Editor’s Note: This article contains descriptions of human dismemberment caused by second-trimester abortions.
A bizarre spectacle unfolded this week in a federal district courtroom in Austin, Texas, where a group of abortion providers argued they shouldn’t have to kill a fetus before dismembering it in its mother’s womb, and the state argued that they should.
At issue is a state law passed earlier this year, Senate Bill 8, that would ban live dismemberment abortions. A live dismemberment abortion is exactly what it sounds like: a doctor uses forceps to tear apart a live fetus, limb by limb, and remove it from the mother’s uterus. This is usually done in the second trimester, when the fetus is too large to be suctioned out.
The law in question wouldn’t ban such a procedure, but it would require abortion doctors in Texas to ensure that a fetus is dead before they dismember it. The case, Whole Woman’s Health v. Paxton, hinges on the constitutionality of the Texas law and marks the first time the merits of such a statute have been considered at a trial.
Other states have passed similar bans of live dismemberment abortion, and some of those laws have been challenged in court without proceeding to the trial phase. Arkansas and Alabama immediately appealed temporary restraining orders against their bans, forgoing trials at the district court level. Texas did not, opting instead for a five-day trial before federal district court Judge Lee Yeakel, which concluded Wednesday. No doubt Texas Attorney General Ken Paxton wants to build a record in anticipation of an eventual hearing before the U.S. Supreme Court.
Dozens of abortion providers from across the state claim the Texas law effectively bans second-trimester abortions. There is simply no way, they say, to ensure the death of a fetus prior to dismemberment in a “safe and effective” way, so the law creates a substantial burden to a woman’s constitutional right to abortion.
The state claims there are a number of safe and effective means of ensuring the humane death of a fetus prior to a dismemberment abortion, and that the law in question serves legitimate state interests in reducing fetal pain, treating the unborn in a humane and dignified way, and maintaining professional standards for Texas physicians who perform abortions.
Hence the bizarre spectacle. Attorneys for the plaintiffs argued this week that there’s nothing wrong with dismembering a live fetus, while attorneys for the State of Texas have been at pains to demonstrate just how “safe and effective” it is to kill a fetus before dismembering it in utero. You can inject a chemical called digoxin into the unborn child. You can inject potassium chloride directly into the child’s heart, which causes it to stop beating within minutes. Or you can simply sever the umbilical cord and allow the child to bleed to death. It’s all rather straightforward.
No Wonder We Euphemize Abortion
In a court case like this, everyone meticulously employs medical jargon and euphemism. A dismemberment abortion, for example, is called a “dilation and evacuation,” or simply D&E. (The idea is to refer to what’s being done to the woman’s cervix and uterus rather than what’s being done to the fetus.) Speaking of the fetus, the favored term for what happens when it’s killed is “fetal demise.” Expert witnesses and attorneys on both sides in this trial have discussed at length the question of fetal demise. How can fetal demise be accomplished safely and effectively? What complications might arise from causing fetal demise? How often does an injection of digoxin fail to bring about fetal demise? Is fetal demise medically necessary?
The purpose of such language is to hide from ourselves the horrifying reality of we’re talking about. One expert witness for the plaintiffs, Dr. Mark Nichols of Portland, Ore., corrected a state’s attorney’s offhand use of the phrase, “unborn child.” “That’s not the term we use,” he said. “That’s not the medical term.” Sometimes, Nichols said, doctors will cause fetal demise prior to performing a second-trimester abortion to guard against “extra-mural delivery,” which is when a baby that’s supposed to be aborted is instead born alive—an event that can “cause distress” to the patient (the mother, not the unborn child). Later, he spoke of “removing parts of the pregnancy,” by which he meant ripping the limbs off a live human being. No wonder we speak of such things in euphemisms.
Although not everyone does. In the course of giving expert testimony for the state on Monday morning, Dr. Anthony Levatino dropped the pretense of medical jargon and euphemism—and he had his reasons. On the stand, Levatino explained that when he graduated from medical school in 1976 he was pro-choice and didn’t give much thought to the morality of abortion. From 1980 to 1985 he performed about 1,200 abortions, including approximately 120 dismemberment abortions.
Levatino doesn’t do abortions anymore. He stopped performing them after his daughter, two months shy of her sixth birthday, was killed in a car accident in front of their home. She died in his arms on the way to the hospital. Within weeks of her death, he had to perform a previously scheduled dismemberment abortion. When he ripped out the first body part, he stopped short.
“I didn’t want to continue,” he said. “But I had to because you can’t leave any body parts in the woman. We don’t pile up body parts on the table to be gruesome, we do it to keep inventory. If we don’t get all the parts out, the woman will get sick, get an infection, she could even die.” Dr. Levatino added that when he looked at the pile of body parts he’d removed from that woman, “I didn’t see the woman’s right to choose or the $800 cash I’d made in 15 minutes. I saw somebody’s son or daughter.”
He went on to describe a 20-week-old fetus as being about the size of the palm of an adult hand, from fingertip to wrist, “not counting the legs.” A dismemberment abortion, he explained, involves reaching into a woman’s uterus with forceps and “grabbing whatever is there. Maybe you rip off a leg, which is about four-inches long,” then you pull out “an arm, the spine. The skull is the most difficult part. Sometimes there’s a little face staring up at you.” He understandably called it “an absolutely brutal procedure, in which a living human being is torn to pieces.”
