Rationale for Banning Abortions Late in Pregnancy

M. LeRoy Sprang, MD; Mark G. Neerhof, DO

The abortion issue remains in the public eye and the media headlines largely because of a single late-term abortion procedure referred to in the medical literature as intact dilation and extraction (D&X) and in the common vernacular as partial-birth abortion. This article reviews the medical and ethical aspects of this procedure and of late-term abortions in general.

Partial-Birth Abortion (Intact D&X)

Intact D&X came to the forefront of public awareness in 1995 during a congressional debate on a bill banning the procedure. During this debate, opponents of the ban asserted that the procedure was rarely performed (approximately 450-500 per year) and only used in extreme cases when a woman's life was at risk or the fetus had a condition incompatible with life.[1,2] Following President Clinton's April 1996 veto of a congressionally approved ban, conflicting information surfaced. Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, had stated in November 1995 that "women had these abortions only in the most extreme circumstances of life endangerment or fetal anomaly."[3] However, he later admitted that his own contacts with many of the physicians performing intact D&X procedures found that the vast majority were done not in response to extreme medical conditions but on healthy mothers and healthy fetuses.[3]

In newspaper interviews, physicians who use the technique acknowledged performing thousands of such procedures a year. One facility reported that physicians used intact D&X on at least half of the estimated 3000 abortions they perform each year on fetuses between 20 and 24 weeks' gestation.[3] In another report, Dayton, Ohio, physician Martin Haskell, MD, who had performed more than 700 partial-birth abortions, stated that most of his abortions are elective in that 20- to 24-week range and that "probably 20% are for genetic reasons, and the other 80% are purely elective."[4] The late James T. McMahon, MD, of Los Angeles, Calif, detailed for the US Congress his experience with more than 2000 partial-birth abortion procedures. He classified only 9% of that total as involving maternal health indications (of which the most common was depression), and 56% were for "fetal flaws" that included many nonlethal disorders, some as minor as a cleft lip.[5]

These accounts indicate that the estimates of performing intact D&X have been grossly understated. The absence of accurate data is at least partly due to the erratic nature of the data collection process. The Centers for Disease Control and Prevention (CDC), Atlanta, Ga, collects annual abortion data, but these data are incomplete for several reasons. First, all states do not provide abortion-related information to the CDC. Second, data gathered vary widely from state to state, with some states lacking information on as many as 40% to 50% of abortions performed within their jurisdictions. Third, the categories CDC uses to report the method of abortion do not differentiate between dilation and evacuation (D&E) and intact D&X.[6-8]

Conflicting information about intact D&X and its frequency catalyzed prominent medical organizations to evaluate the procedure. In 1996, the American College of Obstetricians and Gynecologists (ACOG) convened a special committee to review it. According to the ACOG panel, intact D&X has been defined to consist of 4 elements[9] : (1) the deliberate dilation of the cervix, usually over a sequence of days; (2) instrumental conversion of the fetus to a footling breech; (3) breech extraction of the body, excepting the head; and (4) partial evacuation of the intercranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

An ACOG policy statement emanating from the review declared that the select panel "could identify no circumstances under which this procedure...would be the only option to save the life or preserve the health of the woman" and that "an intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision."[9] However, no specific examples of circumstances under which intact D&X would be the most appropriate procedure were given.

Maternal Considerations.—There exist no credible studies on intact D&X that evaluate or attest to its safety. The procedure is not recognized in medical textbooks nor is it taught in medical schools or in obstetrics and gynecology residencies. Intact D&X poses serious medical risks to the mother. Patients who undergo an intact D&X are at risk for the potential complications associated with any surgical midtrimester termination, including hemorrhage, infection, and uterine perforation. However, intact D&X places these patients at increased risk of 2 additional complications. First, the risk of uterine rupture may be increased. An integral part of the D&X procedure is an internal podalic version, during which the physician instrumentally reaches into the uterus, grasps the fetus' feet, and pulls the feet down into the cervix, thus converting the lie to a footling breech. The internal version carries risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus. According to Williams Obstetrics, "there are very few, if any, indications for internal podalic version other than for delivery of a second twin."[10]

The second potential complication of intact D&X is the risk of iatrogenic laceration and secondary hemorrhage. Following internal version and partial breech extraction, scissors are forced into the base of the fetal skull while it is lodged in the birth canal. This blind procedure risks maternal injury from laceration of the uterus or cervix by the scissors and could result in severe bleeding and the threat of shock or even maternal death. These risks have not been adequately quantified.

