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ISSUE: Is It Constitutional to Ban Partial-Birth Abortions Without Providing for

An Exception to Protect the Health of the Mother?

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Partial-Birth Abortion

Partial-Birth Abortion is a technique where a live child is taken from the uterus and

inserted, legs first, through the vagina, except the head, which the abortion doctor clamps

inside the cervix. The abortion doctor uses specialized surgical equipment to penetrate the

fetus's skull. He then puts a catheter into the hole and uses heavy suction equipment to extract

the baby's brain. The abortion doctor then forces the infant's skull to shatter, finalizing the

delivery of the now-dead child.

According to the bill, partial-birth abortion occurs when "the person performing the

abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a

head-first presentation, the entire fetal head is outside the body of the mother, or, in the case

of a breech presentation, any part of the fetal trunk past the navel is outside the body of the

mother," and then kills the baby. The surgery would be legal if it were "required to preserve

the life of a woman whose life is threatened by a bodily disorder, physical disease, or

physical injury, including a life-endangering health condition induced by or emerging from

the pregnancy itself," according to the law.

Background Information

The United States House of Representatives voted 295 to 136 to prohibit partial-birth

abortion. After two months, the United States Senate adopted a revision to the language

proposed by Pennsylvania Republican Senator Rick Santorum. The Senate adopted the

incomplete bill by a vote of 64 to 36. In Roe v. Wade, the Supreme Court initially legalized

abortion in 1973, favoring the woman's rights over the unborn child's right to live. This

judgment did not meet with the approval of many Christians, who felt that unborn infants

should have the right to life. The profile movement began to advocate for the rights of an

unborn child, but it was met with skepticism from many Americans. They were tired of
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protecting the unborn and themselves since most Americans saw them as fanatics who

wanted people to face an unpleasant reality they didn't want to accept.

Dr. Martin Haskell revealed an abortion procedure termed dilatation and extraction (D

& X) for mid and later stages of pregnancy during a conference in Texas in 1992. Dr. Haskell

persuaded the public that D & X was a safer and better operation than the standard dilation

and evacuation (D & E) procedure, having performed it over 700 times.

Types Of Late-Term Abortions

After the 24th week of pregnancy, late-term abortion is done. It may be required for a

variety of reasons. Still, the most common fatal genetic disorders are deemed life-threatening

or life-threatening issues that the mother may have experienced throughout her pregnancy. A

sort of late-term abortion is a third-trimester abortion.

Current Status Of The Law On Both Abortion And On Partial-Birth Abortion.

Within the first trimester of her pregnancy, a woman has the right to privacy regarding

her pregnancy. As a result, she is free to undergo an abortion during the first trimester, and

the choice is between her and her doctor. She doesn't need any other justification than that

she despises the child. Only if it can be proven that abortion will hurt the woman more than a

full-term pregnancy may the state intervene (Noah, 2019). States can pass laws restricting

abortion beyond the first trimester since the procedure becomes more harmful to the mother,

and the state has the authority to protect the child after that point.

Any state cannot prohibit abortion during pregnancy if proven that the pregnancy is

hazardous to the woman's health. Psychological factors are included in the problem of

women's health. This implies that even late in pregnancy if it is established that the

pregnancy is mentally damaging the mother, a state cannot prohibit her from having an

abortion. As a result, a woman's health is the primary and sometimes exclusive concern

throughout pregnancy.
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Why Partial-birth should be illegal

Much of the controversy surrounding partial-birth abortions stems from the fact that the

infant is killed outside the mother's womb rather than inside. Partial-birth abortions are a big

ethical quandary that borders on immorality. It is immoral because it is a human life protected

by the same legal and ethical standards. Pro-life activists say that the fetus has a genetic

makeup distinct from its mother. A human embryo is said to be biologically alive if it meets

all of the criteria for biological life, including growth, metabolism, reproduction, and

response to stimuli.

