Are Different Abortion Methods Morally Distinguishable? The U.S. Court of Appeals for the Fourth Circuit Hears Richmond Med. Center v. Herring

By SHERRY F. COLB
Wednesday, Oct. 29, 2008

As Election Day 2008 approaches, we should keep in mind one of the many important distinctions between a President McCain and a President Obama: the Justices and judges that each would nominate to the federal courts. Among the issues that their respective appointees would approach differently is that of abortion: President Obama would nominate Justices and judges who support a woman's constitutional right to terminate a pregnancy; President McCain would, by contrast, nominate opponents of this right. Among the specific questions that the next president's judicial appointees will face, moreover, is the constitutionality of statutes that prohibit specific methods of abortion.

Yesterday, the relatively conservative U.S. Court of Appeals for the Fourth Circuit confronted just such a question when it sat en banc (as a full court) to hear argument in Richmond Medical Ctr. v. Herring. The case presents the question whether the Virginia "Partial Birth Infanticide Act" (PBIA) - which prohibits intact dilation and evacuation abortion (a.k.a. "D & X") - violates a woman's federal constitutional right to terminate a pregnancy.

After a brief exposition of the case itself, this column takes up the broader question of whether and why different methods of abortion might be considered morally distinct from one another.

How Richmond Medical Center's Journey Began: Virginia Passes the PBIA

The Fourth Circuit case began with the passage of the Virginia PBIA in 2003. At the time, this statute was one of several passed in an effort by the pro-life movement to test the Supreme Court's willingness to approve outright prohibitions against a method of abortion.

Prior to urging the passage of such laws, the pro-life legislative strategy had emphasized rules that would make abortion of all sorts more difficult to obtain. Such rules included waiting periods, "informed consent" requirements, and parental-notice rules for pregnant minors.

At the time the Virginia PBIA was passed, the highest court of the land had yet to uphold any post-Roe v. Wade criminal ban on abortions. In 2000, in fact, the Supreme Court had specifically struck down a Nebraska prohibition of so-called "partial birth abortions" in Stenberg v. Carhart (Carhart I), in part because the ban did not provide an exception for protecting the health of the mother.

As of 2003, the prospects for such laws were therefore not good, from the standpoint of existing Court precedent. Not surprisingly, then, in the Richmond Medical Center case, the district court enjoined (that is, ordered the government to desist from) enforcement of the Virginia PBIA, and the Fourth Circuit Court of Appeals affirmed the injunction.

A More Conservative Supreme Court Directs the Fourth Circuit to Reconsider Richmond Medical Center

The U.S. Supreme Court's personnel, however, had undergone some changes under President George W. Bush since the Court had last reviewed a "partial-birth abortion" ban. And after the initial Richmond Medical Center rulings had been issued, the U.S. Supreme Court upheld a statute that was quite similar to the one it had invalidated in 2000. In Gonzalez v. Carhart (Carhart II), the Court held that the state's interest in protecting the developing fetus was strong enough to justify the federal ban in question, given the overt brutality of the procedure and the possibility of maternal regret.

At the same time, the Court - in what is called a "grant, vacate, and remand" of Virginia's petition for certiorari - directed the Fourth Circuit to reconsider its decision in Richmond Medical Ctr. v. Herring, in light of the Supreme Court's manifest change of course in Carhart II.

Following the Court's instructions, a three-judge panel of the Fourth Circuit once again considered the Virginia PBIA and, once again, struck it down as violating a woman's right to abortion by creating an undue burden on her ability to terminate a pregnancy in the second trimester. The panel, in a divided opinion, reasoned that the PBIA was distinguishable from the law upheld in the Supreme Court in one significant respect: It contained no requirement that the provider intend to perform a D & X (the prohibited form of abortion) at the outset of the procedure. Because it is difficult for an abortion provider to ensure at the beginning of a dilation and evacuation procedure (the most common permissible form of second-trimester-abortion) that it will not evolve into a D & X, the result of the Virginia law could easily be to deter doctors from performing second-trimester abortions altogether, out of a legitimate fear of criminal prosecution under the PBIA.

