Partial-Birth Abortion – Is It Legally and Ethically Justifiable? Lessons for South Africa
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This open-access article is distributed under REVIEW Creative Commons licence CC-BY-NC 4.0. Partial-birth abortion – is it legally and ethically justifiable? Lessons for South Africa F Jogee, LLB, LLM Centre for the AIDS Programme of Research in South Africa (CAPRISA), University of KwaZulu-Natal, Durban, South Africa Corresponding author: F Jogee ([email protected]) Intact dilation and extraction is a surgical abortion procedure dubbed ‘partial-birth abortion’, and is deemed infanticide by conservative pro-life advocates in the USA. Despite its salutary (albeit feticidal) nature, as it is arguably less destructive than alternative surgical abortion procedures, intact dilation and extraction is federally banned in the USA. While ostensibly unrelated, the matter is germane to South Africa (SA) as it may inform legislation and legal policy on the regulation of feticidal abortion procedures, since feticide remains unregulated by law. The objective of this article is to understand why intact dilation and extraction is proscribed, and whether proscription is justifiable in SA. Accordingly, the primary legal, medical and ethical arguments underpinning proscription are presented, followed by an examination of the veracity of each argument before gauging whether intact dilation and extraction is constitutionally and ethically justifiable in SA. S Afr J Bioethics Law 2018;11(2):96-101. DOI:10.7196/SAJBL.2018.v11i2.623 ‘Partial-birth abortion’ (PBA) is a US colloquialism for intact dilation impose an undue burden on women by restricting their reproductive and extraction (D and X),[1] coined by conservative pro-life advocates, health choices.[19] The Supreme Court found the state to hold a bona who liken the procedure to infanticide.[2] Their reasoning is founded on fide interest in fetal protection, and held that the Act exclusively the erroneous belief that D and X constitutes the partial delivery and proscribes D and X; therefore, proscription is not unduly burdensome subsequent murder of a full-term baby.[3 ,4] Conversely, D and X is a variant to women.[19] Currently, D and X is proscribed in 32 US states.[13] of dilation and evacuation (D and E),[5,6] possibly the safest procedure Currently, the US is the only country worldwide to legally proscribe employed during late termination of pregnancy (LTOP), which refers to and criminalise D and X. [14] abortions that occur after 20 weeks’ gestation.[7-15] The Centers for Disease South Africa (SA)’s Choice on Termination of Pregnancy Act No. 92 of Control and Prevention have stated that on average, 1.3% of abortions 1996 (CTOPA)[20] is universally hailed as one of the most liberal pieces in the USA are LTOPs, of which D and Xs comprise fewer than 20%.[15] of legislation worldwide.[21] CTOPA makes provision for LTOP after 20 D and Xs are carried out between 20 and 24 weeks’ gestation,[16] and weeks’ gestation once a physician, having consulted with another typically comprise four steps: cervical dilation; breech conversion; breech physician or registered midwife, concludes that: the patient’s life is extraction, excluding the fetal head; and cephalocentesis to induce at risk; the fetus is suffering from acute malformation; or the fetus vaginal delivery of the intact fetus.[14,17] The defining feature of D and X may be considerably injured upon delivery.[22-25] However, it does not is cephalocentesis, which entails the removal of the intracranial contents regulate feticide and abortion procedures.[14] Consequently, abortion by way of a suction device, consequently preventing cervical injury by procedures may be employed at the discretion of a physician, reducing the diameter of the fetal skull prior to intact delivery.[9,10] Hence without legal repercussions.[14] This highlights the importance of D and X may be more advantageous than D and E,[14] which involves this evaluation of the reasons for the proscription of D and X, prior fetal dismemberment that is known to increase the risk of maternal to determining whether it is constitutionally and ethically justifiable mortality and morbidity.[11,12] in SA.[14] The outcome of this evaluation could inform legislation and Nevertheless, D and X is federally proscribed except in life- policy on the regulation of feticide in SA.[14] threatening circumstances, as per the US Partial-Birth Abortion Ban Act of 2003.[18] Failure to comply with the provisions of the Act Fetal pain will result in a fine, imprisonment of up to 2 years, or both a fine Medical evidence suggests that the structures required to experience and imprisonment.[18] The legality of the Act was brought before pain begin to manifest during the first trimester,[14,26] and are the Supreme Court in Gonzales v Carhart[19] and scrutinised for its fully developed towards the end of the second trimester.