In a recent article in Dissent, Carole Joffe analyzes the challenges ahead for the “reproductive justice” movement in the post-Bush era (the use of this phrase over “reproductive rights” has been influenced by the work of the organization SisterSong). Joffe finds particularly worrisome the recent decision by the Supreme Court (Carhart II) to uphold the congressional ban on so-called “partial-birth abortion” without an exception to preserve the health of pregnant women. She worries, as do many who support legal abortion, about the door this opens to future restrictions on abortion.

 

Joffe notes that the ban permits a doctor to perform intact D&E (or D&X) to save a woman’s life, and it permits a doctor to perform this procedure on a fetus that is no longer alive. A doctor is even permitted to cause fetal demise (usually by an injection into the uterus of some sort of drug that induces fetal demise) and then perform intact D&E (before viability). Most doctors acknowledge that the injection of such a drug carries some, but a small, risk to the pregnant woman. Nevertheless, a doctor may elect to cause fetal demise and then perform intact D&E over standard D&E (in which the fetus is dismembered in the uterus and removed in pieces), because there are generally fewer risks to the pregnant woman’s health with intact D&E (e.g., less risk of damaging the uterus or cervix, of infection, etc.).

I’m wondering if the legal permission to perform intact D&E in the situations described above implicitly permits intact D&E to be used by doctors to preserve the health of patients. As Joffe herself notes, the criteria for determining when an abortion is necessary to save a woman’s life are debatable, and the criteria for determining when an abortion is necessary to preserve a woman’s health are even more controversial.  As far as I know, those who advocated the inclusion of an exception for preserving a woman’s health (when the PBA ban was under review) did not offer to clarify the criteria for deciding such cases. 

 

I would be interested in hearing suggestions for articulating when intact D&E might be necessary on a live fetus to preserve a woman’s health. I can imagine cases where an abortion might be necessary to save a woman’s life and there might not be enough time to cause and wait for fetal demise (e.g., eclampsia), but I’m trying to imagine non-life-threatening cases where intact D&E might be required on a live fetus to preserve a woman’s health.  Are there any bioethicists out there who have encountered such cases? If such cases are hard to find or describe, then would it make more political and legal sense to argue that the Court’s decision instructs doctors on what they need to do to preserve their patients’ health while avoiding intact D&E on a live fetus, and thus the ban does not subject doctors to an unreasonable degree of legal limbo (it might be unwise for other reasons). By arguing this (rather than taking an alarmist approach), one could insist that any future restriction would similarly need to be drawn in such a way that allows doctors to protect their patients’ health without exposing themselves to criminal prosecution, and that no precedent has been set to the contrary.

Comments

[Linda MacDonald Glenn]

Great blog! Would you add the Women's Bioethics Blog to your blogroll and we'll reciprocate? thanks, Linda