States is approximately 0.6 per 100,000,4 whereas the risk of death for a woman 35 to 39 years of age who attempts to carry a pregnancy to term is 21 per 100,0005 — 35 times as high. If a fetus with severe congenital anomalies has a "right" to be born, how should that right be weighed against its mother's right to minimize her risk of death by terminating a pregnancy that she knows will not produce a baby who is able to survive over the long term?
Less than 6 percent of the 1 million abortions done annually in the United States are done at more than 16 weeks' gestation.4 The vast majority of "late-term" procedures, at 21 and 24 weeks' gestation, are done by either dilation and evacuation ("D&E") or amnioinfusion. During a standard dilation and evacuation procedure, the contents of the uterus are removed through a combination of suction curettage and the use of destructive instruments. The fetus dies in utero, out of sight, and is fragmented during the process of removal from the uterus. Amnioinfusion is accomplished by infusing percutaneously into the amniotic cavity a hypertonic substance (saline or urea) with or without a potent oxytocic agent. The hypertonic solution causes the death of the fetus in utero, before its expulsion intact from the uterus. Both of these procedures are well described in the medical literature, they have been done for decades by large numbers of providers worldwide, and their results and complications have been well reported in the peer-reviewed literature.6 The risk of a serious maternal complication following a dilation and evacuation procedure at these gestational ages is about 0.5 percent, and that risk with an infusion procedure is about 1 percent.
The procedure described in the Partial-Birth Abortion Ban Act of 2003, termed by its users "intact dilation and extraction" or "intact D&E" to distinguish it from the standard dilation and evacuation procedure, is generally used at later gestational ages — 20 to 24 weeks' gestation. As described in a recent text,7 after adequate cervical dilation, the fetal feet are grasped and the fetus is delivered to the shoulders with the calvaria at the internal cervical os. A suction catheter is then introduced into the calvaria and "the central nervous system is aspirated" collapsing the calvaria and permitting the fetus to be delivered "intact." The fetus dies after being partially delivered. This procedure was first described only recently, in 1992.8 Although no one seems to know exactly how many of these procedures are done annually in the United States, one estimate is that only 0.17 percent of the 1 million abortions done in 2000 employed this technique.9 The relatively small numbers of practitioners who perform the procedures are reluctant to discuss their work, and the Centers for Disease Control and Prevention does not collect data on this specific procedure. Computerized medical literature searches and discussions with providers confirm that there are no descriptions in the peer-reviewed literature of case series or randomized trials of this procedure by which to judge its safety.
Because the actual number of "partial-birth abortion" procedures done in the United States is small, and the alternative procedures are more readily available, the effect of the bill on the total number of abortions done and on access to abortion services should be minimal. An immediate concern for everyone who performs the standard dilation and evacuation procedure, however, is the possibility that the wording of the current bill is sufficiently imprecise that the procedures they are now doing could be construed to meet the criteria of the banned procedure. At least one academic medical center–teaching hospital has stopped doing all second-trimester procedures because of just this concern. There is sufficient suspicion and distrust among abortion providers that some may believe that a purpose of the bill is to intimidate them in just this way.10 The bill, however, specifically states that the provider must perform an "overt act that the person knows will kill the partially delivered living fetus. . . ." These concerns could be obviated by performing a procedure (such as fetal injection of potassium chloride or digoxin) that will reliably cause the death of the fetus in utero before the start of the dilation and evacuation. This option would add another layer of complexity, discomfort, and anxiety for the patient to an already distressing procedure.
Of greater concern are the precedents established by passage of this act. In it a specific medical procedure for accomplishing abortion has been banned because it is "gruesome and inhumane." Why is the standard dilation and evacuation procedure any less gruesome and inhumane, and might it not be proscribed in the next bill passed by Congress? There is considerable concern that if the government can ban this particular procedure, then it could ban other, much more widely employed, procedures used to terminate pregnancies and seriously restrict access to safe and affordable procedures.
