by: Paul V. Adams, M.D

The New Reproductive Technologies (NRTs) can provide many benefits for mankind but there are also pitfalls of which we must be aware. There appears to be a fundamental flaw in many of the procedures and this provides a threat to our concept of humanity and reduces respect for the intrinsic value of each individual human life.

This is a complex subject and it is impossible to cover the matter adequately in one article. However, in discussing the various procedures, it is well to base any decisions and recommendations upon certain principles which can be applied to all aspects.

• Human life begins at conception.
• Human life has intrinsic value and rights.
• The family consisting of a father and a mother with children is the desirable unit of our society.
• Consideration must be given to the rights, both social and psychological, of the children born subsequent to procedures such as in vitro fertilization.
• Doctors, researchers and biologists provide the means to the creation of new life. They are not the creators!

Developments in this difficult and complicated field proceed untrammelled and uncontrolled. There is a tendency to consider that because a procedure is possible, it should be used. Short-term benefits are frequently obvious whereas the long-term implications may be counter-productive for humanity, and for society in its broader context. Ethicists and moralists are almost always behind in responding to the technological changes. It is the nature of the situation. Nevertheless, it is important for doctors, politicians, lawyers, ethicists, philosophers and moralists to consider and re-evaluate the new technologies.

Some of the serious considerations in the area of NRTs are:

• Inadequate consideration of the humanity of each human conceptus during in vitro fertilization and intracytoplasmic sperm injection.
• Selection of certain embryos for implantation and discarding of others.
• Sex selection for medical and non-medical purposes.
• Buying and selling of eggs, sperm and embryos, including their exchange for goods, services or other benefits.
• Cryopreservation of embryos and decisions regarding their disposal.
• Germ-line genetic alterations.
• Extogenesis (maintaining an embryo in an artificial womb).
• Cloning of human embryos.
• Formation of animal-human hybrids.
• Retrieval of sperm or eggs from cadavers or fetuses for fertilization and implantation.
• Commercial preconception or "surrogacy" arrangements.
• Use of human sperm, eggs or embryos for assisted human reproduction procedures or for medical research even without the informed consent of the donor(s).
• Research on human embryos which may occur even later than 14 days after conception.
• Formation of embryos for research purposes only.
• Offer to provide or offer to pay for prohibited services.
• Patenting of human genetic material or other services related to human generation.
• Use of embryonic stem cells for research and treatment.

This list could be lengthened at this time and no doubt in the future it will include procedures which have not been imagined at the present time.

It is well to recall the already long, drawn-out discussion which have been held.

The Royal Commission on New Reproductive Technologies headed by Dr. Patricia Baird was formed in 1990, heard representative views from across Canada for three years, and subsequently presented its findings and recommendations to the federal government in 1993.

The Human Reproductive and Genetic Technologies Act (Bill C-47) was introduced in the House of Commons in 1996 and referred to the Standing Committee on Health following second reading. It prohibited 13 practices, including the buying and selling of eggs, sperm and embryos, or exchanging them for goods, services and other benefits. Due to the dissolution of Parliament in April 1997, this bill died on the order paper. It has not been re-introduced despite assurances by several members of the federal government that this will occur in the present session.

In the absence of any law in this regard, a moratorium on certain procedures was declared. However it is reported that not all the agreed-upon restrictions are being adhered to.

Further studies in this area include a 1995 paper entitled Research on Human Embryos in Canada - Final Report of the Discussion Group on Embryo Research submitted to Health Canada and a forty-seven page statement published by authority of the former Minister of Health in 1996. More recently, in 1999, Health Canada produced "Reproductive and Genetic Technologies Overview Paper"* as a basis for tabling a Bill.

Developments are occurring rapidly. It behooves the government to reintroduce a Bill regulating the New Reproductive Technologies in order to give a degree of control over this important aspect of humanity. We do need a good law but undue waiting will compound the problem. I believe a Pandora's Box has been opened by many of the developments of New Reproductive Technologies. However they are with us and we should respond positively and attempt to control abuses and lack of respect for the humanity of the conceptus by all legitimate means possible.

The "Reproductive and Genetic Technologies Overview Paper" produced in 1999 by Health Canada as a basis for tabling a Bill can be accessed on the internet ...