Abortion Is Based On A Monstrous Lie
Proponents of abortion have always had to contend with the problem that it’s based on a monstrous lie: a fetus is not really a human being, and abortion amounts to nothing more than removing a tumor or a glob of unwanted tissue, not killing an unborn child. The lie was never all that convincing, and abortion advocates managed to triumph in Roe v. Wade despite the lie, not because of it. But in the 44 years since Roe, the grisly truth about abortion—that it’s the straightforward taking of a human life—has steadily eroded the lie. The longer abortion persists, the more it seems outrageous and barbaric.
Our laws have gradually come to reflect this. Although the landmark 1992 Supreme Court case Casey v. Planned Parenthood reaffirmed the central holding in Roe—a woman’s right to privacy under the Due Process clause of the Fourteenth Amendment includes the right to abortion—it opened the way for states to regulate abortions in the first trimester or at any stage before fetal viability, as long as they don’t impose an undue burden on a woman’s right to abortion.
The crucial shift in the court’s ruling in Casey was twofold. It recognized that advances in medical technology had shown that a fetus could be considered viable at 22 or 23 weeks, as opposed to the 28 weeks set forth in Roe, and that the state had a legitimate interest in the “potentiality of human life,” which could include completely banning abortions after viability.
In 2003, Congress banned partial-birth abortions, or “intact dilation and extraction,” a term that, like dilation and evacuation, obscures the grisly reality of the procedure. In a partial-birth abortion, a living fetus is delivered feet-first and its skull crushed before its chin clears the uterus, inches before the completion of live birth. In the later stages of pregnancy, a partial-birth abortion isn’t much different than simply killing a newborn infant as it emerges from the womb. Before the ban, such abortions were usually performed in the second trimester, after 15 weeks and up to the point of viability. At the time of passage, Congress rightly called it “a gruesome and inhumane procedure,” and noted that 27 states had already passed laws banning partial-birth abortions.
In 2007, the Supreme Court upheld the ban, ruling in Gonzales v. Carhart that the federal law did not impose an undue burden on a woman’s right to abortion. Writing for the majority, Justice Anthony Kennedy noted that the law “expresses respect for the dignity of human life” and affirmed the government’s interest in protecting the integrity of the medical profession. “The government may use its voice and its regulatory authority to show its profound respect for the life within the woman,” Kennedy wrote.
In her dissent, Justice Ruth Bader Ginsburg argued, quite remarkably, that there is really no difference between partial-birth abortion and dismemberment abortion. “Nonintact D&E could equally be characterized as ‘brutal,’” she writes, “involving as it does ‘tear[ing] [a fetus] apart’ and ‘ripp[ing] off’ its limbs.” (But of course for Ginsburg, this is a reason not to ban dismemberment abortion but instead to preserve partial-birth abortion.)
Like Casey, Gonzales was an important development in abortion jurisprudence because it acknowledged that the government has a legitimate interest in respecting the life of the unborn, that a fetus is not simply a tumor or a clump of cells to be cut out or removed however an abortionist sees fit. Implicit in Gonzales, much like federal and state fetal homicide laws that impose additional criminal penalties for violent crimes against pregnant women, is the recognition that a fetus is in fact a human life and that how you take that life matters. In fact, in his majority decision, Kennedy says outright that dismemberment abortion “is a procedure laden with the power to devalue human life.”
Describing Dismemberment Abortion Exposes Its Horror
That brings us to the current case in Texas. In his closing statement Wednesday, Darren McCarty, lead counsel for the attorney general’s office, said that Senate Bill 8 isn’t a ban on dismemberment abortion, but only regulates “the moment of death—the moment, and nothing more. Is the lethal act going to be dismemberment, or an injection, or the snip of the umbilical cord?” He added that banning live dismemberment, as the law does, is not a step backwards but “a sign of progress in society.”
In a brief for the district court before the trial, Paxton argued that “We have reached a point in this particular technology where there is no possibility of denying an act of destruction. It is before one’s eyes. The sensations of dismemberment flow through the forceps like an electric current.”
Janet Crepps, the lead attorney representing the plaintiffs, didn’t see it that way. Live dismemberment abortion is an “advancement” for women, she said, because the procedure doesn’t take as long as it would if the state required fetal demise beforehand. In fact, she argued, Senate Bill 8 offers no benefits whatsoever to women seeking an abortion, because causing fetal demise prior to dismemberment is not “medically necessary.” Therefore, any additional burden the law might impose should render it unconstitutional. The fetal demise requirement, she said, “is part of a larger scheme to restrict abortion by banning it one procedure at a time.”
No doubt, plenty of lawmakers in Texas would like to do just that. But in the meantime, treating the unborn with dignity and humanity should be a bare minimum. After all, criminals on death row are not dismembered alive, nor are animals condemned to be euthanized. As McCarty noted in his closing, “it would be a great irony if the constitution that required the humane execution of criminals would ban the state from requiring the humane death of an unborn child.”
In the meantime, the Texas Legislature is determined to shine a light on what really happens in abortion clinics across the country. The Texas lawmaker responsible for the parts of Senate Bill 8 being challenged in federal court is Rep. Stephanie Klick, a registered nurse and medical consultant from Fort Worth. She attended much of the trial this week, and at one point told me that when she laid out the bill on the floor of the Texas House some people found out for the first time about dismemberment abortion. She said one woman approached her and explained that she’d had an abortion at 17 weeks, and wanted to know if that’s what they’d done to her. “I said, ‘Do you want to know the truth or do you want to feel good about your decision?’ She said, ‘No, I want to know the truth,’ and I said it’s very likely that you had a dismemberment procedure done. She was horrified by that.”
Klick also said that some Democrats voted for the bill who had never voted for anything pro-life in the past. “This procedure is so heinous that’s it’s changing hearts and minds when the public learns about how horrendous it is.”
