Tuesday, April 24, 2007

What Experts "Know" About Partial Birth Abortions

Mark Graber

I confess that I was intrigued by Professor Paulsen's comment, "I have no doubt that many (but not all) men and women, confronted with fuller information about the abortion procedure, would recoil at the idea. Being forced to see what is entailed, or to understand it more fully, will affect decisions. "

Consider the amicus briefs in Carhart. To no one's surprise, the usual suspects are in the usual places. Pro-choice groups think the ban on partial birth abortions unconstitutional, pro-life groups think the ban constitutional. Yawn. All the medical interest groups ("Medical Students for Choice," the "Association of American Physicians and Surgeons," a conservative medical lobbying group) also line up in the expected places. What I suspect is also to no one's surprise is that every major professional medical group that participated also opposed the ban on partial birth abortions. These groups included the American Public Health Association, the New York Obstretrical Society, and most important, the American College of Obstetricians and Gynecologists ACOG), an organization whose membership includes 90% of the board certified obstetrians and gynecologists in the United States. Now whatever else may be said about the doctors in the ACOG, I suspect that every day, they forgot more than Professor Paulsen, myself, or any other member of Balkinization knows about the medical procedures involved in a partial birth abortion (and, I also suspect, they will be fully capable of describing any other abortion procedure and every procedure for giving birth in ways all of us will find pretty disgusting).

In short, there is absolutely no evidence that complete knowledge about partial birth abortions (which includes knowledge about the procedure, the alternatives, and the reasons some women seek those procedures) has any tendency to make persons more pro-life or at least more anti-partial birth abortion. Does this mean government should do whatever the ACOG recommends? Of course not. But given the choice, I would take the word of obstetricans and gynecologists on what an abortion procedure really entails over a bunch of male political scientists and male law professors, most of whom would probably faint at the sight of blood during either a birth or an abortion.

As is the case with most people, I think people who really think about things seriously will agree with me on all matters I think I think about seriously. But that I sincerely believe something hardly counts as evidence that serious thinkers will reach the same conclusion.


Even if fuller knowledge might make some people recoil, the Court's inclusion of similar language was a decoy and nothing more. The Court in Gonzales v. Carhart did not hold that women considering intact D&E procedures need more information to make an informed decision (not that such a holding would be any less condescending to women). Instead, the Court decided what it thought was best for women and removed the choice from women. That decision is not consistent with the notion that more knowledge alone would affect the number of abortions.

If a surgeon delineated the details of a rhinoplasty some people would probably not go through with the procedure.

Surgical procedures are almost necessarily off putting.

It's not about the information, it's about the efficacy and safety of the procedure.

As long as Roe remains good law, women have a right to expect that any medically necessary procedure involving their pregnancy is the safest that is medically available.

The Court took that right away from women in the instant case.

That is bad law and bad medicine.

First, amen, Prof Graber. It is exceedingly tiresome to deal with lawyers (academic or otherwise) who think by virtue of having a JD bestowed on them (whether from Yale or Tulsa) they have ipso facto been given insight into all things that the law touches on. There is, to parrot Judge Posner, a decided lack of knowledge and specialziation in constitutional law. Lawyers have some specialized knowledge but this does not make them expert in assitsted suicide or abortion procedures. *However* I have to say that hearing the process of an intact D/E described gives me moral discomfort. But my reaction is one in the abstract. It is difficult for me to belive that a woman who is undergoing a 2nd or later term abortion does not have *some* idea of what she is doing. On top of that, why is it never mentioned that this procedure is exceedingly rare and we (JUstice Kennedy et al) are being *exceedingly* presumptuous to think that this a decision that mother makes regardless of her "love for her child" . . .

I thank Mark for reminding us of the special role of doctors in abortion jurisprudence. Mark would defer to them, as would all those justices favoring abortion rights through the years. The complaints about "paternalism" really need to be understood in a particular light: there's nothing wrong with paternalism, but it has to be of the right sort. Thus proponents of a right for a doctor to do what he believes best in protecting the woman's exercise of her constitutional liberty--which apparently means that the doctor need not tell the patient anything at all (the dissent doesn't dispute Kennedy's allegation on that point); we're to understand that exercising constitutional liberty is delegable to those who know better--now dare complain about paternalism.