Between the bleak scenarios described above and that of a healthy woman with a healthy and desired pregnancy is an infinite spectrum of shades of gray. Other than the probability of the actual risk of maternal death, should any other criteria be relevant to the decision? For instance, how many other children would be left motherless by her death? Should one consider whether the father is able to care and provide for other children? What burden of physical disability, psychological distress, or financial hardship should a mother or family be required to bear? Who should make these choices — the mother with her husband and physician, a court, a legislature, a governor, or the President? Who knows the woman's "feelings and circumstances" better than she does?
The rhetoric and distrust on both sides of the abortion debate have so polarized the partisans that neither side can acknowledge any truth on the other side. The "pro-choice" side resolutely resists any attempts of the "pro-life" side to confer "personhood" on an unborn fetus at virtually any gestational age. The obvious fear is that this would confer a "right to life" on a fetus that could then be used to protect it from the will of its mother to terminate the pregnancy. (Yet often, and ironically, incredible efforts are expended to provide highly sophisticated diagnostic and therapeutic procedures for such "nonpersons.") Legal scholars suggest that, even if a fetus were to be granted "personhood," a mother would retain the right to terminate a pregnancy that seriously threatened her life or health, by invoking her right to "self-defense." For its part, the "pro-life" side refuses to acknowledge the truth that banning legal abortions does not mean that abortions would cease to be performed, and all pregnancies would end successfully with healthy and desired children. Banning legal abortions would force desperate women to seek illegal abortions, to submit to dangerous, "gruesome and inhumane" procedures, often at great expense and resulting in the deaths of dozens of women each year. Furthermore, this burden would be borne disproportionately by those women in our society with the least financial means.
Ultimately, our courts will determine the constitutionality and fate of the Partial-Birth Abortion Ban Act of 2003.11 If it is interpreted as written, and as its authors say they intend, this bill should have little impact overall on the provision of abortion services in this country. We should all be mindful, however, of the broader implications for women's health and reproductive rights if this ban is extended to other safe and effective procedures used for the termination of pregnancy.
Source Information
From Massachusetts General Hospital, Boston.
References
Partial-Birth Abortion Act of 2003, S.3-8, 108th Congress, 1st Session (2003).
Gleicher N, Midwall J, Hochberger D, Jaffin H. Eisenmenger's syndrome and pregnancy. Obstet Gynecol Surv 1979;34:721-741.
Davison JM, Lindheimer MD. Renal disorders. In: Creasy RK, Resnik R, eds. Maternal fetal medicine. 4th ed. Philadelphia: W.B. Saunders, 1999:873-94.
Elam-Evans LD, Strauss LT, Herndon J, et al. Abortion surveillance -- United States, 1999. MMWR Surveill Summ 2002;51:1-9, 11.
Callaghan WM, Berg CJ. Pregnancy-related mortality among women aged 35 years and older, United States, 1991-1997. Obstet Gynecol 2003;102:1015-1021.
Kafrissen ME, Schulz KF, Grimes DA, Cates W Jr. Midtrimester abortion: intra-amniotic instillation of hyperosmolar urea and prostaglandin F2 alpha v dilatation and evacuation. JAMA 1984;251:916-919.
Stubblefield PG. First and second trimester abortion. In: Nichols DH, Clarke-Pearson DL, eds. Gynecologic, obstetric, and related surgery. 2nd ed. St. Louis: Mosby, 2000:1033-48.
Haskell M. Dilation and extraction for late second trimester abortion. Presented at the National Abortion Federation Risk Management Seminar, Dallas, September 13–14, 1992, 27-34.
Finer LB, Henshaw SK. Abortion incidence and services in the United States in 2000. Perspect Sex Reprod Health 2003;35:6-15.
Stockman F, Mishra R. Elation, fear over vote to ban form of abortion. Boston Globe. October 23, 2003:B3.
Annas GJ. "Partial-birth abortion" and the Supreme Court. N Engl J Med 2001;344:152-156.
