Limiting D&E Abortions:  The Kansas Maneuver

By John A. Robertson

Anti-abortion groups have found another way to limit previously legal abortions.  Building on the analysis in Gonzales v. Carhart, the 2007 case upholding the federal partial birth abortion law, Kansas has now prohibited “dismemberment” of fetuses.  This law would ban dilatation and evacuation (D&E) of the uterus by banning piecemeal removal of fetal parts, which is the standard way of performing second trimester abortions.  Several other states have similar legislation in the pipeline.

While 90% of abortions occur in the first trimester when suction aspiration or medication abortions are available, most later abortions occur by D&E, which involves several passes into the uterus with forceps or other instruments to remove the fetus.  The fetus is ripped apart and removed piecemeal.  The Kansas law would require that the fetus first be killed in utero by a KCL injection, and then removed piecemeal.  Alternatively, labor could be induced so that a very early nonviable fetus is delivered whole and dead.  If it is breathing, it is then not resuscitated because it is too immature to survive.

Anti-abortion groups have chosen this path because the Gonzales court in finding a rational basis for the partial birth abortion (intact D&E) ban emphasized the gruesomeness of positioning the fetus so that much of its body would be outside the uterus leaving its head in the birth canal where it would be then crushed by manual manipulation to ease removal. While noting that standard D&E—which the Court recognized was an alternative to intact D&E–was also gruesome, it did not blur the line between birth and abortion as intact D&E did, with its partial removal of the fetus from the uterus before crushing the head did.

With this rational basis for the legislation, the only question was whether the intact D&E ban would create in all cases an undue burden on access to abortion.  Since a woman would always have as an alternative standard nonintact D&E or the option of first killing the fetus in utero before performing intact D&E, the Court found the law to be facially valid.  Instances in which there was a very clear health advantage to intact D&E could be handled on an as-applied basis.

The question for courts evaluating “no dismemberment” laws will be whether the law has a rational basis, and if so, whether pursuing that goal imposes an undue burden on women seeking second trimester abortions.  An explicit description of dismemberment does seem gruesome.  Since almost any conceivable state rationale will satisfy rational basis, Kansas should be able to jump that hurdle, even if it does not blur the birth process as in Gonzales.

But will it create an undue burden?  The illegitimate purpose prong of that test is very hard for litigators to meet, since preventing offense easily cloaks the law with a rational purpose.  Will it stop women from having abortions?  In most cases probably not, since the alternatives remain of in utero injection of KCL or induction of labor.  While each of those carry risks—extraversation of the KCL in the case of injection and insufficient time to await labor inducing drugs to work—these are less frequent.  If the situations in which those risks seem likely, the courts might find that an as-applied rather than facial invalidation approach would permit standard D&E to occur.

The Ninth and Seventh Circuits, however, have applied the undue burden test in a more active way, balancing the impact on women vs the importance of the state’s interest.  In those jurisdictions the balance might come out against the states.  Dismemberment in standard D&E is gruesome, but so are other methods.  A direct injection into the fetus’ heart to stop it or inducing labor of a fetus that will never survive are also gruesome, as are first trimester techniques such as suction aspiration and medication abortions.  Also, the impact on women of a ban on dismemberment will risk extraversation of the KCL or the longer period for labor to be induced.  A court comparing these interests could easily conclude that the burden on women is much greater than any advantage to the state.

The federal circuits in which these bans are likely are not as woman-friendly as the 9th and 7th circuits.  It may be a long time before the Supreme Court settles the matter of how active a reviewing court may be under the undue burden test.  The anti-abortion strategy to attack abortion incrementally appears to be working.  An anti-dismemberment law will be a further reduction of abortion rights in the United States.