To express your concerns, please write the Minister of Health, Honourable Allan Rock, Room 441-S, Centre Block; House of Commons Ottawa, Ontario K1A 0A6 Fax: (613) 947-4276 E-Mail: Rock.A@parl.gc.ca

Excerpts compiled by: Janet Les

A five year update of "Of Life and Death", the final report of the Special Senate Committee on Euthanasia and Assisted Suicide, is to be released in June. Senate Subcommittee hearings * were held February 14 through April 4 to examine developments since "Of Life and Death" was tabled in June 1995. Chairman Senator Sharon Carstairs repeatedly emphasized that this Committee was not reopening the debate on assisted suicide and euthanasia, but that it was to deal strictly with the areas of the report where the original committee made unanimous recommendations.

Compassionate Homicide

The most controversial recommendation in "Of Life and Death" was that the Criminal Code be amended to include a third category of murder or a separate offence of compassionate homicide. A surprising revelation in the update hearings was made March 20 by Senator Corbin, a member of the original Senate Committee. Apparently this "unanimous recommendation" was made in his absence, and he strongly objected to it when it was published.

Mr Hugh Scher asked, on behalf of the Council of Canadians with Disabilities and as an intervener before the Supreme Court in the Latimer case, that the Senate committee delay the release of their report until after the Supreme Court hearing, due to the effect of the media on public attitudes and the potential impact on his community. The Latimer case is scheduled to start June 14.

Palliative care

Various experts testified that little improvement can be noted in end-of-life care in Canada since "Of Life and Death" recommended governments make palliative care a top priority. Senators were told that palliative care is still not a core service across Canada, insufficiently funded, often poorly coordinated, lacking in sufficient numbers of trained professionals, under provided in medical training programs, and in need of further research.

Dr. Harvey Max Chochinov challenged the committee to change the title of its report. "The title. ought to be 'The Senate Report on End-of-life Care in Canada.' A slightly more provocative title to consider would be 'End-of-life Care: A Crisis in Canadian Health Care.' Either title will avoid the possibility that the thrust of this report be misconstrued to have a euthanasia or assisted-suicide focus."

Lack of Political Will

".one of the impediments to moving the agenda forward. is, perhaps, a lack of political will. Unfortunately, in end-of-life care, we do not have a vocal constituency. The dead are no longer here to speak, the dying often cannot speak, and the bereaved are often too overcome by their loss to speak. That is a problem." Dr. Chochinov, Department of Psychiatry, University of Manitoba

The media factor.

"As long as 9 out of 10 stories on end-of-life care on television, radio and in the newspapers have to do with euthanasia and assisted suicide, it will be hard to support and sustain an agenda that will really improve the care on the bread and butter issues that affect dying people." Dr. Peter Singer, Centre of Bioethics, University of Toronto

Patients know the difference.

".patients and families understand what palliative care is when we very simply tell them what the term means in terms of comfort care. I had one patient many years ago who said: I have never heard the word, but it sounds like a 'pal' and do I ever need a pal. I will never forget him because he taught me that is what he needs B a pal with expertise. people understand that it is not acting with the intention to take life.

The thing we must say about euthanasia is that it means acting with intention to take life by a lethal injection. That is what it is.

My own view about focusing much on the euthanasia and assisted suicide issue is this B and we have also talked about this in the [Catholic Health] Association: If we had everything in place for quality end-of-life care in Canada, then that would be one thing. Right now, I find it almost immoral for us to talk about taking people's lives when we have not done the harder task which is to have palliative services in place for people." Dr. Elizabeth Latimer, Department of Family Medicine, McMaster University

* Complete transcripts of these hearings are available on-line at:  http://www.parl.gc.ca/36/2/parlbus/commbus/senate/com-e/upda-e.htm

Your thoughts on Palliative Care are invited: Canadian Physicians for Life Palliative Care Bulletin Board  www.physiciansforlife.ca/pallcare.html

Janet Les serves on the executive of the Euthanasia Prevention Coalition of BC and is Administrator for Canadian Physicians for Life .

By: Susan Martinuk

Over the past few decades, our society has successfully created the illusion that having an abortion is no big deal.

After all, it's the first option to be considered when a pregnancy is difficult, inconvenient or unwanted. It's the first step taken when an unborn child has physical or mental aberrations or is somehow imperfect. It's paid for by our tax dollars. It's readily available in its many forms and some governments are now poised to make the morning after pill (considered by many to be a form of abortion) available over the drugstore counter B without a doctor's prescription. Abortion is a protected right. It's a legal, 'medically necessary' procedure that has become remarkably common (statistics for 1997 show that one out of every four babies that is conceived is aborted).