Related Letters:
Abortion, Health, and the Law
Reardon D. C., Hoeldtke N. J., Marchetti P., Greene M. F., Ecker J. L.(Michael F. Greene, M.D., )
— John Stuart Mill, On Liberty, 1859
The signing into law of the Partial-Birth Abortion Ban Act of 2003 by President George W. Bush has brought to the surface, yet again, the bitterly divisive subject of abortion. Is this bill, as it states, simply an act intended to ban "a gruesome and inhumane procedure that is never medically necessary"?1 Or is it a carefully calculated first step in a plan to ultimately eliminate virtually all legal abortions, either by outright ban or by intimidation of abortion services providers? Although the 1973 Supreme Court decision in Roe v. Wade currently protects the privacy and availability of abortion procedures at less than 24 weeks of gestation, there is no clear protection in the Constitution for a woman's "right" to obtain an abortion. The Supreme Court has periodically revisited the issues involved in Roe v. Wade, and that decision may not stand indefinitely. Even people in our society who support a woman's right to sovereignty over her own body, in the abstract and at early gestational ages, may become uneasy with the subject of abortion when forced to consider the details of the procedures involved and the clash between maternal rights and the claim of a "right to life" for a fetus of advancing gestational age.
Although there is a provision in the bill to exempt procedures "necessary to save the life of a mother," there is no exemption for her health. How should physicians interpret this standard?
Consider the case of a young married woman with mild but increasing dyspnea on exertion who stopped cigarette smoking and became pregnant, with the desire to start a family. Her obstetrician notes her hematocrit to be 52 percent. Her subsequent evaluation demonstrates a large atrial septal defect, right ventricular hypertrophy, and suprasystemic pulmonary hypertension. Her Eisenmenger's syndrome gives her a 50 percent probability of death if she attempts to carry the pregnancy to term.2 That risk is substantially decreased if she terminates the pregnancy. Would a procedure that averts a 50 percent risk of death be adequate to qualify as "necessary to save the life of the mother"? Just exactly how high does the risk need to be to meet that criterion; how good do the data in the literature documenting the risk of continuing the pregnancy and the benefit of terminating it need to be? Most important, who should make those decisions? The Partial-Birth Abortion Ban Act provides the opportunity for a defendant accused of violating the law to "seek a hearing before the State Medical Board on whether the physician's conduct was necessary to save the life of the mother." How many physicians will be willing to take prompt action when apparently necessary and trust that review bodies will uphold their decisions after the fact, with a potential two-year prison sentence hanging in the balance?
In an ideal world, all women with chronic medical conditions such as renal insufficiency would consult with their obstetrical care providers before becoming pregnant. Such consultation frequently does not occur, however, because many patients do not appreciate the potential for complications associated with pregnancy and because 50 percent of all pregnancies in the United States are unplanned. A woman with severe chronic renal failure has a 5 percent risk of losing her remaining renal function entirely if she attempts to carry a pregnancy to term.3 Should that be considered a risk only to her health and not ultimately to her life? Should a woman's preference to avoid, or at least delay, dialysis and renal transplantation be irrelevant to the decision to terminate or continue a pregnancy?
A diabetic woman with active proliferative retinopathy may risk blindness if a pregnancy is carried to term. If a woman conceives when her diabetes is stable and discovers that she has active proliferative retinopathy at the end of the first trimester, who should decide whether she continues her pregnancy?
Finally, consider the case of a woman who learns at 18 weeks of gestation that she has a fetus with holoprosencephaly and trisomy 13. The fetus she is carrying will never become a child able to smile or talk or go to school, but the woman is at risk for complications of carrying the pregnancy to term. The risk of maternal death due to a legal induced abortion in the United States is approximately 0.6 per 100,000,4 whereas the risk of death for a woman 35 to 39 years of age who attempts to carry a pregnancy to term is 21 per 100,0005 — 35 times as high. If a fetus with severe congenital anomalies has a "right" to be born, how should that right be weighed against its mother's right to minimize her risk of death by terminating a pregnancy that she knows will not produce a baby who is able to survive over the long term?
