You first claimed that it was impossible that women were being asked , against their own wishes, to carry their dead babies around now you feel it is inconsequential. Which is it? Laws effect society beyond just what is written or what words are used, that is the point we are making. By referring to this type of abortion without the use of a medical term or procedure, by not allowing a consideration for health, by not acknowledging the importance of the child's viability in these procedures this creates a climate of controversy that then creates a reality of women finding it difficult to fulfill their medical needs. This was not a story of a woman and her doctor as in single, she sought the services of many doctors and many hospitals. You still have yet to read the link I provided originally, it is awfully rude to keep addressing my argument when you have still not even considered it, that told of another story of a woman who had only two days to make the decision and had to have the procedure done outside her county as her hospital required an ethics committee to decide if the procedure could be performed by them.

You also act as if this compares to some victimless crime of ice cream handling, I am glad all of this is so trivial for you, but this issue deals with circumstances far more worrying and serious then how one is allowed to transport their frozen delights. It is an issue of reproductive rights, health, privacy, equality and parental rights. Do you think this ban is likely to never be enforced? I don't.

Here is yet one more story about how this procedure often takes place and how it is not scenarios of evil, hateful and selfish women purposefully killing their young...and how yes even men have had to face this decision.
Nothing is stopping the bleeding. There seems to be nothing they can do. They talk about trying some drugs, but then they decide things are going too fast to give time to let them work. So that leaves only surgery as a possibility. Surgery means hosing her out. It means killing the baby. So obviously, we look into other options. Only now, my wife is so out of it, from blood loss, from the painkillers, that the doctor said she is no longer able to legally consent. Now I’m handed a clipboard. On it is consent to basically give my wife an abortion and kill our future child. And it is all on me, my decision, mine alone. Something I never thought I’d ever face, ever have to deal with. Made worse by being a decision of either kill the baby or potentially watch both my wife and the baby die. The doctors did not say at this point that it was absolutely necessary. Maybe more blood could be transfused in. Maybe she wasn’t dilated - they hadn’t figured it out yet. Still too much blood. So then there I was, facing the sort of choice that you usually see only in hypotheticals in ethics and philosophy classes. Only it was real. It was my wife. And I didn’t have exactly a lot of time to think about it. It was just me and the clipboard. An empty line there, marked for my signature. My wife bleeding right next to me. The ultrasound of my baby, and its heartbeat, fresh in my mind from minutes before. I cannot begin to describe how I felt at that moment. One cannot know until you are in it. I won’t even try. I hope I never feel that way again.
link

It should be noted that this couple had an abortion at just over ten weeks. There is no discussion of the type of abortion.

In one of the previous stories you posted, the couple had a late term abortion - at about 24 weeks - that would still be legal under this ban.

Abortion is an emotional decision and a very difficult decision for everyone involved, if that's what you're trying to convey, fine... but it's not truly relevant to this particular issue, is it? I don't see how these two stories have any relevance to this ban? This ban does not ban all abortions... it doesn't even come close to banning the majority of abortions. What purpose does posting these stories serve? As far as I can tell, most of these people had abortions that are unaffected by this law.

Is it that you feel that there should be absolutely no restrictions on abortion? If so, then you go farther than even Roe.

I think I addressed that story. I think I said something along the lines of "She had the abortion" to it. I may have confused it with another story. You and Lesly are having the exact same conversation with me I will admit I have confused the two of you to some extent. This is due to reading this at work. I honestly apologize.

My problem with your specific debate with me is that you keep bringing up stories that have nothing to do with the PBA Act. They are each very sad, sometimes horrific tales of things that can go wrong with pregnancy and with the decisions that sometimes must be made... unfortunately they have nothing to do with PBAs!

I think it does though, particularly here:

In this particular instance the speaker is referring to a 10 week old fetus. But what if he were referring to a more advanced stage of development covered under this ban? Scoffers just tsk, tsk it away with "well, if the woman's life is in jeopardy it doesn't apply...." Well, how would you like to be the deciding physician in such a case? Do you wait until there is no possibility this woman will live unless you perform this procedure? How will that stand up to court inspection later? Well, you'd better be damned sure.

In such cases the benefit of the doubt used to go to the physicians. It was assumed that they had the best interest of their patients in mind, and if there was a doubt the jury would decide in a malpractice suit. Now there is an extra layer in the form of criminal offense, and the potential punishment is a prison term if he/she gets it wrong. And that might be the case even if the fetus in question has no brain. On the other hand, the doctor likely won't go to prison for a crime if both the woman and child die because he was loath to perform the procedure. You honestly don't see any potential problems here?

I want it known that while I disagree with you it's because I have the feeling that people will do "The Right Thing" and not go suing doctors over borderline cases. I also think it is important that people like you don't trust that anyone will EVER do "The Right Thing" and question this sort of ruling.

So while I see where you're coming from I just don't see how it could ever play out.

"The doctor did not say at this point that [an abortion] was absolutely necessary." And at 10 weeks, regardless of whether the doctor felt it was necessary or not, the woman could still have an abortion. This was the choice of whether to abort or not to abort... not the decision to use one procedure of abortion over another procedure.