No wonder there is a general assumption that abortion is safe.

Questions about the safety of abortion have been all but forgotten in the midst of 'much-more important' debates about individual rights. Yet, in recent months, a plethora of sobering information about the health risks associated with abortion has surfaced.

Last fall, an independent health researcher named Isabelle Begin completed an exhaustive and in-depth analysis of Statistics Canada's 1992-93 Hospital Morbidity file to determine that 3.8%, or one out of 25, women are hospitalized for complications after legally-induced abortion in Canada. According to Begin, the most common reasons for hospitalization were hemorrhaging, removal of retained placenta and/or conceptus and emergency blood transfusions, and the average length of the hospitalisation was two days.

These statistics are highly relevant to women's healthcare, yet they are not readily available, and indeed, were only obtained as a result of Begin's painstaking breakdown and search of hospital codes and procedures. Apparently, Statistics Canada and healthcare officials don't consider this information important enough to track, categorize and make readily available to physicians and the public.

Sadly, recording data on abortion and its ensuing complications appears to be a process that is ruled by political interests rather than medical significance, and therefore hospitalizations that result from abortion complications are listed under the complication only B not the initial reason for treatment. As a result, it is extremely difficult to obtain reliable data on the medical consequences of abortion.

This bizarre administrative reporting procedure is not limited to Canada. It actually stems from guidelines issued by the World Health Organization (WHO), which recommend that abortion deaths be categorised under the complication of the abortion procedure, rather than the abortion itself. As a result, it is impossible to code an abortion death and, for years, deaths related to abortion have been buried under WHO hospitalization codes.

Such data becomes even more relevant in assessing the full impact of abortion on women in the face of recent studies which suggest that the health risks to women are substantial and may even be life threatening.

Growing numbers of studies are confirming a connection between abortion and breast cancer. A 1996 meta-analysis by Dr. Joel Brind and published in the Journal of Epidemiology and Community Health initially provided overwhelming evidence of the link, however it has since faced considerable criticism. Interestingly, most attempts to discredit the study seem to be based more on ideology than science.

As proof, researcher Ian Gentles of The deVeber Institute for Bioethics and Social Research points to a study published in a recent issue of the American Journal of Public Health: "The report stated that induced abortion before age 20 was not associated with breast cancer. Yet, the authors based their sweeping generalization on a sample of only nineteen women. They made no comment on their discovery of a 20 percent increased risk, which although not statistically significant, pointed in the same direction as the twenty-eight studies analysed by Brind and others."

The third edition of Abortion's Aftermath, soon to be published by The deVeber Institute, examines the "spin doctoring" that occurs with respect to docu-menting the medical consequences of abortion, including the relationship between abortion and breast cancer. As a result of the politically-charged environment that surroundsB and currently controlsB the abortion debate in North America, medical researchers seem reluctant to acknowledge any negative information about induced abortion.

But it is a different story in Europe, where the Royal College of Obstetricians and Gynecologists in Britain recently gave public support to the connection between abortion and breast cancer by announcing that it found the evidence in Brind's study to be "credible" and stating that it should not be disregarded.

In March of this year, a study in the prestigious American Journal of Drug and Alcohol Abuse reported that women who have an abortion are five times more likely to report ÿ subsequent substance abuse than women who carry their babies to term. The report was co-authored by Dr. Philip Ney, a British Columbia psychiatrist who specializes in post-abortion counselling, and who states, "I have found that women with unresolved grief or trauma related to a prior abortion are more likely to feel anxiety, fear and depression during subsequent pregnancies."

As further proof of the psychological trauma related to abortion, the authors of the paper also pointed to a major study of death certificates and government medical records in Finland. Researchers found that suicide rates are six times higher for women who have had an abortion, when compared to women who have given birth.

Finally, a study in the December, 1999 Journal of the American College of Obstetricians and Gynecologists, demonstrated that women who abort their babies are twice as likely to have premature births in subsequent pregnancies and to have post-term deliveries (over 42 weeks). Dr. Suzanne Tough, an epidemiologist and researcher at Foothills Hospital in Calgary acknowledged the connection and told The Report magazine that "one previous abortion increases the risk (of pre-term birth) by 20% in Alberta." (Premature deliveries are at greater risk for birth defects, visual and hearing impairment, delayed speech, other disabilities and excessive illness.)

