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Partial-Birth ConfusionThe Supreme Court puts doctors in the hot seat.

By Emily Bazelon
Posted Friday, June 1, 2007, at 2:02 PM ET
U.S. Supreme Court Justice Anthony Kennedy. Click image to expand.

Last week, the New England Journal of Medicine went into mourning over the Supreme Court's decision in April to uphold a federal ban on "partial-birth" abortion. Four authors weighed in, none of them happily. They scolded the court for joining Congress in "practicing medicine without a license." They worried that the decision has created an "intimidating environment" for late-term abortions generally and will have a "chilling effect" on doctors' decisions about performing the procedures.

Yet in his majority opinion upholding the federal ban, Justice Anthony Kennedy emphasized that the federal ban only prohibits a doctor from intentionally performing a so-called "intact dilation and extraction" in which the fetus is extracted whole. And according to the estimate most often cited, including by the recent New England Journal articles, the court's decision thus directly involves only a tiny percentage of the 1.3 million abortions that take place in the United States each year—.17 percent, or 2,200, performed annually by only 30 doctors. "The Act excludes most D&Es in which the fetus is removed in pieces, not intact," Kennedy wrote. He made a similar point to support his argument that the law doesn't impose an undue burden on women: "Alternatives are available to the procedure. As we have noted, the Act does not proscribe D&E."

So, if we're only talking about 30 doctors and a tiny percentage of abortions overall, and not second-trimester abortions in general, what are the doctors so worried about? Why the New England Journal's hue and cry? Maybe it's an overreaction: Doctors never like being interfered with. (What profession does?) And as supporters of abortion rights, these particular authors may be especially outraged about a decision that curtails their rights, even if its practical reach is limited. Perhaps the objections here are of the "what next?" variety, the fear that the current ban is merely the thin edge of a wedge.

But upon further scrutiny, these dismissals fall away. This ban comes with harsh, even criminal, penalties, and the lines between different kinds of late-term abortion procedures are inevitably blurry. So, doctors can be forgiven and then some for worrying about broader-brush applications by zealous prosecutors. Kennedy's reassurances (if that's what he intended) don't add up to much.

Start with the blurry lines. Kennedy referred to an "intact D&E," although doctors usually call the procedure Congress outlawed a "D&X" (or dilation and extraction). If that's not confusing enough, the law itself, unhelpfully, used neither term. So, doctors interpreting the decision begin with a terminology headache.

Also, in saying that the ban excludes "most D&Es in which the fetus is removed in pieces," Kennedy implied that there are some classes of nonintact D&Es to which it does apply. Figuring out which is which involves delving into the awful particulars of collapsed skulls and dismembered limbs that made this legislation such a boon to abortion opponents in the first place. I'm not even going to try. The bottom line is that it's the rare doctor who will want to risk parsing Kennedy wrongly by performing a procedure that seems to approach a legal gray area. Especially because the penalty for error is two years in prison, a fine of up to $250,000, and exposure to civil damages.

In light of all this, the oft-quoted claim that the law directly affects only .17 percent of abortions may be a serious undercount. To begin with, the estimate is a best guess: It comes from the Guttmacher Institute, a research organization, rather than from an official statistics-gathering government agency. It's also a few years old, and in the meantime, medical schools have apparently been teaching D&X procedures more often to more students, not less (though Congress refused to acknowledge this in the "findings of fact" it made in enacting the ban). Add in the defensive stance of a lot of doctors who don't want to tiptoe anywhere close to the line of illegality, and you come up with "hundreds" who will change their practices in response to this Supreme Court decision, says Talcott Camp, a lawyer for the ACLU.

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Emily Bazelon is a Slate senior editor.
Photograph of U.S. Supreme Court Justice Anthony Kennedy by Chip Somodevilla/Getty Images.
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