Law

Doctors Weigh Next Move on Legality of Abortion

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The people most immediately affected by Wednesday's Supreme Court abortion decision are doctors who perform the procedure. Some say they remain uncertain exactly what the Partial Birth Abortion Ban Act does and does not allow. Other doctors warn that the Supreme Court has set a dangerous precedent that permits legislators to intrude into the practice of medicine.

Deborah Oyer runs a clinic that provides family planning, gynecology and abortion services in Seattle. She says she does not purposely do the specific procedure she thinks is now illegal under the Supreme Court's ruling Wednesday — but she's not entirely sure.

"The wording of what procedure is illegal is not as clear as we would like it to be," Oyer says. "The term 'partial birth abortion' is not a medical term, so how to define exactly where the line is between legal and illegal in the procedures we do isn't clear to me. If I interpret it as drawn in one place and the courts interpret it somewhere else, I may have crossed that line."

Oyer says she doesn't expect to have the abortion police standing over her while she operates, but she is still worried that someone in the room might view the procedure differently than she does.

"[There are] residents we train, people who work for us who can interpret things differently, or a patient's partner, or someone who's in the room," she says. "While I try to be very cognizant of the beliefs of the person in the room, people's beliefs change over time [and] people get in under false pretenses."

But supporters of the law say doctors like Oyer are overreacting. Douglas Johnson is legislative director of the National Right to Life Committee. He helped shepherd the law through Congress.

Johnson says that after the Supreme Court struck down a similar Nebraska law seven years ago, the federal version was rewritten. The goal was to better differentiate the term "partial birth abortion" from the more common abortion method known as dilation and evacuation, or D&E. There are several distinctions, including the fact that in a D&E the fetus is usually removed in parts, while in the banned procedure it must be intact.

"This all has to be done intentionally and deliberately for the purpose of committing this overt act," Johnson says, "so it's impossible to violate this law by accident."

Still, Johnson says he won't be sorry if doctors like Oyer stop doing second trimester abortions for fear of violating the ban.

"If you want to be absolutely sure that you will never commit a traffic offense, then don't get in a car," he says. "These classical D&E's are terrible things. They involve dismembering a living member of the human family, usually in the fifth and sixth month... We think they ought to find something else to do."

But that attitude infuriates doctors like Nancy Stanwood, an assistant professor of obstetrics and gynecology at the University of Rochester in New York. Stanwood used to perform the disputed procedure, which is known medically as intact dilation and extraction, or D&X.

"The great concern," Stanwood says, "is that essentially they've taken out of our armamentarium a procedure that for some women is the safest and best course. [It]'s really profoundly disturbing and unprecedented, that they don't have a health exception."

In fact, it is the first time Congress has allowed an abortion restriction that lacks an exception for the pregnant women's health. Stanwood says the Congress and the Supreme Court are in effect practicing medicine without a license.

"Usually people go to jail for that," Stanwood says. "Where does this go next? Are they going to tell a surgeon how to amputate a leg next? Are they going to tell somebody how to write prescriptions for antidepressants next? We within our medical practice base practice on scientific evidence, ongoing research, and on clinical experience. That's what medical practice needs to be based on, not what legislators think needs to happen."

One of the most far-reaching impacts of the decision may not be on the abortion debate at all, but on lawmakers' ability to decide what doctors may and may not do.

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