Attempts to suppress the publication and dissemination of this important data are disturbing, yet it is clear that the accurate reporting of medical research has become the latest victim in the abortion rights debate. 'Hiding' this important information on the medical risks of abortion may be a cheap means of achieving a political agenda, but it is ironic that in doing so, it subjugates the health well-being of women to feminist ideology.

The health risks to women are significant and may even be life threatening. As such, doctors and governments have an obligation to make women aware of these adverse outcomes. Further, as these risks are documented, it becomes legitimate and necessary for all of us to openly question whether abortion really serves the best interests of women.

Susan Martinuk is a Vancouver writer and broadcaster.

By: Dr. Arnold Voth

Death by choice means a death caused by a deliberate decision and act. Except for the ill and the dying themselves probably no two groups are more immediately affected by the controversy over death-by-choice than parliamentarians and doctors. Parliamentarians will be forced to deal with rewriting the law, if and when this becomes inevitable. I and my colleagues will be forced to live with the consequences of that law.

Death by choice may bring with it the repression of those who are opposed to it and coercion for both patients and health care providers.

Some coercion is already inherent in death-by-choice legislation. When death-by-choice is not legal or available, everyone has the right to remain alive, by default. If a person makes no decision at all, that person will be kept alive as long as this is reasonably possible. Once euthanasia or assisted suicide is an option, however, he or she is in the awkward position of having to justify his or her continued existence. Everyone knows that terminal care can be expensive. The presence of the option of death-by-choice immediately creates pressure to opt for it 'for the public good'. Does this kind of pressure exist in any verifiable way? In one survey of Dutch nursing homes, 93 percent of inhabitants were opposed to the idea of euthanasia and 95 percent were opposed to legalizing it. Fifty to sixty percent of those same inhabitants were fearful of involuntary termination. (Bostrom, B.A., Euthanasia in the Netherlands: A Model for the United States? Issues in Law and Medicine 1989, Vol 4:477)

These are sobering statistics. Do they have reason to be afraid or are they paranoid? They have plenty of reason to be afraid. Both voluntary and involuntary euthanasia are broadly supported by the Dutch public, that is, by those who are not old and ill. Dutch publications are full of opinion polls citing broad support among students, ordinary citizens, and even physicians, for involuntary euthanasia for a variety of reasons ranging from old age through incurable diseases and yes, even simple economic expediency (Fenigsen, R., A Case Against Dutch Euthanasia, Hastings Centre Report, Special Supplement 1989,25).

Does it apply in North America? All the writings by the various proponents of death by choice that I've read were reassuring about the absolute need to guard the conscience of the conscientious objector. Would they stick to this agenda once they found legislation going their way? The evidence is not reassuring.

Soon after the California referendum on death-by-choice, which was defeated, polls "showed support for Proposition 161 lowest among women, older voters, Asians and Blacks. It was highest among voters under 30 and those with post-graduate education and incomes over $75,000." In the discussions of sexual abuse of women patients by physicians, much importance is given the power imbalance between a male physician and his female patient. What about the power imbalance between the young and the old?

This raises the question that demands a straight answer - "Who is in favor of death by choice for whom?" If those who stand to gain the most by legalized death by choice are in favor of it for those who have most to lose by it - and who also constitute society's least articulate and least able to defend themselves in the public forum, how can coercion possibly be avoided? The message of the rich, young and favored to the less favored and especially the elderly is clear - "We think you old people should get out of the way."

Abridged from the Centre For Renewal in Public Policy Discussion Paper #1: Euthanasia: Definitions, Concerns and Proposals. Used with permission

Dr Arnold Voth is a specialist in Internal Medicine and chair of the Bioethics Committee of the Royal Alexandra Hospital in Edmonton.

By: Neil Munro

To secure the promised wonders of the biotech future - - the miracle cures and abundant, nutritious foods -- but to do so responsibly and ethically, politicians and scientists have put in place a web of laws and regulations intended to check the hubris of researchers and the greed of entrepreneurs. Often, these protections are effective. Sometimes, though, they are stronger than is useful -- and sometimes they are entirely illusory.

Notable among the illusory safeguards are the supposed curbs on the use in medical research of tissue from aborted human fetuses. Recent revelations about the trade in fetal tissue not only prompted a congressional hearing; they also revealed the relevant law to be a fabric of exemptions, obfuscations, and loopholes, with the result that the for-profit use of vibrant tissue from aborted fetuses is scarcely restricted. Because the law sounds strong on its face, and because the press and politicians are squeamish about the whole subject, the actual lack of oversight, regulation, or ethical limits on the exploitation of body parts from healthy fetuses by for-profit corporations and university researchers has passed largely unnoticed.

