Doctors wary of partial-birth abortion law

At a routine ultrasound five months into the pregnancy six years ago, the McClains learned the baby girl had a fatal and irreparable problem. The heart, liver, intestines and spleen were floating deformed outside the abdomen, which had not closed properly.

"She was fine in the womb, but she wouldn't have survived vaginal birth and wouldn't have lived," Sue said. "I would have carried a baby I knew was going to die. That would have been torture."

Sue and her husband, Brian, instead opted to terminate the pregnancy, using the most common second-trimester abortion procedure, known as a dilation and evacuation, or D&E.

The new Partial-Birth Abortion Ban Act of 2003, approved by Congress earlier in the month, is aimed at the less-common "partial-birth" abortion, medically known as an "intact D&E" or a "dilatation and extraction," or D&X, in which some of the procedure is performed inside the birth canal. But doctors who perform abortions say the bill's broad language covers all D&E procedures -- and could block virtually all abortions after the 12th week of pregnancy.

"If the ban goes through and truly eliminates this as a choice, women who find out that something is terribly wrong with their babies will have to remain pregnant," said Dr. Stephen Carr, a maternal fetal medicine specialist with a high-risk obstetrics practice at Women and Infants Hospital in Providence. "It's a different kind of heartache. Instead of the heartache of terminating, it is the heartache of delivering and watching what happens then."

Even in its broadest interpretation, the debate covers only about one-10th of all abortions in the United States. In 1998, 88 percent of abortions took place before the 12th week of pregnancy and just 1 percent occurred after week 21, according to the Alan Guttmacher Institute in New York, which studies reproductive issues. There is no precise count on the number of D&E's, but in a 2000 survey of all known abortion providers, the Guttmacher found that the much rarer D&X was used in less than one in every 500 abortions.

The bill graphically defines the "partial-birth" abortion procedure as the deliberate and intentional vaginal delivery of a living fetus, which is killed partway through when the head or trunk to the navel is outside the mother's body "usually [by] puncturing the back of the child's skull," collapsing the skull and then completing delivery of the dead infant.

The method is seen by many in the general public -- particularly those opposed to all abortions -- as so morally repugnant that there can be no justification for performing it. And the battle over partial-birth abortions is seen as a political testing ground for placing other restrictions on abortion.

The bill, which imposes a maximum two-year jail sentence on the doctor and allows for further legal prosecution, describes the D&X procedure as risky and medically unjustified -- claims most doctors dispute. A D&X, according to the American College of Obstetricians and Gynecologists, "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances, can make this decision."

The two procedures differ only in where they take place -- inside the woman's uterus, or in the birth canal. Because the bill does not make that distinction, all dilation-and-extraction procedures are likely to fall under its restrictions.

In all abortions, "you certainly know that you will start with a living fetus and that it will be dead by the end of the procedure," said Nebraska surgeon LeRoy Carhart, who opposes the bill. "But when you start a second-trimester abortion, you don't know when the fetus will die. Every patient is different. If any part comes out before it dies, bang, I'm in jail. This law will ban all D&Es. It will change the number of safe places to have an abortion. This could close every abortion clinic in the US."

Carhart was the lead plaintiff in a Supreme Court case striking down a similar state ban three years ago. The court called Nebraska's partial birth abortion ban unconstitutional because it lacked an exception to protect the woman's health and also found that the wording covered D&Es. Carhart will be the lead plaintiff in a federal court challenge led by the Center for Reproductive Rights, a nonprofit legal advocacy organization. Two other organizations have said they will also challenge the bill in different federal courts.

The McClains said they are at peace with their decision to terminate their first pregnancy -- and probably would have opted for a D&X if they had discovered how sick their baby was too late for a standard D&E. A few more days, said Sue, now 41, and she would have had to travel to a provider in Kansas that specializes in late-term procedures, such as D&X.

"This was not a flip decision," Brian said. "Our other option was to give birth to a dead baby, piling trauma upon trauma. People think they have good reasons to protest the procedures, but they do have their place."

Less than four months after her abortion, Sue became pregnant again, and successfully delivered her daughter, Lia. In the couple's next two attempts to have a child, their babies died in the womb at seven months due to a placental clotting disorder -- but their induced births were not considered abortions. Last year, the McClains welcomed their second daughter, Tessa.