You characterize the issue as:

a right for a doctor to do what he believes best in protecting the woman's exercise of her constitutional liberty

Surely you're not serious. The issue is the ability of the doctor to do what he believes is best for the woman's health and well-being under the actual circumstances.

Assuming that the attending doctor would be concerned with matters of constitutional liberty is as absurd as believing that legislators, judges and lawyers can substitute their judgement for that of the physician on the scene.

"In short, there is absolutely no evidence that complete knowledge about partial birth abortions"

has any impact on the opinions of professional organizations representing people who make money off it, and who have a general desire not to have their activities regulated by outsiders.

But, of course, the point of informed consent isn't that the doctor be informed before the patient consents, it's that the patient be informed.

Antonio, that's a rough paraphrase from Steven's concurrence in Stenberg, in which he denied that the state had any "legitimate interest in in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty."

Who will be the first woman to file a claim against this new law using the following reasoning:

I fear getting pregnant because I may be faced with the personal medical need for a late term abortion. The safest procedure is unavailable and I don't want to risk death anymore than necessary. I also think I will eventually regret not having children. The clock is ticking.

The main problem with the new standard is that it can be applied to potential regrets from any reason, who decides the valid reasons? Why not argue that the unavailability of medical care will cause (some) married women to avoid pregnancy, or simply suffer mental anguish as their third trimester arrives? I personally know that it is common for me to change my behavior based upon the availability of medical care.

As a non-lawyer, I would like to know what legal effect the descriptive language in Part I of Gonzales v. Carhart plays. What intrigues me is not the tone (condescending or otherwise), but the manner in which Kennedy chooses to describe the procedure and the testimony he chooses to quote.
As I read through the first section, I got the distinct impression that Kennedy was trying to gross me out. By the time I finished reading his description of intact D&E, it seemed like legal questions didn't matter much; the point, rather, was to elicit an emotional response on my part. Quoting the nurse who observed Carhart, I learn that little fingers clench, little legs move, and then the baby's skull is opened and the brain is scraped out. Instead of talking about fetal tissue, Kennedy describes the dismemberment of a baby's limbs. Out of curiosity, I followed the links to the Stenberg opinion. In the first section of that opinion, we read Breyer's description of a similar procedure. Breyer prefaces his description by saying that it may appear cold and callous to a casual reader. Instead of legs and arms, instead of dismemberment, we read about the 'disarticulation' of 'fetal tissue'. The tone is more clinical, colder, less emotive.
So here's what I want to know: what legal difference (if any?) does the descriptive language in Kennedy's opinion make? Does it matter how he chooses to describe intact D&E? Does his choice of words effect any kind of transformation in the status of the fetus? Does the choice of words like 'leg' and 'arm' change a fetus into a baby? Or does the description of the procedure play no role in future law? (By the same token, does it matter that Kennedy simply chooses to downplay Breyer's choice of language and insert his own more emotive idiom?)

RE: "What Experts "Know" About Partial Birth Abortions"

The above was probably the most coherent argument I have heard thus far. Everything else aside, the medical community itself has consistently supported legalized abortion. that to me is for the most part the only group whose opinions should be taken really seriously.
The decision to ban the procedure even when the health of the mother is at stake strikes me as somewhat shortsighted, and punitive.

I noticed that Ginsburg seemed very unhappy with the ruling and understandably so. i think she makes valid points about the majority not really taking Stenberg or Casey seriously. The majority opinion was not particularly high on really relevent precedent.
Kennedy seemed a little off his game in this case as well. he cited the fact that it is "generally the safest method of abortion during the second trimester." in a paragraph in which he was arguing that it was unnecessary and that other methods existed. He also talked about the procedure itself. Pretty much any medical procedure is gross.

Ginsburg also addressed the issue of the medical communities take on this citing the fact that “9 professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D&E carries meaningful safety advantages over other methods”. In short no one seems to take the opinions of the medical community as seriously as I would like.

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