The developments leading to the House hearings began when Life Dynamics Inc., a pro-life organization in Denton, Texas, started looking into this ghoulish business. Eventually representatives of Life Dynamics placed documents such as fetal-tissue sellers' price lists in the hands of journalists and politicians, sparking a flurry of interest. Hearings ensued on March 9 before the Health and Environment Subcommittee of the House Commerce Committee. What they mainly exposed, however, was the utter ineffectuality of the existing legal restrictions on the fetal-tissue trade.

Given the flimsiness of the 1993 law and the strong political support on Capitol Hill for unrestricted research, the reality is that, when it comes to the use of body parts from aborted fetuses, all is permitted. In effect, the medical community and its overseers at the National Institutes of Health and in Congress have allied themselves with abortion defenders and biotech businesses to resolve an ethical conflict with a lawyer's trick: The mother's signature on a consent form wipes away all scruples. Thus a moral dilemma is being converted into a private choice and a corporate opportunity.

One reason this can happen is that the national media support this unseen conversion; they just don't want to admit it, any more than the politicians do. Least of all do they want to alarm members of the public, who would not believe what their government is condoning in their name. Then again, perhaps we modern citizens -- oops, I mean health care consumers -- do know at some level and have exercised our right to choose to ignore this unpleasant business, bent as we are on enjoying the medical breakthroughs that fetal-tissue researchers promise.

What seems undeniable is that ethical researchers should be willing to submit their work to public review. Skilled researchers, moreover, if motivated by conscience or required by law, could minimize their use of fetal tissue and perhaps obtain all they really need from fetuses who have died naturally. They could maximize their reliance on animal tissue and on the human cells and tissue now grown or stored in commercial tissue-banks -- even if they had to pay for it out of future profits.

These and other restrictions, including an international agreement, deserve to be considered, lest we autonomous citizen-consumers, by defining the very youngest humans as commodities, take a step closer to converting ourselves into commodities. If we take that step, the time will soon come when we in turn are judged surplus by market forces.  But by then, our experiment in commodification will be too far advanced for anyone to appeal to antiquated notions of citizenship and humanity. By then, our fellow consumers will no longer grasp the unscientific duty to protect life.

Excerpted from "The Use and Abuse of Fetal Tissue" Weekly Standard - April 3 , 2000/Volume 5, Number 28.   Used with Permission

The recent Euthanasia Symposium held in Toronto heard from disabled activists and health professionals regarding the need to counter efforts to legalize "Mercy Killing". The symposium explored why euthanasia is a pressing issue and what can be done about it.

Presenter Dr. Gregor Wolbring said the choice to have doctor-assisted suicide does not enhance the rights of the disabled, elderly or ill. Instead, doctor-assisted suicide and euthanasia target them. Thus the advancement of this agenda is anything but compassionate.

The symposium strategy session established committees to enlist and generate broad support, work on research and information distribution, fund raise, lobby government officials and establish media contacts. It called for a co-ordinated effort by civil rights groups, disability groups, churches, pro-life organizations and all concerned citizens to educate the public and demand that rights of the vulnerable be protected in law.

An E-mail group devoted to information concerning Euthanasia has been initiated. The goal is for this to be a forum to gather a diverse group of people and organizations together to form a national coalition opposing euthanasia.

To join, please send email to:  bioeuth-subscribe@egroups.com

Please inform others of these efforts - we need to hear from as many different perspectives as possible to win this battle. Further information can be obtained from Alex Schadenberg of the Euthanasia Prevention Coalition of Ontario Tel: (519) 439-3348 or 1-877-439-3348; Fax: (519) 439-7053

Editorial, The Calgary Herald, April 11, 2000.   Reprinted with permission

Edmonton Tory MLA Julius Yankowsky may have found the solution to the growing ethical dilemma facing pro-life health care professionals B choice.

Ironically, the survival of amendments Yankowsky has proposed to Alberta's human rights legislation likely hinges on whether his Tory colleagues are permitted to vote according to their consciences in a free legislative vote. A strategy committee of the government caucus, which meets behind closed doors, may decide whether individual choice will be allowed to prevailB or party group-think will be imposed on all Tory MLAs.