[14,27] The perceived ambiguity; the Act proscribes surgical feticidal abortion application of painful stimuli triggers a stress response between procedures comprising the substantial removal of the fetus via 18 and 20 weeks’ gestation, possibly causing neurodevelopmental vaginal delivery.[19] D and E encompasses fetal dismemberment deficiencies,[14,28,29] hence the use of anaesthesia and analgesics requiring substantial removal of the fetus through the vagina, during fetal surgery.[14,30] Nonetheless, the fetus supposedly requires a practice that is explicitly proscribed by the Act, and therefore up to 50 times the regular adult dosage of anaesthesia, since the D and E could be included under the ban, which could subsequently placental membrane creates a barrier between woman and fetus.[14,31] November 2018, Vol. 11, No. 2 SAJBL 96 REVIEW When anaesthesia is administered to the woman, it filters through In the case described above, it can be argued that the physicians her blood stream before infiltrating the placental membrane to repudiated patient autonomy, as the patients did not fully consent have an effect on the fetus.[14,31] Consequently, the woman would to the procedure, and therapeutic privilege would not be applicable require a dosage detrimental to her health.[14,31] Therefore, the fetus under the circumstances.[14] cannot receive the dosage it requires to be anaesthetised during the The presumption that a physician would deliberately repudiate D and X without jeopardising the health of the woman. Moreover, patient autonomy for D and X is specious.[14] Providing comprehensive the neurotransmitters mediating pain present during the second information concerning feticide to a patient requesting abortion is trimester,[14,32] yet neurotransmitters diminishing pain only appear in difficult for the physician to do, and it can be hard for the patient the third trimester; subsequently, fetuses aged between 20 and 30 to hear.[14] Physicians are required to convey the benefits, risks and weeks are purportedly vulnerable to pain.[14,32] implications of each procedure available to the patient, enabling Conversely, conflicting medical evidence has shown that fetal pain the patient to make an autonomous healthcare decision, thereby is improbable without the essential biological and neuroanatomical upholding the patient’s constitutional and statutory rights.[14,39] If the structures facilitating pain.[14,19] The feeling of pain is dependent patient wishes to be scrupulously informed about each procedure, on a thalamocortical connection; supporting evidence illustrating the physician should oblige, provided it is within the patient’s best fetal thalamocortical connection is limited.[14,33] Pain necessitates the interests; however, the physician is not legally obligated to do so.[14] perception of noxious stimuli, requiring functional thalamocortical One also has to take into consideration that the informed-consent connections.[14,31] However, thalamocortical fibres only manifest process could be compounded in emergency situations, given the during the final trimester;[14,30] therefore, fetal pain is doubtful before time-sensitive nature of the event.[14] Likewise, the process may be then.[14] Regardless, proscription of D and X on the grounds of more difficult for physicians tending to patients in the public sector, fetal pain is untenable.[14] Even if fetal pain were irrefutable, all in light of the time constraints.[14] feticidal surgical TOP procedures available between the first and third trimester could be subjected to proscription if fetal pain develops Wanton abuse during the first trimester[33] and is definitive by the second,[14,27] The claim that wanton abuse of the D and X procedure might occur consequently imposing an undue burden on women and physicians. stems from the notion that D and X is performed electively on healthy Accordingly, the argument is indefensible, bearing in mind that fetuses.[14] This argument is predicated on US congressional reports although a pro-life alternative to abortion, such as adoption, might on three physicians, Martin Haskell, James McMahon and David resolve the issue, this is not always feasible.[14] Grundmann.[14,42-46] According to congressional reports, the physicians expressly conveyed their willingness to employ D and X owing to its Informed consent convenience and efficacy, cumulatively performing thousands of the In the US case of the National Abortion Federation et al. v Ashcroft,[34] procedures that are erroneously referred to in the reports as PBAs.[14,42-46] physicians ostensibly repudiated patient autonomy by failing to Each physician allegedly confessed to performing the majority of D properly solicit informed consent for D and