In what could represent their next major effort to dismantle the protections under Roe v. Wade, abortion opponents are laying the groundwork for a new attack on reproductive rights that borrows a page out of their old playbook.
Several pieces of similar legislation emerging on a state level could be the beginning of a national trend. The measures are cloaked in emotional language about “fetal dismemberment” that’s reminiscent of the pro-life community’s successful push to enact the country’s first national abortion ban.
The first bill to use “dismemberment” language was introduced in South Dakota last year. Seeking to “prohibit the dismemberment or decapitation of certain living unborn children,” the measure was just a few paragraphs long and didn’t make it out of committee. But that didn’t deter anti-abortion activists. This year, at the beginning of the 2015 session, identical bills entitled the “Unborn Child Protection From Dismemberment Abortion Act” were introduced in Oklahoma and Kansas.
This time around, the legislation is a little more detailed, providing a graphic definition for “dismemberment abortion.” The term apparently refers to “knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body in order to cut or rip it off.”
The language is so vague that this would be impossible to enforce.
Despite those evocative details, “dismemberment” is not actually a medical term. The two bills proposed so far this year are written in a way that would significantly complicate the medical field, leaving abortion doctors scrambling to try to figure out what’s still permitted under the law.
“The language is so vague that this would be impossible to enforce,” Dr. David Grimes, a clinical professor at the University of North Carolina School of Medicine and an abortion provider who has been practicing for four decades, told ThinkProgress. “It reveals a lack of knowledge of the procedures that the bill proposes to outlaw.”
The effort appears to be targeting a specific surgical abortion procedure known as Dilation and Evacuation, or D&E. This type of abortion, which takes about 30 minutes to perform, has become the standard practice for terminating a pregnancy after 12 weeks. It involves dilating the cervix and using surgical instruments to remove the fetal and placental tissue. This is the method of second-trimester abortion that researchers from the World Health Organization endorse, and it’s now preferred by the vast majority of U.S. patients having midtrimester terminations because it’s a simple outpatient procedure with a low risk of complications.
It’s clear that going after D&E is emerging as a top priority for the pro-life community. The president of National Right to Life published an article this week announcing that “we are determined this year to bring the tragic issue of Dismemberment Abortions to the public’s attention.” Anti-abortion activist Jill Stanek followed suit on her website, advising readers to “keep an eye out for the next big pro-life conquest: dismemberment abortions.”
Emerging anti-abortion activism around “dismemberment” is catching the attention of reproductive rights advocates, who recognize history threatening to repeat itself.
The new push evokes the controversy over so-called “partial birth abortion” — another misleading phrase coined by National Right to Life to provoke outrage over a surgical abortion procedure. That effort targeted a process called Intact Dilation & Extraction, or “D&X,” during which the cervix is dilated to allow an entire fetus to pass through. D&X became the subject of what the Guttmacher Institute refers to as a “dizzying array of laws” in the 1990s, before it was eventually banned by the Supreme Court.
Immediately, when I heard the title of these bills, I had to take a deep breath.
“Immediately, when I heard the title of these bills, I had to take a deep breath and calm down,” Dr. Anne Davis, the consulting medical director for Physicians for Reproductive Health and an OB-GYN who provides abortions, told ThinkProgress. “This is a familiar tactic, similar to the other types of bans we’ve seen. It seems the strategy is to take language that provokes emotional responses and then to argue that, because there’s an emotional reaction to something, it should be illegal.”
Elizabeth Nash, the states issue manager at the Guttmacher Institute, echoed those sentiments. “Clearly this is an effort to take some of the tactics of the past — using very graphic descriptions and inflammatory language — to ban access to abortion,” she told ThinkProgress. “I don’t know what will happen, but it’s very disturbing.”
That tactic was extremely successful for the pro-life community in the 1990s and early 2000s, when a lot of Americans were confused by the contradictory term “partial-birth abortion.” National Right to Life commissioned drawings to illustrate the procedure and placed them as paid advertisements in newspapers. The conversation shifted away from women who need abortion care and toward “unborn babies” being brutally ripped from the womb. Thanks in large part to that framing, multiple states and then Congress passed “partial birth abortion” bans, and the Supreme Court upheld the restriction. D&X is now illegal.