I don't know. Do you? It is after all a completely different scenario, isn't it? Which is why I stated that it was irrelevant to this particular law. Would a doctor, dealing with this exact situation at a more advanced stage of fetal development tell the husband that an abortion isn't absolutely necessary? I don't know. The doctor might say that an abortion is not absolutely necessary to save the mother's life... if she died, I'd say a malpractice suit was in order. Likewise, if a doctor said that an abortion wasn't absolutely necessary in order to protect the woman's health and she got seriously ill as a result of not having the abortion, I'd say that a malpractice suit was in order.

The doctor might say that an abortion is absolutely necessary to save the mother's life. He might say that an abortion is absolutely necessary in order to protect the mother's health. Either way, an abortion could still be legally performed at the more advanced stage of development covered under this ban without fear of prosecution.

What couldn't be performed under this ban is this particular procedure done such that the fetus intentionally reaches these particular anatomical markers during delivery before the overt act of killing the living fetus occurs. Basically saying that if you intentionally deliver a living fetus more than halfway out of the mother's body before you perform the overt act of killing it, you have committed a crime.

A standard D&E could still be performed or the fetus could be killed before the procedure defined in the ban was performed (as was the case in another story provided by bucket). There are still options for performing an abortion available at this later stage in development covered under this ban.



This would mean that there would always be a constitutional right to perform a procedure that the physician feels is the safest for the mother. Would that mean that the doctor could fully deliver the living fetus and then perform the overt act of killing it, because it seems to me that such a procedure would certainly be the safest for the mother?

Even the respondents in this case did not feel this was true.



I understand that this law effectively prohibits all D&X procedures (the breech presentation) - unless it is absolutely clear that the morther's life is in mortal peril - via a chilling effect on the physician regarding possible criminal prosecution. I understand that. A doctor may not choose to do this particular procedure at all for fear that it might be construed that the fetus reached that particular anatomical marker intentionally - even though it didn't.

But, if the doctor intends to perform a standard D&E... not an intact D&E... or if the doctor performs a procedure that kills the fetus in utero before performing this procedure, there is no fear of prosecution. To imply that there would be is ridiculous. This is a very specific procedure that the doctor would have to intentionally undertake in order to violate the law.

Hence the vagueness issue doctors bring up. A politically loaded term like PBA may get votes, but it isn’t specific enough to practically inform doctors in real life situations.


The correct answer, as far as I know, is it depends.

Can you cite where it says obstruction occurs at the abdomen? I admit I haven’t read oral arguments because for one thing, Dahlia Lithwick’s report of oral argument describes what we see going on here. SCOTUS was trying to figure out which procedure did what. I stick to the district court’s opinion. The district court is the fact-finding and law-applying trial court at the federal level and where you’ll find the most coherent information. Oral arguments can give insight into what both sides are trying to accomplish and how, but the lawyers’ goals during this phase is persuading the Court.

By saying it depends I mean how many weeks the fetus is along and other circumstances. Women’s bodies are not identical in more ways than one. The cervixes of different women will dilate at different rates if the doctor induces birth for the purpose of delivering a live fetus. The same thing occurs during “PBA”. Paraphrasing the district court (p. 116), a fetus under 20 weeks gestation is likely to dismember or be torn apart in the case of breech extraction, depending on cervical dilation. General and local anesthesia relaxes the cervix/uterine muscles and complicates things. Intact D&Es “minimize the risk of trauma to the maternal tissues, including the uterus and cervix”. Compressing the skull is necessary if it is “lodged at the cervical os” or if the fetal head is already enlarged due to an abnormality and can’t pass. Some expectant parents also prefer intact D&E to have a funeral, others want to make sure the ultrasound wasn’t lying and see chromosomal abnormalities with their own eyes. (I looked in vain for an example of the latter I read in a women's magazine. The fetus had a rare, severe trisomy abnormality and the woman refused D&C to look upon a head missing its lower face.)

The choice between D&E and intact D&E depends on cervical dilation and how close the cervix comes to the vagina. To my understanding (and I am by no means an expert) the skull in a vertex head-first position is collapsed “behind” the cervix, not through it, because the head is usually the biggest obstruction. One doctor testified

Dr. Knorr would consider a “delivery” to include the situation in which the fetus is in a vertex position and the fetal head comes outside the body of the mother. In such a case, Dr. Knorr would not deem it appropriate to kill the fetus and he would “do everything in [his] power to keep that fetus alive if it is resuscitatable.”

In the case you brought up, the abdomen presenting an obstruction, I would assume doctors collapse the body twice. Doctors tend to grab whichever part first presents itself (which often depends on the gestational period) to avoid passing too many instruments in and out of the uterine cavity, risk infection, and/or injuring the woman’s tissue and have to staunch internal bleeding on top of evacuating the uterus.

The common thread in D&E seems to be avoiding risk of infection by emptying the uterus as quickly as possible.


Once again, not having read oral arguments, I assume the respondent was arguing against the ban on grounds of vagueness.

Dr. Westhoff testified that for any fetal part that is too large to pass through the cervix, including the fetal head, she reduces the diameter of the part by severing, crushing, or collapsing it. Dr. Westhoff must crush or collapse the fetal head in the vast majority of D&Es.