None of these risks are medically necessary because other procedures are available to physicians who deem it necessary to perform an abortion late in pregnancy. As ACOG policy states clearly, intact D&X is never the only procedure available. Some clinicians have considered intact D&X necessary when hydrocephalus is present. However, a hydrocephalic fetus could be aborted by first draining the excess fluid from the fetal skull through ultrasound-guided cephalocentesis. Some physicians who perform abortions have been concerned that a ban on late abortions would affect their ability to provide other abortion services. Because of the proposed changes in federal legislation, it is clear that only intact D&X would be banned.

Fetal Considerations.—The centers necessary for pain perception develop early in the second trimester.[11] Although fetal pain cannot be measured, acute stress in the fetus is indexed by blood flow redistribution to the brain, as shown by Doppler studies of human fetuses of at least 18 weeks' gestation undergoing invasive procedures that involve penetration of the fetal trunk.[12] Fetal hormonal stress response to needling of the intra-abdominal portion of the umbilical vein can be measured from as early as 23 weeks' gestation.[11]

The majority of intact D&X procedures are performed on periviable fetuses. When infants of similar gestational ages are delivered, pain management is an important part of the care rendered to them in the intensive care nursery. However, with intact D&X, pain management is not provided for the fetus, who is literally within inches of being delivered. Forcibly incising the cranium with a scissors and then suctioning out the intracranial contents is certainly excrutiatingly painful. It is beyond ironic that the pain management practiced for an intact D&X on a human fetus would not meet federal standards for the humane care of animals used in medical research.[13] The needlessly inhumane treatment of periviable fetuses argues against intact D&X as a means of pregnancy termination.

Ethical Considerations.—Intact D&X is most commonly performed between 20 and 24 weeks and thereby raises questions of the potential viability of the fetus. Information from 1988 through 1991 indicates a 15% viability rate at 23 weeks' gestation, 56% at 24 weeks, and 79% at 25 weeks.[14] Recent data from our institution indicate an 83% survival rate at 24 weeks and an 89% survival rate at 25 weeks (Evanston Northwestern Healthcare, unpublished data, 1998).

Beyond the argument of potential viability, many prochoice organizations and individuals assert that a woman should maintain control over that which is part of her own body (ie, the autonomy argument). In this context, the physical position of the fetus with respect to the mother's body becomes relevant. However, once the fetus is outside the woman's body, the autonomy argument is invalid. The intact D&X procedure involves literally delivering the fetus so that only the head remains within the cervix. At this juncture, the fetus is merely inches from being delivered and obtaining full legal rights of personhood under the US Constitution. What happens when, as must occasionally occur during the performance of an intact D&X, the fetal head inadvertently slips out of the mother and a live infant is fully delivered? For this reason, many otherwise prochoice individuals have found intact D&X too close to infanticide to ethically justify its continued use.

Professional, Legislative, and Public Concerns.—An extraordinary medical consensus has emerged that intact D&X is neither necessary nor the safest method for late-term abortion. In addition to American Medical Association (AMA) and ACOG policy statements, Warren Hern, MD, author of Abortion Practice has questioned the efficacy of intact D&X. "I have very serious reservations about this procedure....You really can't defend it....I would dispute any statement that this is the safest procedure to use." Hern states that turning the fetus to a breech position is "potentially dangerous."[15] In Illinois, a November 1996 survey of all physicians in Sangamon County (the city of Springfield and surrounding area) demonstrated that 91% of more than 180 respondents supported a ban of intact D&X (Perry M. Santos, MD, MS, written communication, November 5, 1996). In April 1997, more than 200 physician delegates who attended the Illinois State Medical Society annual meeting voted to support a ban on intact D&X. The AMA established its own committee to study partial-birth abortion and adopted the recommendations of that committee's report, as well as an official position of support for HR 1122, federal legislation banning partial-birth abortions that the AMA worked to improve and clarify prior to passage.[16]