Now, abortion opponents appear to be pursuing the same approach with “dismemberment.” National Right to Life is trotting out its renderings of the D&E procedure. On her site, Stanek compares second-trimester abortions to the medieval torture device drawing and quartering.
The parallels are hardly an accident; this is simply the next step in a coordinated campaign. Even during the war against D&X, abortion opponents had their eye on the next battle. Back in 2006, before the Supreme Court issued its final ruling on the “partial birth abortion” ban, NPR reported that “even some supporters of the ban say that if it is upheld, they could then move on to try to outlaw the far more common D&E; procedure, whose description is nearly as unpleasant as that of the D&X.” In 2015, they might start to follow through.
According to Nash, reproductive rights groups are still studying the language of the proposed bans in Kansas and Oklahoma to figure out exactly what they might mean in practice. But some abortion providers in those states are preparing for the worst.
Julie Burkhart, who operates the South Wind Women’s Center in Wichita, believes that a “fetal dismemberment” ban would prevent her staff from performing surgical abortions in both the first and second trimesters. She said this type of legislation “would tie our doctors’ hands behind their backs,” particularly because it includes criminal penalties for doctors who violate it.
There’s not a clear line. This would impact our overall ability to provide abortion care.
“It would definitely impact women coming in for second-trimester procedures, but it’s also something that could impact women who are coming in in the first trimester,” she told ThinkProgress. “There’s not a clear line. This would impact our overall ability to provide abortion care.”
Anti-abortion laws often emerge from vague statutes that aren’t grounded in medical practice, leaving doctors walking a tightrope between caring for their patients and following the law. In addition to the misleading “partial birth abortion” bans, abortion providers have also recently been grappling with convoluted restrictions on medication abortion that are targeted at first-trimester terminations. Wary to break the law and put their practice at risk, some providers have simply stopped offering medicine-induced abortion altogether at their clinics.
“Doctors aren’t going to break the law to provide medical care. We can’t,” Davis said. “It has to do with making it so complicated and so burdensome that no one will provide it. They’re working on that with medication abortion, and then this is the kind of stuff they’re working on for surgical abortion. And that’s all the abortion we’ve got!”
“This just becomes untenable,” she added. “If you can’t do a medical one and you can’t do a surgical one, there’s nothing left.”
Without D&E abortion, the options dwindle for performing a termination after the first trimester. Hospitals could do a labor induction — a physically and emotionally exhausting process that can take up to two full days — or a type of Cesarean section. Both have fallen out of favor in the United States because they’re more expensive, more time-consuming, and can’t be performed as an outpatient procedure. According to the CDC’s most recent data, more than 70 percent of patients terminating in the second trimester opt for a procedure that could fall under the definition of D&E.
That makes Grimes optimistic that “fetal dismemberment” may play out differently than “partial birth abortion.” While D&X was a relatively new and untested procedure when it was first presented as the subject of a paper during a 1992 meeting of the National Abortion Federation, there’s decades of research on the safety and cost-effectiveness of D&E. Grimes himself has authored a study demonstrating that patients prefer D&E over both alternatives, and documenting the benefits that make it a better choice for many women. He thinks the wealth of evidence in the field could ensure that potential “dismemberment” laws won’t stand in court.
If you can’t do a medical one and you can’t do a surgical one, there’s nothing left.
However, before the legislation makes it way to the courts, it’s poised to spread further throughout the United States — particularly in states that have already proven to be hostile to abortion. Burkhart said she’s heard rumors of lawmakers in other states planning to introduce their own versions of the “dismemberment” ban. Although she’s not sure which states might be considering it, Nash is anticipating that it will advance.
“Right now it’s been introduced in two of the states where you see new trends start,” Nash said. “These states are usually pretty eager to adopt new restrictions — they don’t really care about women’s health or about constitutionality, and that makes them good testing grounds.”
In Kansas, where Republicans have a tight grip on the legislature, abortion opponents are preparing to celebrate their first victory in this latest strategy. A legislative committee is scheduled to take up the bill on Monday. Gov. Sam Brownback (R) has already pledged to sign the “Unborn Child Protection From Dismemberment Abortion Act” if it makes it to his desk.