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ACOG Files Amicus Brief in Gonzales v. Carhart and Gonzales v. PPFA

September 22, 2006

Washington, DC -- The American College of Obstetricians and Gynecologists (ACOG) has filed an amicus brief in support of the challenges to the federal Partial-Birth Abortion Ban Act of 2003. The United States Supreme Court will hear arguments on November 8, 2006, in two cases that dispute the constitutionality of the Act, which was passed by Congress and signed into law by President Bush in November 2003. The ban has not taken effect because of the legal challenges.

Almost immediately after the Act was signed into law by President Bush, physicians and medical groups filed three separate lawsuits challenging it in federal courts in New York, Nebraska, and California. In each case, the court ruled the Act unconstitutional and the decision was upheld on appeal. The government subsequently sought review of two of the cases by the US Supreme Court: Gonzales v. Carhart (Nebraska) and Gonzales v. Planned Parenthood Federation of America (PPFA) (California). Any further appeals in the New York case would be initiated after the US Supreme Court rules on the Nebraska and California cases.

"The courts were correct each time they struck down such ill-conceived and unconstitutional restrictions on physicians' ability to provide patients with the safest possible medical care," according to Douglas W. Laube, MD, MEd, president of ACOG.

The Act purports to ban so-called "partial-birth abortions;" however, "partial-birth abortion" is not a medical term and is not recognized in the field of medicine. The Act defines "partial-birth abortion" in a way that encompasses a variation of dilatation and evacuation (D&E), the most common method of second-trimester abortion, in which the fetus remains intact as it is removed from the woman's uterus. The Act's definition also encompasses some D&E procedures in which the fetus is not removed intact.

Over 95% of induced abortions in the second trimester are performed using the D&E method. The alternatives to D&E in the second trimester are abdominal surgery or induction abortion. Doctors rarely perform an abortion by abdominal surgery because doing so entails far greater risks to the woman. The induction method imposes serious risks to women with certain medical conditions and is entirely contraindicated for others.

The intact variant of D&E offers significant safety advantages over the non-intact method, including a reduced risk of catastrophic hemorrhage and life-threatening infection. These safety advantages are widely recognized by experts in the field of women's health, authoritative medical texts, peer-reviewed studies, and the nation's leading medical schools. ACOG has thus concluded that an intact D&E "may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman, and only the doctor in consultation with the patient, based on the woman's particular circumstances can make that decision." [ACOG Statement of Policy on Abortion (reaffirmed 2004)]

ACOG objects to the 2003 federal ban because it exposes women to serious, unnecessary health risks and does not include any exception to protect women's health. In addition, ACOG objects to the Act's vague and overly broad terms because doctors will be unable to determine whether their actions are prohibited by the Act. As a result, the Act will deter doctors from providing a wide range of procedures used to safely perform induced abortions.

"The term 'partial-birth abortion' was purposely contrived to be inflammatory," said Dr. Laube. "While proponents of this law say that it addresses a particular procedure, it has been specifically written to describe and encompass elements of other procedures used in obstetrics and gynecology."

In 2000, ACOG filed an amicus brief in Stenberg v. Carhart on behalf of the challengers to a Nebraska law that attempted to ban so-called "partial-birth abortions." The US Supreme Court struck down the Nebraska law, ruling that it violated the US Constitution by failing to provide any exception "for the preservation of the health of the mother" and being so broadly written that it could prohibit other types of abortion procedures such D&E, thereby unduly burdening a woman's ability to choose to have an abortion.

"Decisions involving pregnancy termination are among the most serious and personal that a woman will make in her life. As the medical specialists in women's reproductive health, we will continue to fight attempts to criminalize legitimate medical procedures," said Dr. Laube.

The American College of Obstetricians and Gynecologists is the national medical organization representing over 51,000 members who provide health care for women.