With the Justice Department demanding that at least six hospitals hand over the medical records of hundreds of abortions performed there, the debate over partial-birth abortions appears to be heating up again. Although Bush signed the Partial-Birth Abortion Act of 2003 into law in November, federal judges in Nebraska, New York and California issued temporary injunctions immediately thereafter, protecting physicians who perform this procedure until the courts hear both sides’ full arguments. Because they can be punished later for abortions performed during the injunction if the law is upheld, however, doctors are exercising precaution.

It is difficult to surmise whether such precaution is all for naught. Since the Supreme Court overturned a Nebraska partial-birth abortion law that failed to provide a medical exemption in Stenberg v. Carhart, and all twenty-one legal challenges to such laws at the state and federal level have succeeded, the law is likely to be overturned. But if one or two justices retire before the Court hears the case, the President’s judicial nominees could sway the vote.

What is at stake when the Court hears this case? More than the term ”partial-birth abortion“ might lead one to believe. By making the procedure seem wholly unnecessary, the ban appeared to be a negligible restriction on reproductive rights.  But it is telling that the American Medical Association and the American College of Obstetricians and Gynecologists (ACOG), which represents 90% of U.S. board-certified obstetrician/gynecologists, maintain that partial-birth abortion is not a medical term. Nevertheless, the ACOG assumes this legal term of art crafted by Congress refers to ”intact dilatation and extraction  .  .  .,  a rare variant of a more common midterm abortion procedure known as dilatation and evacuation“ which ”may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.“ Significantly, the law never employs these medical terms, leaving it open to the discretion of the courts to interpret.

Insisting that the partial-birth abortion ban ”is not required to contain a ‘health’ exemption, because . . . a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman’s health, and lies outside the standard of medical care,“ the legislation restricts this procedure across the board. While the law includes a nominal medical exemption if a woman’s life is at stake, its failure to do so for her health belies previous partial-birth abortion rulings. Moreover, since permissibility of exemptions must be determined by State Medical Boards, whose members are typically appointed by the governor, doctors in more conservative states may never obtain medical exemptions, threatening a right that many women and their doctors have taken for granted for more than thirty years.

Laura Nathan-Garner