Partial-birth abortion – is it legally and ethically justifiable? Lessons for South Africa

• DOI: 10.10520/EJC-14256e9315
• Record Number: m_sajbl_v11_n2_a10
• Published date: 01 November 2018
• Pages: 96-101
• Author: F. Jogee
• Date: 01 November 2018

November 2018, Vol. 11, No. 2 SAJBL 96

REVIEW

‘Partial-birth abortion’ (PBA) is a US colloquialism for intact dilation

and extraction (D and X),[1] coined by conservative pro-life advocates,

who liken the procedure to infanticide.[2] Their reasoning is founded on

the erroneous belief that D and X constitutes the partial delivery and

subsequent murder of a full-term baby.[3 ,4] Conversely, D and X is a variant

of dilation and evacuation (D and E),[5,6] possibly the safest procedure

employed during late termination of pregnancy (LTOP), which refers to

abortions that occur after 20 weeks’ gestation.[7-15] The Centers for Disease

Control and Prevention have stated that on average, 1.3% of abortions

in the USA are LTOPs, of which D and Xs comprise fewer than 20%.[15]

D and Xs are carried out between 20 and 24 weeks’ gestation,[16] and

typically comprise four steps: cervical dilation; breech conversion; breech

extraction, excluding the fetal head; and cephalocentesis to induce

vaginal delivery of the intact fetus.[14,17] The defining feature of D and X

is cephalocentesis, which entails the removal of the intracranial contents

by way of a suction device, consequently preventing cervical injury by

reducing the diameter of the fetal skull prior to intact delivery.[9,10] Hence

D and X may be more advantageous than D and E,[14] which involves

fetal dismemberment that is known to increase the risk of maternal

mortality and morbidity.[11,12]

Nevertheless, D and X is federally proscribed except in life-

threatening circumstances, as per the US Partial-Birth Abortion

Ban Act of 2003.[18] Failure to comply with the provisions of the Act

will result in a fine, imprisonment of up to 2 years, or both a fine

and imprisonment.[18] The legality of the Act was brought before

the Supreme Court in Gonzales v Carhart[19] and scrutinised for its

perceived ambiguity; the Act proscribes surgical feticidal abortion

procedures comprising the substantial removal of the fetus via

vaginal delivery.[19] D and E encompasses fetal dismemberment

requiring substantial removal of the fetus through the vagina,

a practice that is explicitly proscribed by the Act, and therefore

DandE could be included under the ban, which could subsequently

impose an undue burden on women by restricting their reproductive

health choices.[19] The Supreme Court found the state to hold a bona

fide interest in fetal protection, and held that the Act exclusively

proscribes D and X; therefore, proscription is not unduly burdensome

to women.[19] Currently, D and X is proscribed in 32 US states.[13]

Currently, the US is the only country worldwide to legally proscribe

and criminalise D and X. [14]

South Africa (SA)’s Choice on Termination of Pregnancy Act No. 92 of

1996 (CTOPA)[20] is universally hailed as one of the most liberal pieces

of legislation worldwide.[21] CTOPA makes provision for LTOP after 20

weeks’ gestation once a physician, having consulted with another

physician or registered midwife, concludes that: the patient’s life is

at risk; the fetus is suffering from acute malformation; or the fetus

may be considerably injured upon delivery.[22-25] However, it does not

regulate feticide and abortion procedures.[14] Consequently, abortion

procedures may be employed at the discretion of a physician,

without legal repercussions.[14] This highlights the importance of

this evaluation of the reasons for the proscription of D and X, prior

to determining whether it is constitutionally and ethically justifiable

in SA.[14] The outcome of this evaluation could inform legislation and

policy on the regulation of feticide in SA.[14]

Fetal pain

Medical evidence suggests that the structures required to experience

pain begin to manifest during the first trimester,[14,26] and are

fully developed towards the end of the second trimester.[14,27] The

application of painful stimuli triggers a stress response between

18 and 20 weeks’ gestation, possibly causing neurodevelopmental

deficiencies,[14,28,29] hence the use of anaesthesia and analgesics

during fetal surgery.[14,30] Nonetheless, the fetus supposedly requires

up to 50 times the regular adult dosage of anaesthesia, since the

placental membrane creates a barrier between woman and fetus.[14,31]

This open-access article is distributed under

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 (faadielajogee@gmail.com)

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