(Written for Prof. Edner’s Public Policy Making [GOVT364] class at George Mason University.)
Intrauterine cranial decompression abortions, alternatively called ‘intact dilation and extraction (D&X)’ or ‘partial birth’ abortions, are one of the most controversial issues to make their way through the public policy process in years. Some consider the procedure a protected part of a woman’s right to an abortion (under Roe v. Wade), while others consider the procedure a barbaric form of murder.
Usually a D&X abortion (which is the term I will generally use in this work for the procedure) is performed in the latter part of a pregnancy. The pregnant woman’s cervix is dilated and the fetus is partially removed. The surgeon then inserts a sharp object into the back of the fetus’s head, often scissors, and then extracts the fetus’s brain matter through a vacuum tube. The head then contracts and the fetus is removed (D&X Procedure).
It is clear from this description why the procedure is so controversial. Members of the “pro-life” movement, who generally consider a fetus to be a living human being, come to the conclusion that a D&X abortion is a particularly gruesome form of infanticide. Members of the “pro-choice” movement consider any prohibition on a form of abortion—even D&X abortions—to be unconstitutional under the 1973 Roe v. Wade decision, in which the Supreme Court ruled 7-2 that the right to an abortion falls under a constitutional right to privacy (Supreme Court strikes . . . ).
This paper will examine the issues, and potential policy outcomes, of public policy regarding D&X abortions, and more broadly over abortion in general (to provide necessary context).
History of Abortion Law
Previous to 1973, states in the United States were generally free to allow or prohibit abortion procedures as they saw fit. Most states chose to prohibit, or otherwise limit, the controversial procedure. It wasn’t until the late 1960s and early 1970s that California, Hawaii, Alaska, and New York began to relax their laws, allowing abortions in the first trimester of pregnancy (History of Abortion).
In 1973, the U.S. Supreme Court delivered its landmark Roe v. Wade decision on abortion rights. Roe, a pregnant woman, had been prohibited from getting an abortion under the state laws in Texas and sued on the grounds that her right to privacy had been impinged upon by the state prohibition. In this decision, the court ruled that the Texas statute was unconstitutional (ROE v. WADE).
Under the decision, a first trimester abortion is declared a private decision and any limitation thereupon would be a violation of the right to privacy. A second trimester abortion may be limited but only “with regard to the health of the woman.” A third trimester abortion can be made illegal, but must have an exception to save the life of the woman (History of Abortion).
With U.S. government policy toward abortion now constitutionally limited, pro-abortion groups and politicians went so far as to encourage amending the constitution to prohibit abortion. The move toward an amendment never gained enough steam to be successful.
Antiabortion groups continued pressing for limitation on abortion, successfully pushing for parental consent laws (requiring people under the age of 18 to have parental permission to get an abortion) and having such laws declared constitutional by the Supreme Court (Belotti v. Baird II). In more recent times, antiabortion groups have pushed for limitation particularly on the D&X type abortions.
In 2000, it seemed that the pro-choice contingent had won on this issue when a 5-4 decision of the Supreme Court struck down a Nebraska law banning D&X abortion procedures. But the basis of the decision was not the Roe v. Wade decision or the right to privacy, but rather that Nebraska lawmakers had not allowed an exception to preserve the health of the mother. (Supreme Court strikes . . . ).
Bills which would ban D&X abortion procedures at the national level were brought up in 1995 and again in 1997, both times passing under the Republican dominated congress, only to be vetoed by President Clinton (Partial Birth Abortion Bans). A third attempt was made in 2003, this time passing both houses of congress and being signed into law by President Bush. None of the bills presented included a health exemption (Bush signs ban . . . ).
Opponents of the D&X ban claim that conservatives are simply taking incremental steps toward the prohibition of abortion in general. President Bush has not denied this, having said during his campaign that he would not seek a total ban on abortion simply because public opinion did not “yet” support it (Bush signs ban . . . ).