In early March, Yankowsky introduced a private members bill to protect health workers under a revamped Human Rights, Citizenship and Multiculturalism Act. A section would be added to prohibit employers from dismissing, disciplining, or refusing to hire health professionals who will not assist in any procedure that offends their beliefs in the sanctity of human life.

If the legislation passes, it will establish the rules up front. Health-care workers will be able to say "no'' without fear of reprisal . They won't have to face the uncertainty of a prolonged human rights inquiry to justify their position. Abortion services and drugs will still be readily available, but health professionals would not have to provide services against their consciences. Recent events show why the legislation is a common sense compromise.

Maria Bizecki of Concerned Pharmacists for Conscience worries workers may be fired or demoted if they refuse to fill prescriptions for abortion or so-called morning after drugs. Bizecki does not believe her pro-life members should have to fill such prescriptions.

Greg Eberhart of the Alberta Pharmaceutical Association says this ethical dilemma is addressed by the association's code of ethics. He says pharmacists aren't obliged to fill prescriptions if they have ethical objections. However, they are required to tell their employer of the conflict and recommend an alternative pharmacy.

Bizecki doesn't believe this is enough. Small wonder.

Last year, pro-life nurses working for the Foothills Hospital refused to come forward during a police investigation of late-term abortion practices involving babies with "lethal'' or "serious'' deformities.

Nurses approached the media anonymously with concerns that healthy babies were actually being born, then denied basic sustenance. Police were called in but rather than interviewing hospital staff, they waited for nurses to come forward. None did. It seems reasonable to conclude fear of being disciplined or fired contributed significantly to their refusal.

This was a very different situation from a decade ago when nurses who worked in the high-risk maternity unit could opt-out of assisting with genetic terminations.

The difference is ultimately what choice is all about. If Tory MLAs get a free vote on Yankowsky's bill, choice could well be restored.

The third edition of Abortion's Aftermath has seen a number of delays but will be completed this summer. Due to the amount of new material that has become available this version is greatly expanded to book length. According to researcher Elizabeth Cassidy and editor Denyse O'Leary there are serious problems with the scientific validity of research on the aftereffects of abortion on women. Often the research method seems designed to conceal rather than reveal findings and therefore does not promote women's health concerns.

Book Sample: Chapter 13 - Pre-existing Psychological Risk Factors

Key Points

• Women who have abortions are at risk of emotional difficulties after the procedure, especially those with pre-existing factors such as relationship problems, experiencing ambivalence about their abortion, who are adolescent, who had previous psychiatric or emotional problems, who are pressured by others into making a decision to abortion, or whose religious or philosophical values are at odds with aborting a pregnancy.
• The prevailing interpretation of post-abortion grief, depression, guilt, anger, and anxiety in abortion clinics and research studies in North America is that they are due, not to the procedure, but to a woman's pre-existing disposition to psychological problems.
• Where support through counseling is offered to pregnant women who are not sure if they should/can carry their pregnancy to term (such as in Sweden), they are more likely not to abort.
• Given the evidence that women in certain risk groups are more emotionally vulnerable after an abortion, should not abortion clinics and medical facilities give some consideration to recommending against abortion in their cases?
• Informed consent for the psychological well-being of women, post-abortion, is an issue which health care professionals should be concerned about.

The de Veber Institute for Bioethics and Social Research is responsible for producing this valuable resource, with funding from Canadian Physicians for Life. Your support of this project is appreciated.

Canadians are not aware of the importance of this American court case to the abortion debate here. Any partial-birth ban upheld by the US Supreme Court will allow us to reopen the Canadian debate with questions about why this procedure is legal here B regardless of whether we can get a Canadian abortionist to admit to doing it, and regardless of whether Statistics Canada has failed to document it. Some analysts say that Sandra Day O'Connor is the crucial swing vote on the US court. This is a cliff-hanger.    Will Johnston, MD

In the Supreme Court's most important abortion case since 1992, six of the nine justices voiced concern April 25 over a Nebraska law, similar to those in 29 other states, banning partial-birth abortions. "The state interest here is drawing a bright line between abortion and infanticide,'' Nebraska Attorney General Don Stenberg argued in seeking reinstatement of Nebraska's partial-birth abortion ban. "If a state can't ban a little-used, particularly barbaric procedure where other alternatives are available, then essentially the state can't regulate any abortion procedures."