Less than 6 percent of the 1 million abortions done annually in the United States are done at more than 16 weeks' gestation.4 The vast majority of "late-term" procedures, at 21 and 24 weeks' gestation, are done by either dilation and evacuation ("D&E") or amnioinfusion. During a standard dilation and evacuation procedure, the contents of the uterus are removed through a combination of suction curettage and the use of destructive instruments. The fetus dies in utero, out of sight, and is fragmented during the process of removal from the uterus. Amnioinfusion is accomplished by infusing percutaneously into the amniotic cavity a hypertonic substance (saline or urea) with or without a potent oxytocic agent. The hypertonic solution causes the death of the fetus in utero, before its expulsion intact from the uterus. Both of these procedures are well described in the medical literature, they have been done for decades by large numbers of providers worldwide, and their results and complications have been well reported in the peer-reviewed literature.6 The risk of a serious maternal complication following a dilation and evacuation procedure at these gestational ages is about 0.5 percent, and that risk with an infusion procedure is about 1 percent.
The procedure described in the Partial-Birth Abortion Ban Act of 2003, termed by its users "intact dilation and extraction" or "intact D&E" to distinguish it from the standard dilation and evacuation procedure, is generally used at later gestational ages — 20 to 24 weeks' gestation. As described in a recent text,7 after adequate cervical dilation, the fetal feet are grasped and the fetus is delivered to the shoulders with the calvaria at the internal cervical os. A suction catheter is then introduced into the calvaria and "the central nervous system is aspirated" collapsing the calvaria and permitting the fetus to be delivered "intact." The fetus dies after being partially delivered. This procedure was first described only recently, in 1992.8 Although no one seems to know exactly how many of these procedures are done annually in the United States, one estimate is that only 0.17 percent of the 1 million abortions done in 2000 employed this technique.9 The relatively small numbers of practitioners who perform the procedures are reluctant to discuss their work, and the Centers for Disease Control and Prevention does not collect data on this specific procedure. Computerized medical literature searches and discussions with providers confirm that there are no descriptions in the peer-reviewed literature of case series or randomized trials of this procedure by which to judge its safety.
Because the actual number of "partial-birth abortion" procedures done in the United States is small, and the alternative procedures are more readily available, the effect of the bill on the total number of abortions done and on access to abortion services should be minimal. An immediate concern for everyone who performs the standard dilation and evacuation procedure, however, is the possibility that the wording of the current bill is sufficiently imprecise that the procedures they are now doing could be construed to meet the criteria of the banned procedure. At least one academic medical center–teaching hospital has stopped doing all second-trimester procedures because of just this concern. There is sufficient suspicion and distrust among abortion providers that some may believe that a purpose of the bill is to intimidate them in just this way.10 The bill, however, specifically states that the provider must perform an "overt act that the person knows will kill the partially delivered living fetus. . . ." These concerns could be obviated by performing a procedure (such as fetal injection of potassium chloride or digoxin) that will reliably cause the death of the fetus in utero before the start of the dilation and evacuation. This option would add another layer of complexity, discomfort, and anxiety for the patient to an already distressing procedure.
Of greater concern are the precedents established by passage of this act. In it a specific medical procedure for accomplishing abortion has been banned because it is "gruesome and inhumane." Why is the standard dilation and evacuation procedure any less gruesome and inhumane, and might it not be proscribed in the next bill passed by Congress? There is considerable concern that if the government can ban this particular procedure, then it could ban other, much more widely employed, procedures used to terminate pregnancies and seriously restrict access to safe and affordable procedures.