I don’t think your impression is correct. But let’s say it is for a moment. Do you feel the same about a breech presentation? If not, why not?


Well, I’m sorry, but if the state (Congress?) had an interest in preventing infanticide the Senate would not sign off the ban with

(1) the decision of the Supreme Court in Roe v. Wade was appropriate and secures an important constitutional right; and
(2) such decision should not be overturned.

I continue failing to see how an abortion method defines infanticide. Questions of viability, fetal abnormality and consideration to women's health are inescapable.

Yes, the doctor could remove the fetus in parts...a much more dangerous procedure for the mother..and escape prosecution. Gee, what am I worried about anyway? An aunt of mine in Italy was paralyzed from the waist down and eventually died after years of pain and complications because a doctor didn't remove all of the placental fragments from an otherwise normal delivery...But you're right a much more dangerous and life-threatening procedure that cuts up the fetus is in order, ordained by the federal government.

Let the cards lie as they may. I'm simply being ridiculous to even care. I doubt I'd ever be in that position. And all of my offspring are boys afterall, thank God.

I lost my entire response and have to retype... ugh! Okay... here we go... take 2.



Well, but there is no vagueness regarding what this law prohibits. And it is very specific enough to inform doctors in real life situations. Do not intentionally perform a D&E where the entire fetal head is outside of the woman's body before you perform the overt act that will kill the fetus. Do not intentionally perform a D&X where the fetal trunk is outside of the woman's body past the naval. Seems pretty specific to me that procedures that do not intentionally match these very specific descriptions are not prohibited under the ban? How does that not give specific enough instruction to a doctor in a real life situation? If the procedure is not intended to deliver the baby past those anatomical markers, it is not prohibited.

Can you give me an example that would indicate that this isn't specific enough?



Okay... I'm reading further...



To be clear, it says obstruction is not the head.





In the case of the vertex delivery as described by Dr. Knorr and the ban, I would agree. It seems to me that in the case of such a procedure, collapsing the skull would only serve to kill the fetus and not facilitate delivery because the head is no longer an obstacle when it is outside of the woman's body.

As far as preferance for a funeral, I don't think that describes a medical nessecity... but rather a preference. As such, I can't see how such a preference could render the ban unconstitutional. Nor should the preference for medical study render the ban unconstitutional. Would you agree?



How much risk is allowable before it becomes substantial or significant risk? Surgery has inherent risks... the mere existence of risk shouldn't render the ban unconstitutional, would you agree?



But how is it vague in regards to vertex presentation?



The fetal head can't possibly be outside the woman's body in this example... this would mean that the vast majority of vertex D&E's are not prohibted under the ban.



If you read furth in that paragraph I posted, you'd see this:



But, considering this discussion, I may not be so solid on that last.



Well, is complete delivery of a living fetus followed by the overt act of killing the fetus illegal? Isn't this why when a non-viable fetus is completely delivered, the doctor's either do what they can to keep the fetus alive or simply allow the fetus to die? They either overtly act to save the fetus or, through, inaction allow the fetus to die but they perform no overt act to kill the fetus.



Well, if the alternative procedures would be life-threatening for the woman, then the banned procedure would be necessary in order to save the woman's life, wouldn't it? And would therefore not be prohibited, right? Perhaps, I'm misunderstanding you.



Huh?

Not necessarily. It depends on what the court decides is a justifiable risk to life. Childbirth itself is inherently dangerous. As it stands now, from what I've read, the more dangerous procedure is the legal one, the less dangerous procedure has been banned under certain conditions. I fail to see what has been gained by this legislation...other than a likely (I'd say inevitable) decrease in the safer procedure and increase in the more dangerous one.

If I were the attending physician I don't think I would perform the intact D&E under any conditions, for fear of a prison sentence. Maternal death or disability could be explained away if the (more dangerous) procedure was performed correctly but complications occured. At worst, the physician would be covered by malpractice insurance. On the other hand, if he/she couldn't absolutely justify an intact D&E procedure and prove that the woman's health was in mortal jeopardy, even if the fetus was brainless, to prison he/she could be going. I think that's the third time I've posted the same thing. I believe we are arguing in circles.



I'm glad that I will never (unless I have or adopt another baby) have to worry about a daughter who is faced with this. How far should the government go to protect a brainless fetus? Honestly?

Don't think the government is involved enough in the fetus? Anecdotal example, a person covered by military medicine must go through pregnancy and childcare classes before she is even able to receive medical care. It doesn't matter whether it's the first child or the tenth, a three hour mandatory class is necessary so the woman can sit there and learn that she must take her vitamins. The classes are hard to schedule. In Japan they offer them about once a month, and a friend who was pregnant with her fifth child had to cancel twice. Obviously, she had four other children to watch and her husband was too busy at work to watch them so she could attend the class in the afternoon. She had also already attended this class four previous times for her four previous pregnanacies. Following the second cancellation, a letter was sent to his office indicating that she had to take a course for parental training (in addition to the pregnancy class of course)...she was deemed a negligent mother. Oh, yes, the government cares about the fetus. Like I said, so glad I have boys.

Okay, this cements it for me. Here is a story that does relate to the ban, does involve significant health risk and anencephaly.

