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Legal Analysis: Partial Birth Abortion (1999)

AN ACT to amend the penal law, in relation to the crime of partial birth abortion. By Donna Lieberman, Director, Reproductive Rights Project and Miriam Spiro, Project Counsel Introduction Senator Maltese has introduced, and the State Senate has passed, S.1638, a bill that, like its predecessor, S. 6135 of 1998, would create the crime of so-called “partial birth abortion.” Like S.6135, the current bill uses the inflammatory term “partial birth abortion,” a term not recognized by the medical establishment, to exploit women’s medical tragedies as a means of eviscerating reproductive choice. In the last two years, seventeen courts have enjoined “partial birth bans” in whole or in part. This bill suffers from the same constitutional infirmities that courts across the country have recognized in striking down comparable “partial birth” bans:

  • The bill is impermissibly vague because it can be interpreted to prohibit constitutionally protected second and possibly even first trimester abortions.
  • The bill forces women to undergo riskier rather than safer procedures which may compromise their lives, health and future fertility.
  • The bill unconstitutionally prohibits abortions even when the fetus is so profoundly impaired that it can never be viable.

The bill falsely implies that it only bans a single procedure performed on viable fetuses shortly before birth. In fact, New York law already prohibits abortion after 24 weeks of pregnancy except in the rare instance that a woman’s life is in danger. In addition, the federal Constitution requires states to allow abortions necessary to safeguard a woman’s health or in situations where a fetus is non-viable. However, the absence of an explicit health-saving exception in the New York statute often intimidates doctors from providing treatment in these cases. Thus, women who discover late in pregnancy that they may wish to terminate their pregnancies – many times because they are carrying a fetus so profoundly damaged that it can never become viable – are often unable to receive appropriate treatment. I. The Bill is Unconstitutionally Vague in that it Can be Interpreted to Criminalize Constitutionally Protected Second and Even First Trimester Abortions. The proposed bill defines the new felony of a “partial birth abortion” as “partially vaginally delivering a living fetus before killing the fetus and completing the delivery.” Unlike its predecessor, S.6135, this bill states: “[t]his procedure is characterized by the American Medical Association as ‘intact dilatation [sic] and extraction’ (or intact D&X).” The American Medical Association has never characterized “vaginally delivering the fetus before killing the fetus and completing the delivery” as intact D&X. On the contrary, “the procedure” described in the definition of “partial birth abortion” may be characterized by several different abortion procedures, including some performed in the first trimester. It is incorrect to state that the definition given by the bill encompasses only the intact dilation and extraction procedure. Thus, including intact D&X in the definition of “partial birth abortion” does not save the bill from being unconstitutionally vague. “Partial birth abortion” has no medically accepted definition. While the bill purports to target abortion procedures performed late in a pregnancy — specifically intact D&X procedures — the vague and medically unsubstantiated language of the bill also encompasses the vast majority of second-trimester abortions. As one physician testified:

As I understand it, the intent of this legislation is to ban one variant of the dilation and evacuation procedure (D&E), which is the dominant method used for second-trimester abortions in the United States. Although the legislation apparently is aimed at very late abortion procedures, because of the vagueness in the language, it could be interpreted to ban most or all D&E procedures, the safest method of abortion in the second trimester between 12 and 18 weeks.