After the Fourth Circuit ruled for the second time on the Virginia prohibition, the appellant petitioned for rehearing en banc - that is, rehearing of the case by a panel consisting of all judges in the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit granted the petition and heard oral argument yesterday. In the remainder of this column, I will consider the issues before the court and their broader implications.

Different Methods of Abortion

A woman who wishes to terminate a pregnancy in her second trimester has a limited number of options. One option - the most commonly used - is the "dilation and evacuation" (or "D & E") method, in which the provider first dilates the woman's cervix, then kills and dismembers the fetus - including its head - inside the woman's body, and finally manually removes the remains of the fetus.

A second is the "intact dilation and evacuation" (or "D & X") procedure, in which the provider dilates the woman's cervix, then pulls much of the body of the fetus out of the woman's uterus and birth canal while its body is still intact (and the fetus is still alive), and finally punctures the head of the fetus so that the head collapses and can then be removed from the mother's body. Both of these methods are upsetting to contemplate, but the latter method has been the subject of targeted bans.

The D & E is much more common than the D & X. The reason that providers perform the D & X on occasion, however, is to decrease the chances of injury to the woman. Those who favor the ban on D & X's argue that this procedure is distinctly offensive because most of the fetus has already emerged, alive, from the woman at the time that the doctor kills the fetus. This fact, supporters contend, makes the procedure very much like infanticide - the killing of an infant who is already born. Even if there is a right to abortion, they say, there is no right to kill a baby who is already born, and the fetus that has emerged almost completely from the womb should be viewed as more "born" than "unborn" at this point.

The distinction might seem intuitively appealing. If abortion takes place inside a woman's body, and infanticide takes place outside a woman's body, then why not draw the line between the two when the provider has removed most of a fetus from the woman? The difficulty with this distinction is best explained if we consider the meaning of the term "viability" as it applies in the abortion context.

Viability: The Court's Line Between Protected and Unprotected Abortions

In Roe v. Wade, the Justices identified fetal viability as an important legal moment in pregnancy. At viability, the fetus is able to survive and grow into a baby outside of a woman's body.

The Court held that the state's interest in protecting unborn life becomes compelling at the point that the fetus reaches viability and that the state, accordingly, may then prohibit abortion outright, as long as it exempts from the prohibition those cases in which continuing the pregnancy would threaten the life or health of the pregnant woman. On this approach, oversimplifying a bit, a woman has a constitutional right to terminate her pregnancy for any reason until viability, at which point states may criminalize abortions that are not needed to protect a woman's life or health.

Though the Court has, in the years following Roe, reduced the robustness of the right to abortion, it reaffirmed the viability line in Planned Parenthood v. Casey, holding that prior to viability, states could not impose an "undue burden" on the right. After viability, as before, the state could ban all terminations, save for those performed in order to preserve the life or health of the mother.

Since Roe was decided, commentators have questioned the relevance of the viability line. After all, if fetal status is what counts, is it really accurate to say that the fetus achieves moral rights by virtue of its lungs having matured to a particular point? Don't neurological and cognitive capacities reflect more about developing "personhood" than does the theoretical ability to live outside the womb?

I, for one, find the viability line persuasive. My reaction to it has less to do, however, with a sense of the fetus's changing moral worth than with the consequences of terminating a pregnancy prior to and after viability, respectively. Prior to viability, the fetus is unable to survive if it is removed from the mother's womb, even if the removal is gentle, caring, and aimed at preserving the fetus's life. This means that if - as many believe - a woman has the right not to have her body occupied by another being, however valuable that other being might be, then viability marks the point at which it is, in theory, possible to accomplish two things at once - protecting the woman's bodily integrity and preserving the life of her unborn child. That is, viability means that a woman can expel the fetus from her body without ending its life.

After viability, then, it is arguably legitimate to prohibit the deliberate killing of the fetus, given that it is possible for a woman to terminate her pregnancy without ending the fetus's life. For this reason, methods of termination become crucial after viability: It is now possible to terminate, but not to kill, and killing must therefore be justified - from a moral standpoint - by reference to something other than a woman's right not to continue her pregnancy.