Between the bleak scenarios described above and that of a healthy woman with a healthy and desired pregnancy is an infinite spectrum of shades of gray. Other than the probability of the actual risk of maternal death, should any other criteria be relevant to the decision? For instance, how many other children would be left motherless by her death? Should one consider whether the father is able to care and provide for other children? What burden of physical disability, psychological distress, or financial hardship should a mother or family be required to bear? Who should make these choices — the mother with her husband and physician, a court, a legislature, a governor, or the President? Who knows the woman's "feelings and circumstances" better than she does?
The rhetoric and distrust on both sides of the abortion debate have so polarized the partisans that neither side can acknowledge any truth on the other side. The "pro-choice" side resolutely resists any attempts of the "pro-life" side to confer "personhood" on an unborn fetus at virtually any gestational age. The obvious fear is that this would confer a "right to life" on a fetus that could then be used to protect it from the will of its mother to terminate the pregnancy. (Yet often, and ironically, incredible efforts are expended to provide highly sophisticated diagnostic and therapeutic procedures for such "nonpersons.") Legal scholars suggest that, even if a fetus were to be granted "personhood," a mother would retain the right to terminate a pregnancy that seriously threatened her life or health, by invoking her right to "self-defense." For its part, the "pro-life" side refuses to acknowledge the truth that banning legal abortions does not mean that abortions would cease to be performed, and all pregnancies would end successfully with healthy and desired children. Banning legal abortions would force desperate women to seek illegal abortions, to submit to dangerous, "gruesome and inhumane" procedures, often at great expense and resulting in the deaths of dozens of women each year. Furthermore, this burden would be borne disproportionately by those women in our society with the least financial means.
Ultimately, our courts will determine the constitutionality and fate of the Partial-Birth Abortion Ban Act of 2003.11 If it is interpreted as written, and as its authors say they intend, this bill should have little impact overall on the provision of abortion services in this country. We should all be mindful, however, of the broader implications for women's health and reproductive rights if this ban is extended to other safe and effective procedures used for the termination of pregnancy.
Source Information
From Massachusetts General Hospital, Boston.
References
Partial-Birth Abortion Act of 2003, S.3-8, 108th Congress, 1st Session (2003).
Gleicher N, Midwall J, Hochberger D, Jaffin H. Eisenmenger's syndrome and pregnancy. Obstet Gynecol Surv 1979;34:721-741.
Davison JM, Lindheimer MD. Renal disorders. In: Creasy RK, Resnik R, eds. Maternal fetal medicine. 4th ed. Philadelphia: W.B. Saunders, 1999:873-94.
Elam-Evans LD, Strauss LT, Herndon J, et al. Abortion surveillance -- United States, 1999. MMWR Surveill Summ 2002;51:1-9, 11.
Callaghan WM, Berg CJ. Pregnancy-related mortality among women aged 35 years and older, United States, 1991-1997. Obstet Gynecol 2003;102:1015-1021.
Kafrissen ME, Schulz KF, Grimes DA, Cates W Jr. Midtrimester abortion: intra-amniotic instillation of hyperosmolar urea and prostaglandin F2 alpha v dilatation and evacuation. JAMA 1984;251:916-919.
Stubblefield PG. First and second trimester abortion. In: Nichols DH, Clarke-Pearson DL, eds. Gynecologic, obstetric, and related surgery. 2nd ed. St. Louis: Mosby, 2000:1033-48.
Haskell M. Dilation and extraction for late second trimester abortion. Presented at the National Abortion Federation Risk Management Seminar, Dallas, September 13–14, 1992, 27-34.
Finer LB, Henshaw SK. Abortion incidence and services in the United States in 2000. Perspect Sex Reprod Health 2003;35:6-15.
Stockman F, Mishra R. Elation, fear over vote to ban form of abortion. Boston Globe. October 23, 2003:B3.
Annas GJ. "Partial-birth abortion" and the Supreme Court. N Engl J Med 2001;344:152-156.
Related Letters:
Abortion, Health, and the Law
Reardon D. C., Hoeldtke N. J., Marchetti P., Greene M. F., Ecker J. L.(Michael F. Greene, M.D., )