Two major interest groups, representing the two sides, are active in promoting their opinions as to the ethics of D&X procedures, as well as other types of abortions. In favor of a ban on D&X procedures, National Right to Life commended President Bush for signing the recent bill into law. “For years, a terrible form of violence has been directed against children who are inches from birth, while the law looked the other way,” they said in one press release (National Right to Life Comments . . . ). Meanwhile, against the ban, the Planned Parenthood Federation of America said in their own press release, “This unconstitutional law denies women, in consultation with their doctors and families, the right to make decisions about their own health” (Planned Parenthood Applauds . . . ).
The ban will not go into effect immediately—federal judges in Nebraska, New York, and California have ruled that the ban cannot be enforced because it does not include a health exemption (Third federal judge . . . )—and it may never go into effect at all. But, the formation of public policy in this case follows closely the concepts put forth by Anderson. Development of policy toward D&X abortion has been incremental, continuously developing, and adversarial.
The core issue of the abortion debate in general, as well as D&X abortions particularly, is that some people consider an unborn fetus to be a human being, deserving of having its life protected. Likewise, some believe that a fetus is merely a part of a woman’s body and what that woman chooses to do with it is protected by a right to privacy. The question of whether an unborn fetus is ‘life’ is one that governments are not consistent about, let alone able to agree on.
For example, in California—a state that has been in favor of abortions, historically—Scott Peterson is on trial in a high-profile case for two counts of murder, after allegedly killing his wife Laci and their unborn son. It is not uncommon for states to have legalized abortion (determining, de facto, that a fetus is not a life) and yet put people on trial for the murder of an unborn child (although you cannot be murdered if you are not alive).
The back-and-forth development of this policy—including vetoes and attempts to overcome vetoes, court challenges, and congressional wrangling—demonstrates its controversy and the difficultly government has in dealing with these types of “fuzzy” issues.
The government has not been able to reconcile differing views on when life begins, the question of which cannot be determined scientifically or with any certainty. Laws at the federal level regarding abortion have generally failed because of its fractious effect among policy makers.
Most people seem to have an opinion on the abortion issue, but public opinion as a whole remains split. According to a CNN/USA Today/Gallup survey early in 2003, about 38 percent of Americans think abortion should almost always be legal. 18 percent believe abortion should never be legal. 42 percent think that abortion should only be allowed in some circumstances, like to save the life of the mother. These numbers have remained nearly unchanged for more than 15 years (30 years . . . ).
The relative stability of public opinion shows that, despite the strong arguments made by proponents of each side, nobody is being convinced. Save a few notable changes of opinion (for example, “Roe”—actually Norma McCorvey—who’s case established abortion rights nationwide, is now a supporter of the pro-life movement), both supporters and opponents tend to be particularly stubborn on this issue (30 years . . . ).
Furthermore, the issue is extremely divisive politically. While D&X abortions are relatively rare, and moves to outlaw it do not otherwise limit abortion rights, pro-choice groups and politicians are quick to decry it as a first step toward outlawing abortion all together and as a horrible invasion of privacy rights. D&X abortions are usually performed late in pregnancy, and even under the Roe v. Wade decision it is therefore constitutional to limit them (with a ‘life of the mother’ exception).
With the issue of abortion being such a divisive and controversial issue, it is unlikely that the non-incremental policy goals of either side of the issue will be met any time in the near future. The prohibition of D&X type abortions is an incremental change, despite the “sky is falling” attitude of abortion proponents.
The ultimate hope of the pro-choice movement is that women have unfettered, easy access to abortions should they desire them. The ultimate hope of the pro-life movement is that abortions, in general, be prohibited. With both sides claiming high ethical or moral ground and viewing the other as attempting to limit their ethical crusade, it is unlikely that consensus could form for any type of major policy change.
