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

By Emily BazelonPosted Friday, June 1, 2007, at 2:02 PM ET

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In 1998, Atul Gawande exposed misleading descriptions of partial-birth abortions propagated by pro-life advocates. Paul Freedman measured the power of an unenforceable abortion ban. Dahlia Lithwick asked if judges legislating abortion are the country's new doctors and chronicled the Supreme Court's attempts to understand partial-birth abortion. William Saletan called the ban "arrogant," uncovered myths about partial-birth abortion, and predicted the effects of ultrasound on the abortion debate.

What will these doctors do differently? A variety of subtle things, Camp says, and just one obvious one: They'll inject the fetus with medicine to stop its heart before the abortion takes place. Doctors will practice defensively, which they resent, because they think they should be thinking about their patients and not their legal exposure. Will they perform fewer late-term abortions? Some insist not. "I don't think this is going to change the total number of abortion procedures done in the U.S.," says Michael F. Greene, a professor of obstetrics of Harvard and the author of one of the New England Journal articles about the Supreme Court's decision. On the other hand, it's not hard to imagine some doctors backing away from late-term D&Es, or fewer medical students going on to perform them, leaving women with fewer places to go for a procedure that's already relatively hard to get.

Maybe that's what Congress, and Kennedy's majority, had in mind all along. But as Justice Ruth Bader Ginsburg pointed out in her dissent, "the law saves not a single fetus from destruction, for it targets only a method of performing abortion" (her italics). Because neither the law nor the court was perfectly clear about the parameters of that method, it's doctors who are left to bear the risk of this confusion or reduce their patients' options by playing it extra safe.

The best way to test the court's decision—and perhaps to prevent it from having a wider than necessary application—would be for a doctor to perform a D&X, or a nonintact D&E that's right up to the legal line, in a situation in which she believes that to be in her patient's best interests. Then she could be charged with violating the ban and try to defend herself, and eventually, a court would have to wade into the territory left unsettled by the Supreme Court's decision. Kennedy left the door open a crack to just such a challenge. And the law itself makes an exception when the woman's life—though not her health—is at risk. One of the New England Journal of Medicine authors, George Annas, proposes that brave doctors could act as "conscientious objectors" if breaking the law is indeed what medical ethics demands.

You can imagine the questions a prosecutor would ask that doctor: "Were you sure that the woman's life rather than just her health was at stake? How sure? Did you perform the D&X that Congress banned, or something more like a legal D&E?" Maybe a real doctor will put him- or herself through such an interrogation, in the interest of testing the outer limits of this ban. But that's expecting a lot. How to put your personal liberty at risk isn't a class they teach in med school.