How the Supreme Court got it wrong

This post contains both controversy and potentially icky medical details.  Don’t say you weren’t warned.


The final year timetable at my medical school included a one-week
refresher course in obstetrics and gynaecology.  On my first day there,
a woman was admitted for a late abortion.  Well into the pregnancy,
prenatal scanning had come up with a rare and tragic diagnosis – fetal

Anencephaly is a terrible congenital disorder where the cerebrum – the part of the brain responsible for thought, emotion, consciousness, everything above
the most basic and rudimentary brainstem functions – simply does not
develop.  The majority of affected fetuses die before birth; survival
beyond a few days is rare, and the disability in those who do survive
is profound and total.  Rather than carry a doomed pregnancy to term
only to deliver a dead or dying baby, this woman had been admitted for

Although this next paragraph is a diversion from what this post is
actually going to be about, there’s a point I’d like to make up front
here, because it is so often missed in this sort of discussion.  There
is a very understandable tendency to react to this sort of situation by
saying that of course a woman in this situation should have the option of aborting.  Of course she should abort.  And, in our rush to say these things, we can miss the subtle and absolutely crucial distinction between those two
statements.  It is all too easy to take it for granted that abortion is
the appropriate decision in this situation.  And, of course, for many
women it is; there is no doubt in my mind that parents faced with this
tragedy should have the option of ending the pregnancy there and then
if they feel that would be less difficult to deal with than what is,
after all, only prolonging the inevitable.  But one thing I have come
to understand is that this should be an option and not an assumption,
on anyone’s part, and that we must never forget that, as
counter-intuitive as it may at first seem, a woman may actually want to
continue the pregnancy. When the only time you will have with your child is those few months before birth, you may find that more, not less, of a reason for savouring every minute of those that you can.

I hope this woman’s choice was the right one for her and not one
that she had been pressured into; I have learned not to take it for
granted that this was the case.  I do know that whichever choice a
woman might make about such a horrible situation, I’d back her all the
way.  And I believe that whether or not she wishes to take the option
up, abortion should be available.  Which, theoretically at least, it
was.  The practicalities proved more difficult.

I forget the exact gestation, but it would have been the second half
of pregnancy, after the routine scans, and abortion at this stage is a
lot more technically difficult than in the first trimester.  This woman
faced the prospect of going through labour.  Difficult enough to get
through when you have the hope and joy of a live baby at the end of it
to sustain you; heartbreaking in this circumstance.  What was more, the
labour would have to be induced with prostaglandin pessaries.
Prostaglandin can be tricky stuff.  It can have unpleasant side-effects
– vomiting, diarrhoea.  It can bring on precipitate labour, with
horribly violent contractions.

Or, at the other extreme, it can fail to work at all.

When I left the wards on Friday, at the end of the week’s
attachment, the woman was still there.  Still not in labour despite
repeated prostaglandin insertions.  A five-day abortion that wasn’t
even over yet – not even started.  The gynaecologist sent her home to
rest over the weekend and try again the following week.  As we walked
away from the bedside, one of us asked what the options were for her if
the pessaries still failed to trigger labour.  “Hysterotomy,” he

Hysterotomy is a particularly risky type of Caesarean section, done
only when section has to be done several months before term.  Caesarean
section is normally done through the lower part of the uterus – I am
unsure of the precise technicalities involved, but, as I understand it,
this is the part that heals best.  However, because the lower part of
the uterus is the last part to start stretching out as the pregnant
uterus expands, prior to a certain gestation there just isn’t enough
lower part of the uterus there to cut into – it’s all still scrunched
down on itself in the bottom of the pelvis like a balloon not yet
inflated.  So the only way in is a longitudinal cut through the main
part of the uterus.  Any Caesarean is major abdominal surgery with the
prospect of a prolonged recovery and possible complications (something
we tend to forget in this day and age as they get more common), but a
hysterotomy is particularly likely to cause problems.  Hysterotomy
means a woman is going to be less likely to be able to conceive again,
more likely to develop pregnancy complications, and practically
guaranteed to need Caesarean section for any subsequent birth.  If that
woman didn’t go into labour and didn’t change her mind about not
wanting to continue this pregnancy, that was the only option left open
to her.

So what happened?  I have no idea.  That was the end of my attachment.  I’ve never known what happened to that woman.  I wouldn’t know her if she walked into my surgery now.  But I’ve never forgotten that horrible, horrible range of options.

If that happened today, that woman would have one more option open to her.  Intact dilatation and extraction.