Legislative bodies across the United States have decided that intact D&X is not appropriate. In fact, 28 states have approved a ban (Table), and Congress also overwhelmingly voted to ban the procedure with strong bipartisan support.[17] When Illinois' prochoice Gov Jim Edgar signed legislation enacting a ban in July 1997, he described the measure as one that "essentially prohibits a barbaric procedure that is repugnant to me and to almost all Illinoisans. I believe such a restriction is a proper, reasonable and humane public policy."[18] Public opinion surveys demonstrate wide support for banning partial-birth abortion when the procedure is described to those interviewed.[3] According to the Chicago Tribune, "The American people have learned enough about partial-birth abortions to know that they should be stopped."[19] New York Democratic Sen Daniel Patrick Moynihan, whose legislative record is neither prolife nor conservative, has declared, "It [intact D&X] is as close to infanticide as anything I have come upon."[20] Former Surgeon General C. Everett Koop captured the dilemma: "...in no way can I twist my mind to see that the late-term abortion as described—you know, partial birth and then destruction of the unborn child before the head is born—is a medical necessity for the mother. It certainly can't be a necessity for the baby."[21]

Back to top

Termination of Late-term Pregnancies

Many of the medical and ethical issues that pertain to intact D&X also apply to late-term pregnancy terminations, defined for the purposes of this article as termination beyond 20 weeks' gestation. Pregnancy termination at this gestational age can be accomplished either by labor induction or by D&E.

Most clinicians would argue for maintaining the option of late pregnancy termination to save the life of the mother, which is an extraordinarily rare circumstance. Maternal health factors demanding pregnancy termination in the periviable period can almost always be accommodated without sacrificing the fetus and without compromising maternal well-being. The high probability of fetal intact survival beyond the periviable period argues for ending the pregnancy through appropriate delivery. In a similar fashion, the following discussion does not apply to fetuses with anomalies incompatible with prolonged survival. When pregnancy termination is performed for these indications, it should be performed in as humane a fashion as possible. Therefore, intact D&X should not be performed even in these circumstances.

Maternal Considerations.—The risk of maternal mortality and morbidity associated with termination of pregnancy increases with advancing gestational age. Induced midtrimester abortion accounts for an estimated 10% to 20% of all abortions, and for two thirds of abortion-related major complications especially maternal mortality.[22] Women undergoing legal abortions during the first 8 weeks of gestation have the lowest risk of death (0.4 per 100,000 abortions), whereas procedures performed beyond 20 completed weeks of gestation are associated with the highest risk (10.4 per 100,000 abortions).[23] On average, the mortality from induced abortions increases 30% with each passing week of gestation.[24] At 21 weeks or more, the risk of death from abortion is 1 in 6000 and exceeds the risk of maternal death from childbirth, 1 in 13,000.[25] The risk of abortion-related maternal morbidity also increases with advancing gestational age. Among the immediate complications of abortions, the incidence of hemorrhage, laceration of the cervix, and uterine perforation is 1.2% at 8 weeks' gestation but increases to 3.6% at 15 weeks and beyond.[26] The risk of uterine perforation and resultant visceral injury also increases as gestation advances.[27] The risk of complications requiring hospital admission increases from 5.5% for abortions performed before 14 weeks' gestation to 11.2% for abortions performed subsequent to 14 weeks.[28]

Termination of pregnancy at more advanced gestational ages may predispose to infertility from endometrial scarring or adhesion formation (documented in 1 study in 23.1% of patients with induced midtrimester abortions[29]) and from pelvic infections, which occur in 2.8% to 25% of patients following midtrimester terminations.[30,31] Dilation and evacuation procedures commonly used in induced midtrimester abortion may lead to cervical incompetence, which predisposes to an increased risk of subsequent spontaneous abortion, especially in the midtrimester.[26,32,33] Cervical incompetence is more prevalent after midtrimester termination of pregnancy than first trimester termination because the cervix is dilated to a much greater degree.[34]

Considering that the risks of maternal morbidity and mortality increase substantially with advancing gestational age, elective abortions, if they are to be performed, should be performed as early as possible in gestation. Limiting late-term abortions would minimize maternal risks.

Fetal Considerations.—The fetus is capable of experiencing pain to an increasing degree as gestation advances. Prohibiting elective terminations beyond 22 weeks would minimize the fetal pain and suffering associated with termination of pregnancy. Minimizing fetal pain and suffering should also be more strongly considered in cases of late-term terminations for fetal anomalies.

Ethical Considerations.—The autonomy of the pregnant woman is increasingly counterbalanced by fetal development, the increasing tendency to attribute personhood to the fetus, and the increasing likelihood of independent fetal viability. Fetal development affects maternal autonomy on a inversely sliding scale. As a fetus evolves into an individual capable of survival independent of its mother (and thus personhood), the conditional fetal rights argument gains greater merit.

