Thin legal line separates two similar procedures

By Mary Beckman

May 7, 2007 12 AM PT

Special to The Times

On April 18, the U.S. Supreme Court upheld the federal Partial-Birth Abortion Ban Act of 2003. It bans a type of abortion often referred to as “partial-birth abortion” and serves up two years imprisonment and/or a fine for anyone performing the procedure.

It is legal if the woman’s life is in danger, but can’t be done just to protect her health.

Physicians don’t use the term “partial-birth abortion,” which was coined in 1995 by the National Right to Life Committee, which seeks to outlaw abortion. “It doesn’t exist as a medically defined procedure,” says Dr. Eleanor Drey, an obstetrician/gynecologist and medical director of the Women’s Options Clinic at UC San Francisco.

But, she says, because legislatures and courts have legally defined it, physicians have to determine what is meant by it.

A “partial-birth abortion” refers to a certain type of abortion after the first trimester, which extends from week one to 12. Most states ban all abortions after the fetus becomes “viable,” or has a chance of living outside its mother’s womb. This occurs around week 24.

Dr. Michael Ross, chairman of obstetrics and gynecology at Harbor-UCLA Medical Center in Torrance, says the law probably refers to a procedure called “intact dilation and extraction,” or intact D&X.; It differs from another procedure, D&E;, or dilation and evacuation, which is not outlawed.

Both procedures start the same. The cervix is dilated via mechanical stimulation or a drug, which takes a day or two.

To perform a D&E; (not banned), suction and forceps are then used to pull fetal tissue from the uterus. In the process, the fetus is broken up.

In an intact D&X; (banned), the fetus is removed feet-first and mostly whole, except for the head, which is too big. Physicians then use suction to remove the brain and collapse the head. In either case, physicians sometimes inject the fetus with a drug to kill it before beginning dilation.

Drey says physicians are breaking the law if they start to remove an intact fetus while it is still alive but not if they remove a fetus intact when it is dead.

But D&E; and intact D&X; are closely related, and physicians might start with one and have to finish with the other. For example, physicians can’t control precisely the right amount of time for the cervix to open. “If the cervix opens too much, the fetus might start to come out,” Drey says.

She thinks that under these circumstances physicians would be in the clear: “If you intend to do a standard D&E; and then find that you have to do a procedure that the law bans, then as I understand it, you are not breaking the law.” However, she adds, physicians aren’t sure.

A physician could argue the intact D&X; was not his or her intent, “but that feels like a flimsy protection against such grave legal consequences.”

No one knows how often the D&X; procedure is done because that information is not compiled anywhere. About 1.2 million women have abortions in the U.S. every year, Drey says, the vast majority in the first trimester. About 10% to 12% of abortions happen in the second trimester. About 1.4% occur after 20 weeks, according to the Centers for Disease Control and Prevention.

One reason for second trimester abortions, Drey says, is if a woman did not know she was pregnant to start with -- for example, if she continues to bleed after getting pregnant and doesn’t have symptoms such as morning sickness. And teens often don’t hurry to reveal unintended pregnancies.

Although women can legally get abortions for any reason in the second trimester, most late-term abortions are due to developmental defects such as fluid in the brain or organs growing outside the body.

“Most diagnoses that show severe abnormalities don’t show up until the second trimester,” Drey says. The ultrasounds that would reveal such problems are generally not done until 18 to 20 weeks.

Drey says an intact D&X; might also be performed if physicians would like to autopsy the fetus to learn what went wrong with the pregnancy.

Physicians are especially concerned about cases of second trimester miscarriages in which an intact D&X; has to be performed to help the patient. Drey described one woman she treated who lost her pregnancy to a miscarriage that bled profusely. “The fastest way to stop the hemorrhaging was to perform the banned procedure.”

“If you’re in a position like that, I don’t know what the law would say,” Ross says.