'Partial-birth' cases test abortion rights' limits

Thanks, Mrs. Pigpen... I don't think I would've found this had you not brought up anencephaly.

Now, I still don't believe this law is vague or overbroad... it clearly isn't... it is very specific and that the ban isn't unconstitutional on those grounds. But, as I stated earlier, I do believe that there needs to be a physical health exception and that the ban is unconstitutional because of the lack of one. I also believe that the ban needs to be limited to viable fetuses.

I also agree with droop in that it should be a physical health exception - and it should be that specific.

I've never agreed with PB abortions unless there is a serious medical need for it. If you can't decide to have an abortion within three MONTHS you should look at adoption as an option if you don't want to raise a child.

that being said, about only eleven percent total of all abortions occur after the 12th week (about 3 months) 89 occur before three months. 4% happen between the 16th & 20th week, and 1% of all abortions (16,450/yr.) happen after the 20th week of pregnancy. ([url=http://www.abortionno.org/Resources/fastfacts.html]source[/url) granted 16,450/yr is quite a bit.

but I do think late term/partial birth abortions shouldn't be allowed unless deemed absolutely necessary

So do you feel that this ban should have a health exception? Do you feel that it is unconstitutional because of a lack of it?


Here is a story that does relate to the ban, does involve significant health risk and anencephaly.

'Partial-birth' cases test abortion rights' limits

Thanks, Mrs. Pigpen... I don't think I would've found this had you not brought up anencephaly.

Now, I still don't believe this law is vague or overbroad... it clearly isn't... it is very specific and that the ban isn't unconstitutional on those grounds. But, as I stated earlier, I do believe that there needs to be a physical health exception and if the two issues vagueness/overbreadth and health exception can be procedurally separated in the type of challenge presented, that the ban is unconstitutional because of the lack of one. That's the next question, then... can the Court treat the two issues as completely separate in a facial challenge or is the lack of a health exception part of the facial challenge?

I also agree with droop in that it should be a significant physical health exception - and it should be that specific.

Before we all go gaga over that story it's got some issues. First the woman had the abortion. Second the fetus was DOA anf although her doctor seemed to feel that the procedure was going to be illegal WHEN the PBA Act was passed it's tough to say that it would have ben. The baby has a fatal health issue and is essentially DOA. While the article correctly surmises this would be a good case to test the boundries of the PBA Act which (as Mrs Pigpen and I have discussed in this thread) is written to be somewhat vauge.

First, yes, she did... the procedure hadn't been banned yet.



Second, it's not tough... the fetus would be alive when the overt act was performed.

Third, you're wrong... just because the fetus's condition is fatal, doesn't mean it's dead when the overt act described in the act is performed. A fetus with anencephaly can survive for some time out of the womb. As has been explained, it is legally considered alive... a living fetus... it has a brain stem that functions. Some of these fetus's are carried to birth and kept alive to use for organ donation.

I think, however, that there is no skull to speak of in most cases that might be an obstacle to facilitating the delivery of the fetus. As such the overt act would solely be to kill the fetus... am I right about that? That's something I hadn't thought of before.

of course the ban should have a health exception. what I want to know is how many people getting PBAs waited for 3 months before getting that abortion. not because it was needed but the parents decided not to keep the kid.

I don't think there are any legal cases of the type you are describing, because the states regulate late-term abortions and doubt that any state would permit an elective late-term abortion on a whim. Furthermore, it would require a trained doctor willing to perform abortion on such a whim and it's hard enough to find one even capable and willing to perform the procedure on a dead or brainless fetus.

That is the misconception that fuels this sort debate, and it comes up again and again and again. It's pretty maddening. If they would even change this legislation to add the word "viable", it wouldn't bother me much. Then at least we are speaking of two human beings with conflict health interests. But as written, a woman's health could be in jeopardy over a brainless fetus. I cannot understand anyone supporting this bill as it is written. Nothing positive can come of it, because it does not eliminate late term abortions, but makes them more dangerous. For what exactly? Because it would ruin the lives of so few it doesn't matter? Okay, let's sterilize anyone with a sixth toe...good for population control and it would apply to so few it shouldn't matter. GAH!

No I don't think there should be no restrictions.

I have now stated this several times that my argument is based on my belief that creating this sort of uncertain language and vague descriptions causes further controversy to an already controversial subject. I am not only discussing or arguing what is written in the legislation because as I have already stated I felt it's effects were far more overreaching. Some states or areas in the US have only one abortion clinic even in operation, yet abortion is legal. Try getting an abortion in South Dakota for example, it is not as easy or readily available regardless of what the SC says or what is legal or what is not banned. I wish someone would address this fact, rather than keep pointing to what the legislation does or does not say.
The procedure we are currently discussing is only practiced by a small handful of doctors around the US.

I was also trying to give men an example where this decision is also yours to make, and that such decisions are not as often as they are portrayed by those who oppose reproductive rights.