It was only through the Supreme Court that the federal government could originally make any policy at all on abortion, previously it had been left to the states and was—and remains today—almost an ‘untouchable’ issue. No matter which side a politician takes, he or she risks angering a substantial number of their constituents.
With the number “completely in favor” and “completely against” nearly the same percentage of the population, there is no clear stance that is most advantageous from a political standpoint. The fear of alienation leads elected bodies—such as the congress—to tread lightly on the abortion issue, on the rare occasion that they tread it at all.
In the case of D&X abortions, the procedure is considered gruesome enough that some pro-choice individuals and politicians are willing to allow its prohibition even against their normally pro-abortion views. This allowed the prohibition to move through congress, while a blanket abortion ban would likely have died in committee.
Because the recently passed ‘Partial Birth’ D&X abortion ban does not include an exception for the health of the mother, it is unclear whether the ban will ever end up going into effect. It is possible that court cases, perhaps even reaching the Supreme Court, will strike down the law. However, the Supreme Court is currently nearly evenly-split between political conservatives (generally pro-life) and political liberals (generally pro-choice), and it cannot be determined with certainty which way the court would rule.
But regardless of the outcome of this particular D&X abortion ban, there is no question that a similar ban including a health exemption would be upheld in accordance with the Roe v. Wade and subsequent decisions which allow limitation on abortions in the third trimester. In-an-of-itself, there is nothing unconstitutional about a general ban on D&X type abortions so long as the law meets requirements set in previous case law.
D&X abortion prohibitions have run into trouble in the courts because of a lack of a health exemption, and the recent federal law was put on hold for the same reasons. Other issues of constitutionality, public opinion, interest group power, legal inconsistency, and ethical opinions make the study of D&X abortion policy—and abortion policy in general—quite interesting.
The issue is so controversial and so divisive that the government has been ineffective at any major, non-incremental changes to abortion policy, with the notable exception of the 1973 Roe v. Wade decision which came through judicial rather than legislative channels. With public opinion virtually unchanged for more than 15 years, this status quo is unlikely to change.
Policy changes with regard to abortion are likely to come at an irregular rate, going back-and-forth between tighter limitation and more abortion freedom depending on the political party in control of the White House and congress. Policy changes that do occur are likely to be incremental and not earth-shattering, such as the D&X abortion ban.
Even these incremental changes, however, are likely to be met with much resistance from proponents of the opposite view, and court challenges are inevitable. The success of abortion-related initiatives depends on hundreds of variables, not the least of which being the political winds in congress, the White House, and the Supreme Court. Barring any sudden change in public opinion, the abortion issue—including the D&X abortion issue—is likely to remain difficult, divisive, and adversarial.
30 years after ruling, ambiguity, anxiety surround abortion debate. CNN.com. Posted 1/22/2003. Retrieved 12/11/2003.
Bush signs ban on late-term abortion. Associated Press. Retrieved 11/13/2003 (via CNN.com)
D&X Procedure. ReligiousTolerance.org. Retrieved 11/13/2003.
History of Abortion. The Hope Clinic for Women, Ltd. Retrieved 12/11/2003.
National Right to Life Comments on Court Orders and President Bush’s Statement; Issues Memo Distilling and Linking Key Documentation on Disputed Issues Regarding Partial-Birth Abortion. National Right to Life. Retrieved 11/13/2003.
Partial Birth Abortion Bans. AbortionFacts.com. Retrieved 11/13/2003.
Planned Parenthood Applauds Court’s Action to Block Unconstitutional Abortion Ban. Planned Parenthood Foundation of America. Retrieved 11/13/2003.
ROE v. WADE, 410 U.S. 113 (1973). United States Supreme Court. Retrieved 11/13/2003 (via FindLaw.com).
Supreme Court strikes down Nebraska antiabortion law. CNN.com. Posted 06/28/2000. Retrieved 11/13/2003.
Third federal judge halts abortion ban. CNN.com. Posted 11/06/2003. Retrieved 11/13/2003.