Thus, the overwhelming effect of the proposed bill would be to ban constitutionally protected second trimester abortions. Defining a crime in such vague language is unconstitutional. The bill fails to give notice of precisely what conduct is proscribed so that individuals may conform their conduct to the law. See Smith v. Goguen, 415 U.S. 566, 572 n.8 (1974); Grayned v. City of Rockford, 408 U.S. 104, 108-9 (1972). It also invites arbitrary and discriminatory enforcement by failing to “provide explicit standards for those who apply them.” Grayned, 408 U.S. at 108. Like all vague laws, the bill is also problematic because the uncertainty it creates can inhibit the exercise of constitutionally protected rights. This is the intended result of this legislation. It forces physicians to mount a criminal defense, with all its attendant economic and professional costs, for every abortion that could fall within the vague parameters of the bill. Confronted with this prospect, physicians are likely to be intimidated from providing abortions altogether, and they will certainly avoid those procedures they think the ban is likely to cover. II. The Bill Unconstitutionally Endangers Women’s Lives and Health. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the United States Supreme Court reaffirmed a woman’s fundamental right to reproductive choice. In doing so, the Court held that states may not impose an “undue burden” on a woman’s right to obtain an abortion of a nonviable fetus. Id. at 877. State laws impose an undue burden if they have “the purpose or effect of placing a substantial obstacle,” id., in the path of a woman seeking such an abortion. At the point of viability, states may regulate and even prohibit abortion altogether. Even then, however, the law must contain exceptions for the mother’s life and health. Id. at 879 (quoting Roe v. Wade, 410 U.S. 113 (1973)). In addition, the New York State Constitution guarantees the right of reproductive choice to at least the same extent as the federal constitution. Hope v. Perales, 83 N.Y.2d 563, 575, 634 N.E.2d 183, 611 N.Y.S.2d 811, 814 (1994). In contravention of these principles, the proposed bill would prohibit a doctor from performing an abortion even though the fetus has not reached viability or is so profoundly impaired that it could never become viable. The bill also fails to define a constitutionally adequate exception for life-saving or health-saving abortions. Finally, the bill bans procedures that offer the best hope of preserving a patient’s life, health or future childbearing capability. A. The Bill Bans Abortion Procedures Even When the Fetus is Non-viable. Casey makes clear that, as long as a fetus is not viable, the government may regulate abortion to ensure that a woman’s choice to terminate her pregnancy is informed and her health protected, but only if the regulations do not constitute an undue burden. Id. at 852. The bill, however, bans abortion procedures even when the fetus has not yet reached viability or has no chance of ever becoming viable. In certain tragic situations, the fetus suffers from anomalies such as the absence of any brain or a brain that is developing outside the head; the lack of vital organs; or fatal genetic defects which deprive it of any chance of meaningful life outside the womb. The decision whether to terminate such a pregnancy is a difficult one, but must be decided by the woman in accordance with “her own conception of her spiritual imperatives and her place in society.” Id. at 852. B. The Exception for Life-Saving Abortions is Unconstitutional Because it is Too Narrow. The bill states that its provisions “shall not apply to a partial birth abortion . . . that is necessary to save the life of a mother whose life is endangered by a physical disorder, illness or injury where no other medical procedure would suffice for that purpose.” This exception suffers from several flaws. It is limited to situations where the woman’s life is endangered by a “physical disorder, illness or injury.” This language excludes some life-threatening situations by enumerating others. However, the government may not choose among life-threatening circumstances and still preserve women’s lives as Casey requires. Moreover, a physician may perform the otherwise banned procedures only when “no other medical procedure would suffice for that purpose.” Consequently, if a hysterectomy or hysterotomy could save the woman’s life, notwithstanding their consequences for the woman’s health or future fertility, the physician still could not perform a D&X procedure. A state may not, however, “require the mother to bear an increased medical risk” to serve a state interest in fetal welfare. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 769 (1986) (citation and internal quotations omitted). The bill also fails to specify the standard governing the determination of whether a particular procedure is “necessary” to save a woman’s life. The bill’s silence will leave the attending physician to wonder and worry whether his or her good-faith judgment that an abortion is necessary will suffice, or whether other physicians will be asked to evaluate the “reasonableness” of that judgment after the fact. The state is not permitted to set such “a trap for those who act in good faith.” Colautti v. Franklin, 439 U.S. 379, 397 (1979). The mere possibility of second-guessing would deter physicians from performing constitutionally protected, life-saving abortions. Id. at 396. C. The Bill is Unconstitutional Because it Fails to Contain an Exception for Women’s Health. All limitations on abortion must contain exceptions for a woman’s life and health. Under Roe v. Wade, a state’s interest in potential life becomes “compelling” at the point of viability, i.e., when the fetus “presumably has the capability of meaningful life outside the mother’s womb.” 410 U.S. at 163. At this point, a state may proscribe abortion altogether, “except when it is necessary to preserve the life or health of the mother.” Id. at 164 (emphasis added). Justice Blackmun, writing for the court in Roe, summarized the law as follows:

For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Id. at 164-65. See also Planned Parenthood v. Casey, 505 U.S. at 880, in which the Court stated that “the essential holding of Roe forbids a State from interfering with a woman’s choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health.” Bill S.1638 not only unlawfully regulates abortions that occur before viability, but it also fails to exempt from criminal sanctions those “partial birth abortions” performed to protect a woman’s health. D. The Bill Unconstitutionally Forces Women to Undergo Riskier Procedures. The state may not enact an abortion regulation that compromises a woman’s health by forcing her to undergo a more dangerous procedure. The bill, however, would strip a woman of the right to choose the abortion method that a physician deems is the safest and most appropriate for her particular medical circumstances — that is, the method that provides her with the best chance of preserving her life, health and future fertility. The Supreme Court has held that physicians must be allowed to exercise their professional judgment.

Roe stressed repeatedly the central role of the physician, both in consulting with the woman in whether or not to have an abortion, and in determining how any abortion was to be carried out. . . . “[T]he abortion decision in all its aspects is inherently, and primarily, a medical decision.”

Colautti, 439 U.S. at 387 (emphasis added) (quoting Roe, 410 U.S. at 166). As discussed above in Part I, the language of the bill prohibits D&Es, one of the safest and most commonly used abortion procedures between the 12th and 18th week of pregnancy. Similarly, the bill prohibits the D&X procedure, a variant of the D&E procedure, which is often the safest abortion procedure after the 19th week of pregnancy. See Women’s Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051, 1070 (S.D. Ohio 1995), aff’d, 130 F.3d 187 (6th Cir. 1997), petition for cert. filed (Dec. 5, 1997) (finding the D&X procedure safer as compared to induction, hysterotomy and hysterectomy). The court also found that the use of D&X in the late second trimester “appears to pose less risk to maternal health” than D&E “because it is less invasive — that is, it does not require sharp instruments to be inserted into the uterus with the same degree of risk of uterine and cervical lacerations.” Id. The bill would also limit a physician’s discretion to adapt the abortion procedure to preserve a woman’s health once the operation has begun. The Ohio court commented that physicians who use the D&X procedure “may not know which procedure they will perform until they encounter particular surgical variables and circumstances after they begin the procedure to terminate the pregnancy.” Id. at 1067. The bill undermines basic constitutional principles at the expense of women’s health and lives. This harm is both unacceptable and unconstitutional.

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