I also have to wonder how this legislation can be enforced exactly? It would seem to me just the act of enforcing such a law would be unconstitutional. As I have already argued this issue encompasses many constitutional rights in my mind, one being privacy. There has already been rulings regarding this issue and I wish those who support this ban would explain how they believe it can be properly enforced without further infringement on women's rights? It's not like our govt hasn't already tried.
A Federal Appeals Court Bars Release of "Partial Birth" Abortion Records

1. Did the Supreme Court decide correctly?

The SCOTUS upheld a federal law that goes beyond federal authority, as described in the Consitution of the United States. The regulation of medical practices should be in the states' authority. The justifications given for this overly liberal interpretation of the Constitution don't hold water, so yes, the SCOTUS screwed up big time. It has allowed the federal government to stick its fat, uh, nose between the states and their citizens, and between doctors and their patients. I guess the up side here is that the decision only discriminates against women in their child-bearing years and doctors (notice the dripping sarcasm). Oh, but that's okay. It's only a handful.

2. What are the implications for future decisions regarding abortion law?

More federal regulation of abortion will be forthcoming unless the voters of this nation don't want this to happen. In addition, the movement away from states' authority to federal authority is hereby encouraged, as this decision has set a precedent. This could justify things like federal gun regulation and the eventual confiscation of arms. Or it might make it impossible for states to control education at all. Once the Constitution is compromised, all sorts of things can happen, not any of it good.

As the federal government seizes more power, as it probably will, expect to have individual freedoms curtailed to the point of being nice ideas but not part of reality. My prediction is that if the voters don't turn this ship around, we're heading into ugly waters. Being as we are talking about the SCOTUS, we are already smack dab in the middle of ugly waters, so get used to it.

It's hard to fire SCOTUS justices, even when they perform at this level of political hackery. By political hackery, I mean responding to personal feelings rather than reading the Constitution. Or is it responding to political pressure? Sure smells that way, especially as it comes on the tails of another issue regarding justices, politics and paybacks.

We can debate all we want whether abortion should be allowed or not. But that is not the question. The question is whether the federal government has the authority to tell us what to do or not to do regarding medical procedures. At the finer level of things, a side question is implied: Do you have the authority to tell doctors and patients what to do and what not to do? Actually, unless you're directly involved, no. And then, even if directly involved, neither doctor nor patient is required to listen to your opinion. It's not your life and it's not your profession. Exceptions are here with expert medical colleagues and immediate family.

Fundamentally, certain people of particular persuasions have sacrificed the entire country for the sake of tender feelings misplaced and transformed into self-righteous indignation in an attempt to create a better world. What's bad is that enough of these types have made it to the SCOTUS.

Well, maybe this is just a little blip on the screen. Only a few women and a few doctors are affected. Maybe it's just paying a political debt to those who made the appointments. Maybe we're still okay. But I don't think so.

I want to make clear before I type this... I AM FOR CHOICE. I AM FOR CHOICE. Making me PRO CHOICE. There are situations that warrant abortions that go beyond a mother's health, rape, incest - etc. I am for a woman's right to make a choice.

Without the Religious baggage that often gets pulled into this and without hysterical "Think of the children!" bleats there is a point when we as a society must ALSO consider the "rights" of a child. Which brings us to the sticky wicket of; when is a fetus a baby? I don't suspect that answer will ever come on an internet debate board.

The problem is the extremists on each side. The Abortion On Demand group, and the Every Sperm Is Sacred group. They exist. They push their agendas. They have lobbists and while we may disregard them pollsters and politicos do not there for we must at the very least monitor them. Meanwhile the cooler heads must come to some kind of recognition of "life". Many of us on this very board have it in our heads that when a fetus can live out of the womb it's a done deal. That kid is an American imbued with the unalieable rights our Founding Fathers spoke of in so many documents. (snark) Others feel that since a child would die without a caregiver they are fair game until (I guess) they're about 9. (/snark)

Until that line is drawn this debate will never be resolved in a remotely satisfactory way to anyone.

But what makes it vague and uncertain? It seems to be very specific and clear. You do not perform this particular procedure unless it is necessary in order to save the woman's life... it is illegal. It then goes on to describe the proscribed procedure very specifically. So, I don't understand how it is vague or uncertain language.

It very clearly describes two variations on a D&E procedure both of which involve the removal of the fetus out side of the woman's body to certain very specific anatomical markers before an overt act is performed to kill the fetus. It doesn't prohibit standard D&E's or any other type of abortion procedure that doesn't involve the fetus reaching those specific anatomical markers before the overt act to kill the fetus is performed.



The fact that certain states do not have the facilities or the personnel to perform abortions has absolutely nothing to do with this particular legislation. Did they have the facilities and personnel before 2003?



Don't doctors have to get their surgical procedure's approved by superiors? Isn't there more than just the doctor and the woman in the room during the surgery? What keeps doctors from violating current bans on late term abortions?



Should there always be a constitutional right to perform a medical procedure that the physician feels is the safest?

I understand what the legislation says and it is in my opinion intentionally vague. It never refers to any medical procedure by name, but instead refers to a procedure using a politically invented name. It never sets an age or definement for fetal development. It never discusses fetal viability and it never mentions a woman's health and her rights to the safest medical procedure available. Why? Why are these subjects not addressed? Why is the legislation not using the medical terms, defining the gestational age and viability and recognizing a woman's right to health? You claim it is so direct and specific where are these specifics exactly? And why are they not relevant? I would imagine they would be relevent to the decision of the families and the doctors in these situations.