The problem with later abortions (the technical problem, that is,
before anyone accuses me of trying to dismiss the ethical problems) is
that it is only possible to dilate a woman’s cervix so far without her
going through labour, and a fetus of the sort of size we’re talking
about here just won’t fit through a cervix that’s only part way
dilated.  Up to a certain point, it is possible to cut the fetus into
several pieces and get it out that way, but, by the time the pregnancy
reaches around 20 weeks, this is just getting too difficult to do
because of the size of the fetus.  (It’s also a pretty unpleasant
method for a woman aborting a wanted pregnancy for health reasons,
because this means she loses the chance of the one sight she could have
had of her baby).  Hence, for this woman, the only abortion methods
available to her at that stage of pregnancy were induced labour or
having her uterus sliced open.

However, some years ago, a gynaecologist by the name of Martin
Haskell came up with another alternative.  It is possible, just about,
to dilate a woman’s cervix far enough by instrumental means to get the body
of a 20-week-plus fetus out through it.  The problem is with getting the
largest part – the head – out.  And, hence, Haskell worked out the method known as intact dilatation and extraction, or IDE.  The gynaecologist dilates the cervix as far as surgically possible, turns the fetus around so that the body can be pulled out feet first as far as the neck, and makes an incision in the back of the head in order to remove the brain and collapse the skull.  At this point in development the skull bones are soft, not fused, and can slide over
each other – it’s possible to compress the skull enough to remove it through the partially dilated cervix while still leaving it in a state that can be restored afterwards so that if a woman wants the chance to
hold her child and say goodbye, the body is in a fit state for her to do so.

This procedure is technically difficult, and, needless to say, has risks.  However, so do other late abortion methods, and there is evidence that IDE is the least risky of the available procedures at this stage of pregnancy.  This may be particularly true in some specific circumstances – Cecily, for example, developed such devastating pre-eclampsia in her first pregnancy that it was not safe for her either to continue the pregnancy or to go through labour or hysterotomy. Women like Cecily, women like the one I saw on my gynaecology attachment, women who may need an abortion in the later stages of pregnancy for
whatever reason and who might not want or be able to go through labour, now have IDE available as an alternative.

Except in the USA.  Because, on April 18th, the Supreme Court outlawed this particular method of performing abortions.

And I do mean precisely that.  As the above link actually specifies, other methods of performing abortions at this stage of pregnancy are still available.  If you’re against abortion, or against late abortions, or believe that the grounds on which abortions are currently available should be limited, then I don’t agree with you, but I can still understand and sympathise with your viewpoint.  But this judgement is not about any of those things.  It is not about saving the lives of fetuses regardless of the cost to women, because it will not save the lives of any fetuses.  It will not prevent a single abortion (well, after reading Cecily’s story, I have to amend that to say that I suppose it’ll prevent abortions in those rare, tragic cases where a woman’s condition is so serious that she’ll die before she can get an abortion by another method). Under this law, abortions after 20 weeks can still be done, if the fetus is not yet viable or if severe disability is discovered post-viability.  What this law prevents – all that it prevents – is the use of this particular method to perform those abortions.

Which does, of course, raise the question of why in hell this particular detail was thought to be any of the Supreme Court’s business.

Several years back, I used to read and post to an Internet abortion debate group.  After about a year of all the same arguments going round and round with nobody actually caring that much what anybody else had to say because they’d already made up their mind and were too busy trying to yell their viewpoint even louder in the mistaken belief that this would convince anybody, I finally got fed up and left, but not before I had seen this particular topic (like every other abortion-related topic), come up a lot.  I read dozens of pro-life essays and opinions on why this technique was so awful and why it should supposedly be banned.  All of which has left me firmly convinced of one thing: The war on this particular type of abortion is a matter of propaganda.  It is about trying to shore up the Five Minutes Before Birth myth.

The Five Minutes Before Birth myth is a staple of pro-life arguments.  A classic example of the slippery slope genre, it runs something like this: There is no difference between a child Five Minutes Before Birth and a child Five Minutes After Birth.  Therefore, if abortion is legal, the logical and inevitable next step will be the legalisation of infanticide for any mother who decides on a whim (you know, as women do) that her child is an inconvenience.  And since we clearly don’t want that to happen, we have to guard against it by making abortion illegal.  QED.

As a teenager encountering the abortion debate, I believed all this passionately – clearly abortion had to be banned, since that was the only way to hold back the encroaching tide of people wanting to move the time limits later and later until it became legal to kill off anyone of any age group purely because their existence didn’t suit somebody else!  Until, of course, the one teensy flaw in this logic struck me – no such encroaching tide actually appeared to exist. Nobody was calling for abortion to be performed Five Minutes Before Birth or for wholesale infanticide Five Minutes After.  In fact, although abortion had by then been legal in the UK for twenty years, the time limits hadn’t budged.  Maybe the collective psyche of society actually drew a much clearer distinction between abortion and infanticide than the pro-lifers wanted to make out?

