It is late here in Iraq, and while I was trying to send an email, I noted that Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California issued a permanent injunction against the federal partial birth abortion statute. The judge does much early in the opinion to suggest that partial birth abortion, also known as intact dialation and extraction ("intact D&E") is relatively commonly used. To support that conclusion, she points to expert testimony stating that when trying to perform an ordinary D&E (wherein the woman is partially dilated, following which the doctor grasps the fetus with forceps, and disarticulates or dismembers the fetus in the course of removing it in several passes), doctors sometimes dialate the woman to the point where intact D&E can occur. To quote the order:
Several physicians report that occasionally while performing a D&E, they encounter a situation where they believe it will be possible to remove the fetus intact or largely intact. This occurs when the womans cervix is dilated to such a degree that the fetus can be extracted up to the head, in either one or two "passes" with the forceps. . . . The number of times this occurs varied by doctor, but ranged between 5% to 33% of all D&Es performed, with most doctors reporting occurrences of around 5-15% of the time.
It is at this point that Judge Hamilton drops a pregnant footnote to support this statistic in spite of seemingly contradictory evidence:
Dr. Sheehan and Dr. Creinin reported that an intact D&E occurred less than 1% of the time, but they were reporting incidents where where the entire fetus, including the head, was removed intact.
(emphasis added). Given the late term procedures at issue, I believe that what the Judge is inartfully describing is induced childbirth. Because the Judge had already stated that these doctors generally do not administer lethal chemical agents such as digoxin prior to performing the D&E procedure, this "accident" may well be live induced childbirth. This testimony sounds remarkably similar to that of Dr. Cassing Hammond, who served as an expert to the abortion doctors challenging the Ohio partial birth abortion statute in Women’s Medical Professional Corp. v. Taft. Dr. Hammond testified that he would prefer, if possible, to “remove the fetus totally intact every time and bring about its demise after it had been delivered.”
While the district courts permanent injunction is broad-- prohibiting the federal government from enforcing the statute against Planned Parenthood or essentially anyone who does business with Planned Parenthood--it obviously does not apply to state laws on the topic, particularly where, as in Ohio, the states partial birth abortion statute has been upheld by a federal court of appeals.