I also have to wonder why you think it is so perfectly acceptable that the lesser of the safest forms of abortion used in late term pregnancies is a good enough of a compromise , especially when that compromise is a woman's health. Do you base this on your own personal sensibilities? Or do you have some other indication as to why you feel placing a woman's health at an even greater jeopardy is an acceptable thing for our government to do?




I am loosing my patience explaining my position to you over and over. For those of us who feel reproductive rights and equal protection under the law for our health and livelihood are important subjects politically, this is but one piece in that issue. It is not independent of it, it is not a singular event that will never find itself influencing and further guiding our (our being women) future standing in this country. I also find it to be intellectual dishonest for you to pretend like this subject was not controversial pre-2003.




Is this legislation asking for self regulation of the medical industry? I hadn't read that myself, what I read was that our govt was going to now seek criminal punishment for any doctor who performs a non- medically defined act on a undefined gestation for undefined reasons of fetal development or viability regardless of their patients' risk to injury, health or safety.

I also read and then shared a case in which our current government did seek women's medical records in their "defense of the federal Partial Birth Abortion Ban Act " which was found by a federal court to in fact be an unconstitutional act and was a violation of privacy. Are you going to address this concern of not only mine but our judiciary? How will our govt enforce this law?

It doesn't have to refer to a specific procedure by name. It very specifically draws a line beyond which you can't perform an overt act that kills the fetus. This leaves it open to prohibiting any procedure in which the fetus reaches those particular anatomical markers before that overt act was committed. And that is the intent of the law. Currently, there are only two variations of a particular procedure that reach these anatomical markers - an intact D&X and an intact D&E with a vertex presentation. If they named a procedure and only restricted that particular procedure, the procedure would be modified and renamed and the law would not apply, Congress would then have to pass another law to prohibit that particular procedure and so on. Specifically defining the specific act that is prohibited without naming a particular procedure doesn't make the law itself unconstitutionally vague.

As far as viability, I can only venture a guess as to why it wasn't mentioned. There are those who believe that the right to life is also the right to human dignity, which includes a dignified death. Now, as abortions are understood to be death 'in utero' for the fetus and not death outside of the woman's body... so Congress drew a line. If the fetus is more than halfway out of the woman's body, it has the right, at that point, not to have it's skull collapsed and its brain sucked out. If it is more than halfway in the woman's body, it is a legal abortion.



If the two issues of vagueness/overbreadth and the health issue are separate, then - as I've already stated, the law is unconstitutional because it lacks one. If, however, the two aren't separate and the health issue is a part of the facial challenge, then the law is not unconstitutional. The law does not, as has been mentioned, prevent abortions. In a facial challenge - which the respondents requested - the law is constitutional if its impact on the womans right to choose is not substantial. This doesn't mean that it can't infringe upon the woman's right to choose at all... it can. But, the door is open to a pre-enforcement "as applied" challenge, which would mean the law stays on the books but can't be applied in certain situations... say, when it's necessary to protect a woman's physical health. The respondents approached this the wrong way... This doesn't make the decision just, or fair, but it does make it correct. The court couldn't say, "I'm sorry, you've chosen the wrong type of challenge to achieve your goal, so we'll just change course and pretend that you made this an "as applied" challenge and not a facial challenge." That's not the way it works.



Does a woman have the right to the safest medical procedure available? I guess that would depend on what would be available, as an procedure that was illegal wouldn't be available. Unless you mean, safest possible procedure, in which case, why not take the fetus all the way out before you kill it... wouldn't that be the safest? I mean, absolutely no instruments in and out of the womb, right? Wouldn't that be the safest possible procedure?

Here is an exchange between Justice Kennedy and the lawyer for the Respondents in oral arguments:



Now, considering that this was a facial challenge, it must be taken into consideration that this law does not impact all abortions... A law may infringe upon some protected aspect of a right, but may not substantially burden the exercise of that right. Which means, so long as an option is available - even if it is not the safest option - the law is constitutional. If the law were unconstitutional because it didn't allow for the safest procedure possible, it would be consitutional to fully deliver the fetus and then kill it. Is that what you are arguing?





Where did I "pretend like this subject was not controversial pre-2003?" What is intellectually dishonest is making this debate about a particular case dealing with a particular law about things that are completely irrelevant because their condition existed prior to the law's existence. Congress doesn't have to force States to establish abortion clinics. It doesn't have to force medical students to study in the field.



You asked how it would be enforced. An intact D&X - a medically defined procedure, as it is performed today, places the fetus past those anatomical markers before the overt act to kill the fetus is performed. There are other medically defined procedures in which the head of the fetus passes the anatomical markers before the overt act to kill the fetus is performed. These procedures are now illegal. Any procedure that meets those criteria is illegal regardless of its medical definition.

Now, no hospital administrator worth their salt is going to allow an illegal procedure to be performed. If it is performed, it would be the hospital administrator's job to report it. It would also be the obligation of anyone else in the operating room to report if a doctor performed an illegal procedure.