The reality, I acknowledge, is that no court has interpreted Roe to protect post-viability abortions that preserve the fetus's life. Courts have assumed that no termination (other than one aimed at preserving a mother's life or health) is constitutionally-protected after the fetus becomes viable. Most constitutional challenges to abortion legislation therefore address limits on pre-viability terminations.

Recall, however, that prior to viability, the fetus will die if it is removed from the woman's body. That is the very definition of "nonviable" in the case of a pregnancy. Therefore, if a woman terminates her pregnancy prior to viability - as she has a legal right to do - the choice of method will not affect the outcome. This is a significant point because it renders the reference to "partial birth" misleading. Even if the provider gently removes the fetus from the woman's body after dilation and does not actively kill it, the fetus will die. For a nonviable fetus, in other words, birth - partial or complete - is the gateway to death.

It follows that when supporters of "partial-birth abortion" or "partial-birth infanticide" bans argue that it is especially reprehensible to kill a fetus that is so close to being born, they ignore the reality that for the nonviable fetus, being born is no better - from a consequential perspective - than being killed. The fetus will die either way.

The Double-Effect Distinction

Though the consequences may be the same, however, some abortion opponents might still favor abortion by induction (inducing labor to terminate a pregnancy) over other methods. That is because simply removing the fetus from its mother has the primary effect of ending the pregnancy and only the secondary effect of leading to the death of the fetus (which inevitably dies outside the woman). By contrast, a D & E and a D & X both involve the intentional killing of the fetus - as opposed to its "natural" death as a consequence of removal from the womb.

To understand the logic of "double effect," consider debates about euthanasia. If a terminal patient is suffering terrible pain and longs for death, current U.S. law (everywhere but Oregon) prohibits a doctor from assisting in the termination of that patient's life. However, most states permit a doctor to give the patient sufficient pain medication to relieve his pain, even if the consequence of the necessary amount of pain medication is to depress respiration and cause the patient's death. That is, treating pain is permissible even if it necessarily causes death, but deliberately causing death is impermissible.

The application of this principle to abortion is clear. Terminating a pregnancy by inducing labor and thus expelling the fetus can be aimed primarily at terminating the fetus's occupation of the woman's body, with the inevitable secondary effect of the fetus's death. The same cannot be said of terminating a pregnancy by killing the fetus and only then removing it from the woman's body. There, the killing is direct and intentional, not a mere byproduct of removal.

Ironically, then, the least objectionable method of abortion, by the lights of PBIA supporters, may be the method in which death occurs in a fully-born fetus.

The Pointlessness Problem

If we lived in a different world, where abortion by the induction of labor were a safe method by which to terminate a woman's pregnancy, then prohibitions against D & X (and effectively, by excluding an intent requirement, against D & E as well) would not unduly burden a woman's right to terminate a pregnancy. Moreover, abortion by induction would seem to resolve the viability issue directly: Only non-viable fetuses would die after being expelled.

But that is not the real world. The reality is that labor is an extremely painful and risky experience for a woman, one that she is willing to undergo to achieve a live-birth but one that seems pointlessly harmful if the fetus will not survive as a result. Thus, in the world we inhabit, to preserve the fine distinction between direct killing and double-effect killing will entail severe suffering and pain for the woman, along with her exposure to avoidable health risks.

One might also consider the fact that proponents of laws like the Virginia PBIA would likely acknowledge, if asked, that they oppose all methods by which a pregnancy might intentionally be terminated - including induction of labor. They therefore do not rely on the moral differences explored in this column, but rather on what they view as an irrational line that other people draw between early and late abortions and between a fetus inside a womb and a baby on its way out of the birth canal.

For people who would equate the use of a morning-after pill to prevent implantation with the direct killing of an infant born alive after a normal labor and delivery, it seems that more than double-effect moral reasoning is required to justify what they themselves would likely characterize as an arbitrary line between different methods of abortion.


Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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