But Simon Heller, representing a Nebraska abortion practitioner, said none of the state's purported interests "is sufficient to override ... a woman's interest in her health and bodily integrity.'' The Nebraska pro-life law, he said, is "so broadly written it could prohibit most second-trimester abortions'' and lead to making all abortions "more dangerous for women.''

Questions and comments from two key justices B Sandra Day O'Connor and Anthony M. Kennedy B indicated concern over the state law's sweep. Calling both methods "gruesome,'' O'Connor asked Stenberg, "Do you take the position that the state of Nebraska could also prohibit D&E abortions for pre-viability pregnancies?''

When Stenberg said he did not take that position "for purposes of this case,'' O'Connor shot back, "It is difficult to read the statute and think that is so.''

O'Connor also seemed to object to the lack of a pro-abortion "health exception" in the pro-life law. The Supreme Court's 1973 Doe v. Bolton decision set the pace for so-called "health" exceptions by defining them as practically any conceivable factor. Pro-life advocates have labeled this huge loophole as "abortion on demand."

Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer seemed to doubt the Nebraska law's constitutionality. Breyer believed partial-birth abortions are medically necessary and, if banned, no alternatives would be available. Stevens felt partial-birth abortions were the "most appropriate procedure" for a few women. Souter felt the Nebraska legislature made a "cavalier" decision that "overrode medical judgment."

Chief Justice William H. Rehnquist and Justice Antonin Scalia, who along with Justice Clarence Thomas voted in 1992 to let states ban all abortions, were clearly more sympathetic to the Nebraska law. Scalia discussed the "horror" of partial birth abortions, which he repeatedly described as taking "a living, unborn child'' from the uterus and "killing that unborn child.''

"The state could have been concerned about rendering society callous to infanticide ... the horror of seeing a live human creature outside the womb dismembered. Can't that be a valid societal interest?," Scalia asked.

Scalia pressed Heller closely on whether partial-birth abortion and other abortion methods were "distinctive procedures." Heller said that the law was deliberately written in a broad manner, so as to "prohibit not only D&X but also other forms of abortion."

Scalia asked Heller whether there was a legitimate state interest in "preventing the coarsening of matters through witnessing the destruction of a live human being outside the womb."

Heller responded that there was a "right to have an abortion by the safest possible means. . . Anytime a procedure is banned, the Court is banning the safest possible procedure possible for some women." He added that it "undermines the integrity of the medical profession to take away the best procedure available to a patient and her doctor."

Scalia again asked whether "society has an interest in preventing a callousness to infanticide." Heller responded, "To say that this procedure is horrific - any form of abortion could resemble infanticide by that standard."

Heller also attacked the law on the grounds that it did not include an exception for the health of the mother. Chief Justice William Rehnquist questioned Heller as to whether the health exception was questionable on the grounds that "there will be doctors who will say that there is always a health exception." Heller said that there was "no evidence that the statute has ever been misapplied."

Scalia asked Heller whether "if the slightest risk is involved in a ban of a certain procedure, does that mean that the Court cannot impose any limits after viability?" Justice Stephen Breyer responded to Scalia by saying, "Once we have identified that woman to whom there is a risk, then the risk is no longer insubstantial to her."

Led by O'Connor, Kennedy and Souter, the court said eight years ago in Casey v. Planned Parenthood that states cannot impose any "undue burden'' on that right. However, Nebraska's law is not an undue burden, Stenberg said, no more than Pennsylvania's 24-hour waiting period to get an abortion, which the court approved in 1992.

Ginsburg interrupted to say Nebraska's law B unlike the waiting period B is not aimed at protecting a woman's health or fetal life. "This law seems out of the bounds that this court has set for pre-viability regulation," she said.

In a legal brief, Nebraska Attorney General Don Strenberg described the procedure in grisly detail when he insisted that the Constitution does not guarantee a right "to literally tear the arms and legs off of living, unanesthetized, mid- and late-term, human children, and-or pull them from the womb, puncture their skills and suction out their brains."

Stenberg says that Nebraska's law and similar laws passed by 29 other states and Congress represent a broad-based response to an abortion method "widely viewed as outside acceptable medical practice."

Nebraska's law, along with those in Arkansas and Iowa, were invalidated by a unanimous three-judge panel of the 8th U.S. Circuit Court of Appeals. But a month later, another federal appeals court upheld partial-birth abortion laws in Wisconsin and Illinois.

The court's decision is expected by late June.

Source: Pro-Life Infonet April 24, 2000  Infonet is sponsored by Women and Children First. www.prolifeinfo.org/wcf