Abortion is not regarded as a contraceptive, according to popular belief. Part-birth

abortions, according to pro-life groups, are employed in contraceptives to avoid childbirth.

Abortion, according to the Family Research Council, causes abandonment, despair, and

betrayal in women's lives. Furthermore, it jeopardizes the mother's mental and physical well-

being. As a result, partial-birth abortions are wrong from a moral standpoint and the

perspective of the child's and mother's lives.

Based on the Supreme Court judgment in Gonzales v. Carhart in 2007, which upheld

the legitimacy of the PartialBirth Abortion Ban Act 2003, it will be breaching the law. In

addition to the Roe v. Wade decision, this court opinion provided the government with

authority to regulate abortion. As a result, executing partial-birth abortions without a change

in the legislation would constitute criminal behavior and a violation of the law.

From an ethical viewpoint, life begins at conception, and no one has the authority to

end another person's life because of an anomaly. This, along with the fact that it saves the

woman's life at the price of her kid, renders it unethical. According to Focus for the Family,

there is a difference between the mother's health and her life, and abortions should not be

based only on the mother's health while ignoring the child's life. There is a lot of uncertainty
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in the terms. Allowing abortion due to health hazards might imply that many types of

pregnancy pain could justify elective abortion.

When presented with a choice between good and wrong, moral integrity is the notion of

making the best decision. The way people define right and evil is influenced by various

elements such as religion, economic standing, values, and much more. When medical student

graduates, they take an oath to provide patient care. It's raised the question of whether caring

for your patience goes against your moral integrity. Individuals such as Christopher Cowley

contend that a medical professional cannot be forced to perform an act against their

conscience, such as abortion. It causes emotions of shame, grief, and humiliation, all of

which lead to self-hatred. Doctors quit the medical sector to pursue a different job because of

their lack of self-respect. Many people value their moral integrity and do not want to

jeopardize it. Many people decide not to pursue a career in medicine because of the danger.

Whether the Act's restriction would ever put women's health in jeopardy is a point of

contention and inconsistency. According to some experts, intact dilation and extraction is the

safest procedure since it reduces the likelihood of fetal components staying in the uterus

while also taking less time. The United States District Court for the Southern District of New

York, on the other hand, was suspicious about intact dilation and extraction's stated health

advantages. Medical doubt over whether the Act's ban poses serious health hazards,

according to Justice Kennedy, is sufficient evidence to infer that the Act does not place an

unreasonable burden on the public. In this case, the Act enables a widely used and well-

approved procedure. Hence it does not pose a significant impediment to the right to abortion.

Given the flexibility and availability of other safe abortion techniques, the Act is not

inadequate since it is unclear if this inequitable treatment is ever necessary to save a woman's

health and life. The Supreme Court ruled that Congress' restriction of partial-birth abortion

was not unduly vague and did not create an undue burden because it only applied to a specific
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abortion procedure. Some contend that the Act merely outlaws a limited number of abortion

methods and techniques. As a result, options exist that do not present critical health issues or

excessive strain.

Many ordinary folks feel the Act is lawful because their religion forbids any form of

abortion that is viable, and the First Amendment protects religious liberty. Because it may

inflict the infant unnecessary pain and suffering, partial-birth abortion may be deemed cruel.

This method has been related to infanticide in the past. The Unborn Victims of Violence Act

was passed in 2004. Under the Unborn Victims of Violence Act, an embryo or fetus in the

uterus is recognized as a valid victim. According to this law, the guilty culprit is "charged

with killing two victims" if a pregnant lady is slain and her unborn child is also killed. One of

the grounds for this Act, when compared to others, is that it identifies the mother and the

unborn child as two unique victims, regardless of the stage of pregnancy. Because the unborn

child is also a victim and killed, some may believe that making abortion illegal is entirely

constitutional. In Gonzales v. Carhart, the court will consider whether it is constitutional to

prohibit "partial-birth" abortions without allowing for an exemption to protect the mother's

health. Because alternative techniques of abortion are still available to protect women's health

in some instances, Justice Kennedy has concluded that this prohibition is lawful.