The Five Minutes Before Birth myth was trotted out regularly on the aforementioned debate group, and just as regularly shot down by pro-choicers calling for any examples of any cases, ever, where any woman actually had foregone the opportunity to get an earlier abortion in order to go through the whole of an unwanted pregnancy and practically all of labour and then change her mind in the final few contractions.  The only ‘example’ anyone ever managed to come up with in response was that of a case where a woman whose fetus was found to have fatal defects was induced at eight months and a Do Not Resuscitate order placed on the baby once born.  As the late Molly Ivins so beautifully put it, no woman seven months pregnant ever waddled past an abortion clinic and said “Oh, darn!  I knew there was something I’d been meaning to get around to!”

And then, along came IDE.  And pro-life propagandists seized upon the opportunity to breathe new life into the Five Minutes Before Birth myth.  Stretch the definition of ‘birth’ some way past what’s commonly understood by the term in order to rename IDE ‘partial birth abortion’; spin a bunch of misleading propaganda around it; and, behold – you can make it look as though the scare stories were all true and women are having abortions Five Minutes Before Birth after all!

I don’t mean to imply that the majority of pro-lifers are manipulating the facts that cynically.  I think that while some of the people writing this propaganda must know exactly what they’re talking about, they are the very small minority.  Most of the people who are against IDE have simply fallen for the spin.  They genuinely believe that it has something to do with full-term abortion. On reading the Supreme Court’s definition of IDE as a procedure in which a doctor ‘deliberately and intentionally vaginally delivers a living fetus until, in the case of a headfirst 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, for the purpose of performing an overt act (usually the puncturing of the back of the child’s skull and removing the baby’s brains) that the person knows will kill the partially delivered living fetus’, I can imagine exactly what I’d have been thinking if I knew nothing about the procedure – if a doctor’s already delivered the fetus part way, why on earth not just deliver it the rest of the way instead of killing it? And I’d be easy prey for pro-lifers who wanted to convince me that it was all a loophole to allow the killing of viable fetuses during birth, a loophole that desperately needed closing.

But if the Supreme Court justices did some research into what they were talking about before passing judgement, then they must have known that this wasn’t so.  They must have known that it isn’t any sort of ‘loophole’, but a simple result of the mechanics of the procedure – the head is bigger than the body, and so just because a fetus has been partly delivered by this method does not mean that all you have to do to deliver it the rest of the way is pull a little further.  A head of this size will not come out through a partly dilated cervix without being collapsed first, and a woman’s cervix will not dilate fully without labour.

They must have known that although labour induction and hysterotomy might be perfectly viable alternatives on paper, the extra risks, problems, and potential unpleasantness associated with them mean that they aren’t simply an oh-well-just-do-things-this-way-instead substitute.

They must have known that IDE has nothing to do with “full-term abortion” or “abortion up to birth” – not just because of the absence of women actually wanting to go through an entire pregnancy only to request an abortion at the very end, but because it is not physically possible to use this method that late in pregnancy.  You can’t get a full-term fetus out through a partly dilated cervix like that – it’s just too big.

They must have known that just because a fetus is capable of surviving for a minute while it’s pulled out of the womb does not mean it’s viable in any meaningful sense of the term. They must have known that the choice in a late second-trimester abortion, or in an abortion where the fetus has been found to have the kind of birth defect I described above, isn’t between killing a baby and inconveniencing a mother.  It’s between giving a non-viable fetus a possible few minutes of gasping for breath outside the womb and sparing a mother a procedure likely to be worse and riskier for her than the alternative.

They must have known, for that matter, that their description of an abortion method in which the fetal head is delivered first only for the doctor to puncture the skull refers to no abortion procedure known, and doesn’t exist outside the more hopelessly lurid and inaccurate forms of pro-life propaganda. (For crying out loud, where did they get this stuff?)

So – did they not know these things? Did they really not bother to do the research, hear from the other side, find out the answers to the natural questions before passing this law?  Because that’s the only way they could possibly not have known. Or did they know and not care?  After all, this new law only affects women.  Worse than that, it only affects That Sort Of Woman – you know, the sort who wants a late abortion.  And, gee, who cares about them, the unnatural unmaternal bitches.

I know that if anyone actually finds and reads this post, the chances are high that somebody will use the comments section to tell me all the reasons why I should be against abortion.  And I repeat one more time, in case anybody missed it before: This is not about being for or against abortion.  It is not about saving fetuses, because it won’t save any fetuses.  It is not about preventing abortions up to birth, because they weren’t happening anyway.  It is not about preventing abortions after 20 weeks, because they are going to continue to happen anyway.  It is about stupid, petty, pathetic political point-scoring, carried all the way to the highest level, regardless of the cost for women.   And for some women, that cost is going to be very high indeed.


