New England Journal Of Medicine Publishes Perspective Pieces Responding To Supreme Court Ruling Federal Abortion Ban Constitutional

The New England Journal of Medicine on Thursday published three perspective pieces responding to the Supreme Court's 5-4 ruling on Wednesday to reinstate a federal law banning so-called "partial-birth" abortion, overturning the rulings of three appeals courts. Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Antonin Scalia joined Justice Anthony Kennedy in the majority opinion and Justices Stephen Breyer, John Paul Stevens and David Souter joined Justice Ruth Bader Ginsburg in the dissent. President Bush signed the Partial-Birth Abortion Ban Act (S 3) into law in November 2003. The Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation, and the Center for Reproductive Rights on behalf of four abortion providers filed lawsuits alleging that the law is unconstitutional because of the absence of an exception for procedures preformed to protect the health of the pregnant woman. In place of a health exception, the law includes a long "findings" section with medical evidence presented during congressional hearings that, according to supporters of the law, indicates the procedures banned by the law are never medically necessary. The law says a physician who performs the banned procedures could face criminal prosecution, fines and up to two years in jail. The law allows an exception for cases in which the life of the woman is in danger, but it does not permit doctors to use the procedure because they believe using another method would increase risks to the woman's health (Kaiser Daily Women's Health Policy Report, 4/19). Summaries appear below.

R. Alta Charo: The ruling marks "a significant change in abortion jurisprudence," with "women's health no longer paramount but rather societal morality and the state's interest in life even before the point of viability outside the womb," Charo -- a professor of law and bioethics at the University of Wisconsin-Madison and member of the Guttmacher Institute board -- writes in a NEJM perspective. According to Charo, the ruling "illustrates how fragile are the constitutional interpretations by which reproductive rights are guaranteed" (Charo, New England Journal of Medicine, 4/23).

Jeffrey Drazen: With "this decision, the Supreme Court has sanctioned the intrusion of legislation into the day-to-day practice of medicine," Drazen, a pulmonary and intensive care physician, writes in a NEJM editorial. "It is not that physicians do not want oversight and open discussion of delicate matters but, rather, that we want these discussions to occur among informed and knowledgeable people who are acting in the best interests of a specific patient," Drazen writes, adding, "Government regulation has no place in this process" (Drazen, New England Journal of Medicine, 4/23).














Michael Greene: The ruling has "cast a pall over those who practice reproductive medicine" by creating an "intimidating environment surrounding pregnancy terminations at more advanced gestational ages," Greene -- an associate NEJM editor and professor of obstetrics, gynecology and reproductive biology at Harvard Medical School -- writes in a NEJM perspective. Greene adds, "Both health care providers and patients should be alarmed by the current degree of intrusion by our government into the practice of medicine and even more so by the apparent trajectory that it seems poised to follow in the near future" (Greene, New England Journal of Medicine, 4/23).

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