Why should Partial-birth be legal

Justice Ginsburg, Justice Stevens, Justice Souter, and Justice Breyer wrote the

dissenting opinion in Gonzales v. Carhart. In Planned Parenthood of Southeastern

Pennsylvania v. Casey, the Supreme Court upheld Roe v. Wade. According to Justice

Ginsburg, "First, the Court considered the kind of abortion restrictions that can be imposed

before fetal viability. It acknowledged a woman's right to choose and get an abortion before

viability without the state's intervention. Second, the Court recognized the state's authority to

limit abortions after fetal viability if the statute includes exceptions for pregnancies that risk
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women's lives or health. Third, the Court affirmed that the state has legitimate interests in

preserving the woman's health and the life of the fetus that may become a child from the start

of the pregnancy ". According to the Court, women should have the freedom to choose

whether or not to perform an abortion before reaching maturity. States may restrict abortions

after fetal viability, but their laws must include an exemption to safeguard women's lives.

In Stenberg v. Carhart, the Supreme Court found that Nebraska legislation limiting

partial-birth abortions was unconstitutional under the Fourteenth Amendment's guarantee of

liberty. "The closely divided Court threw down the act because it imposed an excessive

barrier on a woman's right to an abortion and did not provide for an exemption in

circumstances of threatened health," according to the Court. The precedents, in this case,

were Roe v. Wade and Planned Parenthood v. Casey. The main goal was to guarantee that

legislation prohibiting partial-birth abortions did not include a health exception. Justice

Ginsburg stated a divide of medical opinions concerning intact dilatation and

extraction(Rosenthal, 2020). Nonetheless, they made it plain that a health exemption is

necessary "as long as significant medical authority supports the claim that prohibiting a

particular abortion practice might threaten women's health."

It is claimed that Congress did not mull over the facts before coming to its conclusions.

It's troubling that some of the six doctors who testified had never done abortions before, and

one of them wasn't even an ob-gyn. None of them had ever performed a complete dilation

and extraction surgery. These doctors didn't have any training or experience with intact

dilation and extraction, so their opinions didn't carry any weight. Congress has claimed that

medical colleges did not give adequate education on intact dilation and extraction; yet, many

prominent medical institutions do. According to Congress, there is also inadequate medical

evidence to indicate that partial-birth abortions are as secure as, if not healthier than, other

abortion techniques. Despite this, congressional documents contain letters from several
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doctors saying that the Partial-Birth Abortion Ban Act might jeopardize pregnant women's

health. Together with the California Medical Association, the American Public Health

Association has also testified in Congress that the intact dilation and extraction process

provides meaningful security benefits over alternative abortion procedures.

In some instances and for determined women, successful medical experts throughout

the District Court Trials justified that intact dilation and extraction are less dangerous than

other operations and required to safeguard the pregnant woman's health. Women with

particular medical issues, including bleeding disorders, heart illness, uterine scarring, and

weaker immune systems, may benefit from intact dilation and extraction. Those with placenta

previa and accreta, as well as women carrying babies with severe hydrocephalus, might

consider this treatment. The Court maintained the limitation because the Partial-Birth

Abortion Prohibition Act could not prohibit the non-intact dilation and extraction technique.

On the other hand, the non-intact dilatation and extraction procedure may be considered

severe and horrifying. "It is just absurd to believe that one of these two equally terrible

procedures...is more comparable to infanticide than the other, or that the State advances any

legitimate purpose by prohibiting one but not the other." The Court deprives women of their

freedom to make autonomous and self-governing personal decisions, even if it jeopardizes

their health. The Supreme Court has previously ruled that the state cannot prohibit a woman

from getting an abortion if necessary to rescue her life. By "putting a major hurdle in the way

of a woman seeking an abortion," this rule endangers women's health while imposing an

unreasonable hardship. Contrary to what Congress claims, medical evidence is that the illegal

practice is occasionally necessary to safeguard the mother's health.