Filed under Grr, argh

9 responses to “How the Supreme Court got it wrong

  1. SSM

    This article should be required reading for anyone wanting to ‘debate’ the Supreme Court’s womanhating, know-it-all dccision. Like you said, it will not stop one single abortion (unless the woman dies first), what it will do is ensure that anyone having to have an abortion will be ‘punished’ for her choice. After all, that’s what they want, for abortion to be as humiliating, horrific and demeaning as possible. I’m sure a lot of anti-choicers think that some women see having an abortion as like having their eyebrows waxed. They fall for the spin, and the downright lies put about by fundamentalists, while women have a hard choice made even harder by poster campaigns, demonstrations, and the removal of choice.
    I’m not making much sense, I’m on a lot of painkillers!
    I’ve bookmarked this, and I’m sure I will use it in many debates in the future.
    Thank you. The truth needs to be told. In the meantime I hope we remain able to have choices here in the UK. Did you hear about the 17 year old girl in Ireland carrying the anencephalic foetus who’d been denied an abortion?

  2. Liz

    I thank you for this, too. As you say, it won’t make a bit of differencee to the arguments of the pro-lifers but it’s given me some information I wouldn’t know otherwise. The emotive arguments of the anti abortion brigade are insidious and sometimes hard to refute. Hard information like this is very valuable.
    Personally, I have been pro-legal abortion all my life being old enough to have had several friends who suffered through illegal abortions when we were younger. Being the mother myself of a baby born premature through pre-eclampsia, I have also rejoiced at the “pushing back” of the date of viability – until it dawned on me that my belief in abortion came into conflict with my believe in efforts being made to save tiny premmies. This helps to clarify my confusion – a bit.
    We both know that common sense and hard information are wasted on pro-lifers. Nevertheless, there must be a lot of “undecided’s” out there who could really use information like this. Thanks again

  3. V Samuel

    Thank you for this incredibly informative article. No, I had not understood about the limitation on cervix dilation and no, I didn’t understand the situations this method of abortion is used in. It’s not like I didn’t have a cervix and practical experience of exactly how hard it is to get a baby down a birth canal. In defence of my ignorance, I must say that in practice it is difficult to get calm, measured factual descriptions about when late abortion is considered and that changes everything. There is just something about this whole subject which short-circuits rationality and fails to grasp that the facts change decisions and that only the people involved are really in a position to make an informed decision anyway. If nothing else, you’ve shown me how much I don’t know.

  4. V Samuel

    Here’s the Guardian article on the Irish case.,,2076340,00.html
    The right of free movement is an EU one, guaranteed by membership of the European Union. There are exemptions, which is why football hooligans can prevented from travelling.
    In the case of cojoined twins (UK, not Ireland) it was asked at first if the child Mary qualifed as a separate person at all on the basis of what organs she had. In her case, she had what was argued to be a brain and so the court had to go on to rule on whether the separation procedure would lay the surgeons open to a charge of manslaughter, as she could not possibly survive the operation. The court held that had there been no brain, there would be no person.
    What is quite surprising in the Ireland case is the classification of this as an abortion. Not everything which can be in a womb is a person, and this feotus without a head would seem to fail that basic test of having enough organs to constitute a person at all.
    Some of the protesters seem to be under the misapprehension that there is a viable feotus. The only remaining question, best answered by doctors in technical terms and the woman by her own lights, is whether she would be better advised to go to full term, or to have a termination now.
    Dealer’s choice. Thank the Lord it is not one I have faced

  5. Hello
    I found your post really interesting and informative. When I posted about my abortion I allowed open comments. It was the pro-lifers who were the most closed to debate. I wasn’t looking for people to side with me and agree with my actions but I did want logical debate. I understand the pro-life movement and why they are against abortion. I even agree with them on certain points but when you are the woman carrying an unwanted pregnancy, it can be a health issue even if the pregnancy isn’t a risk to your physical being. Mental health is as important and it is that issue that the pro-life movement often forgets. It is one of those debates that isn’t actually a debate. It is two sides barking at each other while the women who are living the debate get on with it.

  6. Stunning post. I think it has cost me my friendship with my best friend of 10 years, she cannot reconcile her faith with being friends with someone who will provide care for women is situations like Cicely’s.
    But this post is important. Keep writing.

  7. Just wow.
    I’m going to link this in, and I hope people read it.
    Thank you.

  8. This is really amazing. My good friend made the extremely hard decision to terminate her pregnancy at 20 weeks after her amnio came back positive for Downs. ( The procedure that they performed was an IDE – when she was close to 22 weeks pregnant. Less than a month later, it was outlawed.
    She called me the day that she read the article on the front page of the newspaper in tears … wondering what she would have done if that option had not been available to her??
    It’s all so very sad.

  9. My brain isn’t keeping up with my fingers typing … here’s the correct link:

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