How are other laws enforced? In many cases, people report the illegal activity. That is how this law would be enforced. And, in order to enforce the law, the State could subpoena the woman's medical records, if such records had an indication of the type of procedure performed. Which brings me to this:



Perhaps you should read the article you linked to more carefully. If you do, you will find this:



I believe that the medical records of a woman who had an illegal procedure performed just might yield some highly probative evidence, don't you?

The answer, I would say, is no. Always is a very broad term. The answer in this particular case is yes. The decision would of course depend on competing interests. That isn't the case here. The state cannot argue that the mother must incur extra risk so that the baby can be extracted in a certain way for the interests of the baby, as it would be dead either way. That applies (or certainly should apply) to nonviability as well. The state cannot (Constitutionally) argue that the health interests of a brainless fetus usurp the health interests of the mother.

So are you saying that the doctor should be able to completely deliver the fetus and then perform the overt act of killing it - because, after all, it would be dead either way?

The State doesn't need to take into account every possible circumstance in which the law might prove a burden on a particular right - it can't, otherwise nothing could get done. Constitutional law allows for this leeway. This is why the substantial/overbreadth doctrine exists. If the respondents wanted to argue the health issue, they should've pursued an 'as applied' challenge and not a facial challenge.



In a successful applied challenge - a much easier challenge to be successful with, the law would remain on the books, but couldn't constitutionally be applied in the manner challenged in the suit. If for example, you had a brainless fetus and the safest way to remove that fetus for the woman's health was to perform an intact D&X such that this law would be violated, a successful pre-enforcement 'as applied' challenge would allow that. The law would then, as worded, have to be constitutionally interpreted in such a way that the prohibited procedure could be legally performed under those circumstances.

The problem in this case is that the Respondents went too far in seeking to have the law removed entirely. They argued that the law was overbroad and substantially burdened a woman's right to have an abortion because it was possible that it could be interpreted to mean any D&E procedure, but that is just not true. Only those procedures that have the fetus go beyond those particular anatomical markers before the overt act that kills the fetus is performed are prohibited. The standard D&E does not meet those criteria.

And, so you know, the above quote from the case recognizes the possibility that the law can be constitutionally challenged as an 'as applied' challenge. So, this isn't over.

I am missing something in general here. A lot of the debate focuses on a procedure that is not mentioned in the PBA Act. The PBA Act is pretty specific about what it deems is a Partial Birth Abortion.


The fetus/baby need to be OUTSIDE the mother. That all sounds pretty specific to me. I don't see anything in the Act that talks about killing the baby in the womb and crushing the head for easier delivery being illegal or subject to sanctions.

In general I don't understand what the medical debate is. And for Pete's Sake if you're going to point to some article or weblink to prove your point make sure the damned abortion wasn't performed.

Well, the fetus needs to be more than halfway outside of the mother - let's be clear about that.

As for the killing of the baby in the womb, that is what is at issue in terms of health. It is obviously more healthy for the mother if the fetus is partially outside of the womb because fewer instruments then have to be put into the womb that might cause damage to the mother. Killing the fetus via injection prior to performing an intact D&X or other intact D&E is also a possibility, but runs the risk of missing the fetus and injecting into the mother.

There is nothing in the law that bans a procedure that performs the act that leads to the death of the fetus while the fetus is more than halfway in the woman's body.



It is perfectly acceptable to point to instances that would be covered by the ban even if the abortion occurred prior to the ban's existence. It illustrates the type of procedures and circumstances that are now banned. It is perfectly legitimate and relevant to say, "An abortion under these circumstances is now illegal." Pointing to instances that would still be legal under the ban in order to prove a point is what is absurd.

I disagree I think it can cover and be applied to many other procedures than the one you keep insisting it only is meant to address or restrict. That was part of the argument and agreement behind the court's findings in Stenberg v. Carhart ...that the legislation was written too vaguely.

I think this same open interpretation exists, as there is no medical procedure defined, there is no gestation date defined, there is no recognition of fetal viability and there is of course no health exception allowed. All pretty broad and open to application, which leaves doctors in a climate of uncertainty and legal crisis...which I then believe creates an "undue burden" on women.

Dr Leroy Carhart testified in the Stenberg v. Carhart case that:
Q. Do you think that any abortions you perform would be prohibited by this Act?
A. I think that not only mine but every D&E procedure would be affected...every procedure could potentially break the law. I find that unacceptable.
In response to a question about what he would do if the Act were in effect: "I would stop doing abortions past 13 weeks and go back to where we were in 1969."
Dr. Vibhakar also testified that :
(questioned by plaintiffs' attorney Priscilla Smith):
Q. When we were seeking an injunction back in the fall, had you made a decision about what you were going to do if we were unsuccessful in obtaining an injunction?
A. I was going to cease from performing second trimester abortions.

The ACOG released this statement after the court's ruling:
According to the American College of Obstetricians and Gynecologists' (ACOG) amicus brief opposing the Ban, the Act will chill doctors from providing a wide range of procedures used to perform induced abortions or to treat cases of miscarriage and will gravely endanger the health of women in this country.
link

You keep claiming my argument is invalid, that the ban does clearly define and is specific and yet many practicing doctors who are familiar with these procedures disagree, why do they feel so uncertain about the law's intentions? Do they have a valid concern and do you not think their uncertainty will lead to further restrictions to the availability of women's health services in this country, as was testified to.