Some people feel that faith, rather than years of education, determines whether or not a

person is a good doctor. Physicians believe this and explain why, even under the direst of

circumstances, they do not suggest abortion. Diseases like the human immunodeficiency
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virus would never have been managed if religion were a condition for being a good physician

and having a great medical practice. Birth control, such as condoms, is considered a sin by

several faiths. The increased use of condoms has resulted in a reduction in the transmission of

the human immunodeficiency virus. They would be outlawed if religion were used as a

criterion for medicine. Without them, we wouldn't be able to prevent infection from

spreading from one sick person to another, increasing the number of cases. If the same

rationale were applied to abortion, mortality rates among pregnant women and newborns

would increase, as would congenital impairments. This is why medical professionals and

practices are judged based on their care and influence on patients, not their religious views.

Before becoming a doctor, medical students must swear the Hippocratic Oath. The

Hippocratic Oath was created to prevent self-interested physicians from jeopardizing

individual patients in ancient times. The medical code of ethics states that "A physician must

be committed to delivering competent medical treatment while also showing compassion and

respect for the dignity and rights of others. Within the confines of the law, a physician must

respect the rights of patients, colleagues, and other health professionals, as well as patient

confidentiality and privacy ".. A doctor's oath specifies that he or she shall "not damage."

Every doctor is supposed to take this pledge to ensure that whatever services they deliver to

their patients, whether cosmetic, emergency, or routine, are performed by them or another

physician. Assume that a pregnant woman is in danger of dying due to pregnancy problems.

Licensed and practicing physicians have a legal responsibility to counsel patients that

abortion is the best course of action for their survival. A doctor who disagrees with

conducting abortions morally and withholds this information from their patent may face legal

consequences such as jail time, fines, and license revocation.

The physician's professional obligation to their patients is to set their convictions aside

and do what is medically required for their patients' health. An indirect recommendation
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might be supplied instead of concealing this information. When a doctor thinks their moral

integrity may be jeopardized, they will make this sort of referral. They refer their patient to a

different certified doctor willing to finish the abortion. This is similarly related to the

conscience clause, which exempts a person or a professional from religious-culture-based

compliance. This section empowers doctors to decline to offer medical treatments, such as

abortions, based on their religious, moral concerns. Instead, these doctors might refer patients

to other doctors who can do the surgery.

Personal Position

States that prohibit partial-birth abortions without allowing an exemption to safeguard

the mother's health are, in my opinion, unconstitutional. Abortion has clear and

straightforward arguments on both sides of the debate. However, when it comes to partial-

birth abortions, the mother's health is paramount; consequently, exceptions should be made to

preserve her health. If health problems occur throughout her pregnancy, it would be in her

best interests to ensure she had a provision for partial-birth abortion to protect her health and

life.

I will address both state regulations and legislation and the woman and fetus

perspective to thoroughly discuss the ethical problems surrounding partial-birth abortions. To

begin with, the State Roe v. Wade case, as well as subsequent lawsuits, resulted in varied

abortion ethics. The Supreme Court ruled that states have the authority to restrict and prohibit

abortions after fetal viability if they meet specific criteria. According to the High Court,

conditions should make exceptions for risks to a mother's health or life, health to include both

physical and mental health, the physician is the one who determines when a fetus is viable

and what constitutes "health," and finally, in the event of a medical emergency, only one

physician's judgment is sufficient.

Based on life viability or gestational age constraints, all states that allow partial-birth

abortions are prohibited. Twenty-six states granted exceptions for the mother's health and

life, among the 43 states restricting abortion based on viability or gestational age limits(Hill,

2020). Several states, however, broke the legislation; 13 violated the constitution. They only

had life-saving or physical health exclusions, and four of them only had life-saving

exceptions and did not consider the mother's health. 30However, some jurisdictions demand a

second physician's opinion to determine if the abortion was medically required.