A second ethical principle concerns beneficence, ie, one individual's obligation to act for the benefit of another. As the fetus matures, the majority of individuals would extend greater and greater beneficence to the fetus. According to Stubblefield, "Inevitably, there must be a gestational age limit for abortion. I would avoid performing abortions after 22 weeks unless the mother's life were endangered or unless the fetus had major malformations so severe as to preclude prolonged survival....When termination of pregnancy will be undertaken at or after 23 weeks because of serious risk for maternal health, the fetus should be considered as well."[27]

A third ethical principle concerns justice and denotes balancing the rights of distinct individuals. As the fetus develops, more and more people recognize that there are 2 distinct individuals involved. To take a position that would make the value of the fetus depend solely on private choice and on the individual exercise of power fails to understand the importance of communal safeguards against capricious power over life and death.[35]

Back to top

Conclusions

Medical professionals have an obligation to thoughtfully consider the medical and ethical issues surrounding pregnancy termination, particularly with respect to intact D&X and late-term abortions. Having done so, we conclude the following: (1) Intact D&X (partial-birth abortion) should not be performed because it is needlessly risky, inhumane, and ethically unacceptable. This procedure is closer to infanticide than it is to abortion. (2) Abortions in the periviable period (currently 23 weeks) and beyond should be considered unethical, unless the fetus has a condition incompatible with prolonged survival or if the mother's life is endangered by the pregnancy. (3) If a maternal medical condition in the periviable period indicates pregnancy termination, the physician should wait, if the medical condition permits, until fetal survival is probable and then proceed with delivery. Such medical decisions must be individualized.

Physicians must preserve their role as healing, compassionate, caring professionals, while recognizing their ethical obligation to care for both the woman and the unborn child. In July 1997, the ACOG Executive Board supplemented its policy on abortion toward this end, stating, "ACOG is opposed to abortion of the healthy fetus that has attained viability in a healthy woman."[36]

We hope that with thoughtful discussions regarding specific issues such as those considered in this article, the opposing forces in the ongoing, stagnant abortion debate will find middle ground on which most can agree. The question is often asked, "But who should decide?" Ultimately, at least in the United States, the public will decide. The results of an August 1997 national poll showed public opinion firmly in the camp of "drawing a line" on abortion rights, with 61% believing that abortion should be legal only under certain circumstances, and 22% defending the legality of abortion under any circumstances.[37] Society will not continence infanticide. According to Boston University ethicist and health law professor George Annas, JD, MPH, Americans see "a distinction between first trimester and second trimester abortions. The law doesn't, but people do. And rightfully so."[38] He explained that after approximately 20 weeks, the American public sees a baby. The American public's vision of this may be much clearer than that of some of the physicians involved.

From Northwestern University Medical School and Evanston Northwestern Healthcare (Dr Sprang) and the Division of Maternal-Fetal Medicine, Evanston Northwestern Healthcare (Dr Neerhof), Evanston, Ill.

Reprints: M. LeRoy Sprang, MD, Evanston Northwestern Healthcare, 1000 Central St, Suite 700, Evanston, IL 60201 (e-mail: mneerhof@nwu.edu).

Back to top

References

1. Jouzaitis C. Foes line up anew on late abortions. Chicago Tribune. February 27, 1997:3.

2. Seelye KQ. House, by broad margin, backs ban on late type of abortion. New York Times. March 21, 1997:A1, A14.

3. Gianelli DM. Abortion rights leader urges end to "half truths." American Medical News. March 3, 1997;3, 4, 55, 56.

4. Gianelli DM. Bill banning partial-birth abortions goes to Clinton. American Medical News. April 15, 1996:9, 10.

5. Statement of representative Charles T. Canady (R-Fla). Congressional Record; July 24, 1996.

6. Koonin LM, Smith JC, Ramick M, Green CA. Abortion surveillance—United States, 1992. MMWR Morb Mortal Wkly Rep. 1996;45(SS-3):1-36.

7. Atrash HK, Lawson HW, Smith JC. Legal abortion in the US: trends and mortality. Contemp Obstet Gynecol. 1990;35:58-69.

8. Issues in Brief: The Limitations of US Statistics on Abortion. New York, NY: Alan Guttmacher Institute; 1997.

9. ACOG statement of policy. Approved by the executive board January 12, 1997 and distributed to ACOG chairs.

10. Cunningham FG, MacDonald PC, Gant NF, et al. Williams Obstetrics. 20th ed. Stamford, Conn: Appleton & Lange; 1997:507.

