Early Versus Late Abortions Controversies in Medicine

Medical attitudes toward abortion have constantly been shaped by the medical profession's knowledge of and attitude toward the stage of development of the fetus, interacting with local cultural, religious, and legal ideas and beliefs. Together, these factors have had a significant impact on medical practice. Medical practitioners often have more difficulty with late abortions as compared to earlier ones, because the procedures are more difficult to perform in late abortions, because of the more advanced state of fetal development, and because of the political climate surrounding so-called partial-birth abortion.

Prior to the latter half of the nineteenth century, abortion was available in the United States under the doctrines of British common law that permitted termination of a pregnancy until the time of quickening (detection of fetal movement). However, medical knowledge available at that time made it difficult to confirm a pregnancy with certainty prior to quickening, for it was only this detection of fetal movement that confirmed the existence of a living human fetus. There is little in the historical literature that describes how physicians in that era actually felt about abortions, although based on the information discussed below, one can assume that there were concerns about abortion.

By the second half of the nineteenth century, as scientific knowledge grew, so did the realization that fetal development occurs on a continuum, suggesting that the fetus is a living entity before fetal movement is felt. Prompted by this new medical knowledge, physicians, particularly those who were members of the newly formed American Medical Association (AMA), began openly to oppose abortion and urged its criminalization as an immoral practice. As a basis for this change, the Hippocratic Oath was used to oppose abortion at any time during pregnancy.

The concept of the fetus as a human entity separate from the mother has long been the subject of ethical concern within the medical profession. The AMA's Principles of Medical Ethics permit physicians to perform abortions, provided they are done in accordance both with the law and with good medical practice (Council on Ethical and Judicial Affairs, Opinion 2.01). In general, for the last 100 years or more, and especially since the U.S. Supreme Court decision in Roe v. Wade greatly liberalized the legal permissibility of abortion, medical practitioners have tended to place the value of the life of the mother above that of the fetus and there has been general agreement that late abortion is permissible in those cases where medical judgment deems that the health of the mother is seriously compromised by a pregnancy.

However, just as Roe v. Wade allowed for some restrictions on abortions after fetal viability, so the medical profession has shown a reluctance to perform abortions later in pregnancy, even early in the second trimester. In addition to new ethical dilemmas over fetal and maternal rights, many medical professionals remain ambivalent about the morality of abortion, a conflict that is heightened both by increased technological sophistication in the field of perinatology and genetics and the current political climate.

Depending on the technology available to a physician and the condition of the individual fetus (gestational age and any developmental deformity), it is often possible, depending on the availability of neonatal intensive support, to save the lives of premature babies born at twenty-seven weeks gestation. Babies born at twenty-four to twenty-six weeks and earlier have survived with intensive neonatal intervention and support, though often with some degree of functional impairment. With abortions occasionally performed up to twenty-four weeks gestation, one can see the conflict within medicine: Fetuses that might be aborted by one group of physicians are aggressively supported as patients by another group.

Physicians who provide abortion services prefer to do early abortions, that is, up to twelve weeks, for several reasons. First, it is generally agreed that, though a fetus may exhibit primitive reflexes before twenty weeks gestation, there is no evidence that the brain and neurological system are developed enough even at twenty-four weeks for the fetus to experience pain. Second, as discussed earlier, second-trimester techniques that might appear to be more humane or to show more respect for the fetus generally entail more danger for the woman. Third, the physicians who are committed to offering abortion procedures are intent on offering the safest procedures for the woman and regard the benefit to the woman as superseding the goal of minimalization of harm to the fetus.

Most recently, the debate over partial birth abortion has presented significant challenges to physicians, other providers of abortion services, and proponents of a woman's right to choose to terminate a pregnancy. While legislation to ban this procedure has been proposed and debated in Congress, in several state legislatures, and finally in the Supreme Court, the vagueness of the definition of partial-birth abortion (which is not a term used by medical professionals), the failure to allow physicians to protect a woman's health after a fetus becomes viable, and the application of the ban before fetal viability has resulted in the failure of these bans to be constitutionally upheld (Annas, 1998).

In March 1995, the first Partial-Birth Abortion Ban Act was introduced in the U.S. Congress to make it a federal crime to perform "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery." In April 1996 President Clinton vetoed the bill because of its failure to include an exception allowing the procedure to prevent serious, adverse health consequences to the mother (Remarks on Returning without Approval to the House of Representatives Partial Birth Abortion Legislation, pp. 643-647); he vetoed a revised bill in October 1997 for the same reason (Message to the House of Representatives Returning without Approval Partial Birth Abortion Legislation, p. 1545).

Over the interim between the two bills, medical organizations took conflicting positions. In contrast with the AMA, which endorsed the federal bill, the ACOG executive board urged the president to veto the bill. The executive board understood the term partial birth abortion to describe a method members of the ACOG would understand as intact dilation and extraction, one method of terminating a pregnancy after sixteen weeks' gestation and specifically involving "1. deliberate dilation of the cervix, usually over a sequence of days; 2. instrumental conversion of the fetus to a footling breech; 3; breech extraction of the body excepting the head; and 4. partial evacuation of the intracranial contents of the living fetus to effect vaginal delivery of dead but otherwise intact fetus" (ACOG p. 2). While the committee could identify no specific circumstance where this method would be the only option to preserve the health of the woman, they stated that "only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision" (ACOG, 1997, p. 3).

Similar laws have since been passed in more than two dozen states and found unconstitutional; the most significant decision was issued by the Supreme Court in a challenge to Nebraska's Partial-Birth Abortion law in the case of Stenberg v. Carhart in 2000 (Annas, 2001). The case involved Dr. Leroy Carhart, a Nebraska physician who sued in federal court to have Nebraska's law declared unconstitutional because it endangered women's lives and was void because of its vagueness in that physicians could not know exactly what procedure was proscribed. Ultimately, the Supreme Court ruled on June 28, 2000, that the Nebraska law and all other laws banning partial birth abortion are unconstitutional. The majority opinion held that the law was unconstitutional for two reasons. First, it did not provide an exception to protect the health of the woman as required by Roe v. Wade. Second, the law imposed an undue burden (as proscribed in Planned Parenthood v. Casey) because it was written so broadly as to ban not only the rarely used dilation and extraction (D&X) procedures but also dilation and evacuation (D&E) so commonly used to terminate pregnancies even early in the second trimester. Ultimately, the Stenberg decision reinforced the important position that decisions regarding how abortions can most safely and satisfactorily be performed should be made by women and their physicians.

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