But what about the fetus? Aborting a fetus that is 20 weeks or older is termed partial-

birth abortion. The heart is working, the fetus is starting to take shape, the sex of the embryo

can be identified, and brain development is beginning to make the fetus as human as possible.

This suggests that the fetus should be accorded the same rights as other human beings. As a

result, neglecting the fetus' rights in favor of partial-birth abortion for no medical reason other

than convenience violates the fetus's autonomy, beneficence, nonmaleficence, and justice.

There are more outstanding ethical issues and fetal rights violations if the mother is well and

the fetus is healthy. Simultaneously, autonomy is the sole mother's right that has been

infringed.

The woman should choose between her health and the quality of life of a fetus with

fetal abnormalities. As observed in certain governments without exception, denying the

woman a choice creates an ethical problem between nonmaleficence and beneficence. It also

deprives her of her independence. As a result, depriving a woman of her right to abortion

without restrictions is a violation of her whole set of privileges. On the other hand, in the case

of the fetus, the mother should be given the option of deciding whether or not she wants her

kid to have a worse quality of life. It would be against beneficence and nonmaleficence if the

fetus were born with a worse quality of life. This is because both the kid, the mother, and the

entire family would be harmed. As a result, according to the practical approach, the ideal
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option would be to allow the woman a choice and grant her legal exemptions, benefiting the

family, mother, and child.

Conclusion

The issue of abortion is divisive; however, partial-birth abortion is even more so. Some

individuals say partial-birth abortion is cruel and horrible since it kills a fetus only moments

before the birth process is completed. Others argue that partial-birth abortion is just as

heinous as other types of abortion. Some say that partial-birth abortion is less horrific since

the fetus is removed whole, whereas other techniques may cause the fetus to be dismembered.

Justice Kennedy argues in Gonzales v. Carhart that prohibiting "partial-birth" abortions

with no exception to safeguard the mother's health is legal. Other abortion methods, he notes,

are not illegal and could be used as a backup if necessary. He claims that the Act does not

place an unreasonable burden on businesses; as per Justice Kennedy, medical uncertainty

about whether the Act's limitation poses significant health hazards is enough proof to indicate

that the Act doesn't impose an excessive burden. According to Congress, partial-birth

abortion is never advised and isn't essential to preserve pregnant women's health. The Unborn

Victims of Violence Act can be likened to this legislation. These crimes appear to be

motivated by a desire for justice for the crime of "killing" an unborn child.

Justice Ginsburg, on the other hand, disagrees with Justice Kennedy. She argues that

the Partial-Birth Abortions Ban Act puts women's health at risk. Justice Ginsburg claims that

there is no distinction between the various abortion techniques that makes one more or less

"inhumane" than the others. She claims that congressional documents contain medical

testimonies claiming that the Act endangers women's health. Because a partial-birth abortion

removes the fetus intact, it is less dangerous for the mother. It is considered safer because it is

less likely to perforate the uterus or cervix. Women with particular medical issues, including

bleeding disorders, heart illness, uterine scarring, and weaker immune systems, may benefit
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from intact dilation and extraction. Because there have been medical accounts stating that this

operation is occasionally essential to safeguard the woman's life, Justice Ginsburg notes that

there needs to be a health exemption mentioned. The state cannot restrict the use of an

abortion procedure where it is essential to save a woman's life, as the Court has frequently

stated in previous rulings.

References

Hill, B. J. (2020). The Geography of Abortion Rights. Georgetown Law Journal,

(forthcoming, 2021), Case Legal Studies Research Paper, (2020-11).

Noah, L. (2019). State Regulatory Responses to the Prescription Opioid Crisis: Too Much to

Bear?. Dickinson L. Rev., 124, 633.

Rosenthal, M. S. (2020). "Nobody Puts Baby in a Corner": Reproductive Justice in Dirty

Dancing (1987). In Healthcare Ethics on Film (pp. 229-273). Springer, Cham.