11. Giannakoulopoulos X, Sepulveda W, Kourris P, et al. Fetal plasma cortisol and D-endorphin response to intrauterine needling. Lancet. 1994;344:77-81.

12. Teixeria J, Foglioni R, Giannakoulopoulos X, et al. Fetal haemodynamic stress response to invasive procedures. Lancet. 1996;347:624.

13. Report of the American Veterinary Medical Association panel on euthanasia. J Am Vet Med Assoc. 1993;202:229-249.

14. Allen MC, Donohue PK, Dusman AE. The limit of viability: neonatal outcome of infants born at 22 to 25 weeks' gestation. N Engl J Med. 1993;329:1597-1601.

15. Gianelli DM. Outlawing abortion method. American Medical News. November 20, 1995:3, 70-72.

16. Late-Term Pregnancy Termination Techniques. Chicago, Ill: American Medical Association; 1997. Report 26 of the AMA Board of Trustees (A-97).

17. Status of Bans on "Partial-Birth Abortion" and Other Abortion Methods. New York, NY: Center for Reproductive Law and Policy; June 29, 1998.

18. Governor Acts to Ban Partial-Birth Abortions: Strikes Clause That Would Give Biological Fathers Standing [news release]. Springfield, Ill: Office of Gov Jim Edgar; July 17, 1997.

19. The lies that zealots tell [editorial]. Chicago Tribune. March 3, 1997:14.

20. Hentoff N. Close to infanticide. Washington Post. August 30, 1996:A31.

21. Gianelli DM, Kent C. The view from Mount Koop. American Medical News. August 19, 1996:3.

22. Toppozada M, Ismail AAA. Intrauterine administration of drugs for termination of pregnancy in the second trimester. Baillieres Clin Obstet Gynecol. 1990;4:347-349.

23. Lawson HW, Frye A, Atrash HK, et al. Abortion mortality, United States, 1972 through 1987. Am J Obstet Gynecol. 1994;171:1365-1372.

24. Tietze C. Induced Abortion: A World Wide View. New York, NY: Population Council; 1983:83.

25. Facts in Brief: Induced Abortion. New York, NY: Alan Guttmacher Institute; 1996.

26. Castadot RG. Pregnancy termination: techniques, risks, and complications and their management. Fertil Steril. 1986;45:5-17.

27. Stubblefield PJ. Pregnancy termination. In: Gabbe SG, Niebyl JR, Simpsons JL, eds. Obstetrics, Normal and Problem Pregnancies. 3rd ed. New York, NY: Churchill Livingston; 1996:1243-1278.

28. Sykes P. Complications of termination of pregnancy: a retrospective study of admissions to Christchurch Women's Hospital, 1989 and 1990. N Z Med J. 1993;106:83-85.

29. Lurie S, Appleman Z, Katz Z. Curettage after midtrimester termination of pregnancy: is it necessary? J Reprod Med. 1991;35:786-788.

30. Lurie S, Katz Z, Insler V. Midtrimester induction of abortion: comparison of extraovular prostaglandin E₂ and intra-amniotic prostaglandin F₂. Contraception. 1993;47:475-481.

31. Filshie M, Guillebaud J. Contraception: Science and Practice. London, England: Butterworths; 1989:250-274.

32. Hogue CJR, Cates W Jr, Tietze C. The effects of induced abortion on subsequent reproduction. Epidemiol Rev. 1982;4:66-94.

33. Laferla JJ, ed. Termination of pregnancy. Clin Obstet Gynecol. 1986;13:1-160.

34. Hawkins DF, Elder M. Human Fertility Control, Theory, and Practice. London, England: Butterworths; 1979:237-260.

35. Callahan D. The abortion debate: can this chronic public illness be cured? In: Chervenak FA, McCullough LD, eds. Clin Obstet Gynecol. 1992;35:783-791.

36. ACOG Statement of Policy. Approved by executive board and published in ACOG newsletter; July 1997.

37. Padawer R. "Partial-birth" battle changing public views. USA Today. November 17, 1997:17A.

38. Gianelli DM. Medicine adds to debate on late-term abortion. American Medical News. March 3, 1997:3, 54-56.

(JAMA. 1998;280:744-747)

See related controversy

Back to top