How is that Congress' decision to make for a parent? If that child has been determined to be nonviable because of severe deformity, birth defect or gestational age isn't it the parent's right to determine what would constitute a dignified death for their child? Fact is, this applies to ALL patients rights, and ultimately medical consent and parental rights.



They requested a facial challenge because prior cases had determined that regulation on abortion were on face unconstitutional. One case was almost identical. I believe this case was a reversal of those previous decisions, hence one of the reasons so many who support reproductive rights are concerned by this ruling.
I disagree with the ruling and support Gingsburg's dissent that the the argument that "facial attacks" are not permissable is "perplexing and makes no sense"





You are not a doctor and you, and Congress, have no right to make judgments or decisions regarding what would be the safest possible procedure for a woman. That is for a woman's doctor to inform her of and then for either the woman, or in cases of her inability to consent, her family to make the decision.

Birthing a baby, going through labor, dilating are all different physical existences or phases of a pregnancy. As I already explained in an earlier post, the differences in these types of abortions are often defined as pushing and pulling and there is a big difference between the two.

Regardless I don't think you have the authority or right to argue which would be safer. I wish to leave that distinction to the medical professionals.

Fact is there is a division within the medically community as to which is more safe or how relevant that safety is, and I personally think in situations where the medical opinions differ but still remain substantial it is not Congress' decision to make the decision for me or for my doctor. Especially when Congress' decision is being made on false information.



What are you talking about, fully deliver the fetus? How is that an extraction? I don't think I understand your point here at all.


I never based my argument on one particular case, and I already addressed my reasons for linking to that man's story, because it showed an instance when men have to make these decisions too. You can consider his story or not I really don't care, as it is not pivotal to my argument at all.

I also never claimed that congress had to force states to establish abortion clinics or abortion procedure training. But the reality is that this has been a long contentious and controversial subject in our country, that doctors and medical professionals who do perform these services for women have been killed for their actions and for you to ask me if the lack of availability was any different than it was prior to this bill's passing was in my mind ignoring all of the realties women face in seeking to fulfill their rights to reproductive choice, without the interference of Congress. The last thing we need is an unspecified ban that refuses to acknowledge our equal protection and rights to health.


Obviously I don't, and yes I did read the article, and I felt it was very useful to make my point about medical privacy because it was the Federal govt seeking these records in order to defend the PBA ban and the article discussed in detail, how this is an issue of privacy, even when anonymous. There are other instances of medical records being requested and being either restricted and/or refused. This is a relevant topic in regards to the enforcement of legislation such as this as it does create a conflict of law enforcement and a patient's right to privacy.
In fact there is even one case where the state did obtain the records. altho. with all personal information removed, and then allegedly shared the records' details with Bill O'Reilly. Great, no conflict there huh? If you do wish to actually address this piece of my argument then I will make the effort to provide more links and examples, until then I don't feel the need to be bothered.

Yes, it was written too vaguely, because it applied to any procedure where a substantial portion of the fetus's body entered the woman's vagina from the womb... not outside her body and it didn't define what constituted a "substantial" portion. As such, yes, it was written too vaguely and would also impact standard D&E's - where an arm or a leg might enter the woman's vagina during the procedure before the overt act that kills the fetus is performed. That is where this law differs, however. It is very specific regarding the anatomical markers beyond which the overt act is illegal. It is also very specific in that it says "outside of the woman's body."



The laws intentions or its specificity? The laws intent, on its face, is clear... any procedure where the living fetus goes past those very specific anatomical markers before the overt act is performed that kills the fetus is banned unless it is necessary in order to save the woman's life. I read the case and I read the oral arguments and I understand that the Respondents have tried to claim something different. But claiming it doesn't make it true.



Well, there is a difference between medical consent to end life giving care or consent to not rescusitate and consent to commit an overt act that kills. Congress has decided that the line at which the doctor can't commit an overt act that kills the fetus is when the fetus is more than halfway outside the woman's body or if the entire head is outside of the woman's body.



Well, did the previous cases have added elements to make them facially unconstitutional? Stenburg certainly did.

That's been my question, are the two separate issues or part of the same? The Respondents in oral arguments said they were the same issue - the State can prohibit the safest procedure so long as it doesn't substantially burden a woman's right to have an abortion. As such, according to the doctrine applied, the law is constitutional on its face. If Ginsburg chose to ignore that, then she ignored that. It was clear even during oral arguments that the Respondents were not simply going for the health exception. Ginsburg asked the Respondents if having a health exception would make the law constitutional and they said no. They gambled the whole kit and kaboodle and lost. They should've gone for an 'as applied' challenge regarding the health exception. Because, that's really the only problem with the law. They didn't. The court addressed a facial challenge on the law and determined that it was not vague and overbroad. I agree with that determination. I would also agree with a successful 'as applied' challenge regarding the health exception.




The Constitution does not guarantee the right to the safest procedure possible. If that were the case, it would be constitutional to completely remove the fetus before killing it - as that would, in some cases, be the safest possible procedure, would it not?



A baby is born when it leaves the woman's body regardless of whether it is pushed or pulled. Does a woman push the baby out in a caesarian? Or is the baby, rather, pulled out by