Kansas Limits Abortion Method, Opening a New Line of Attack
April 08, 2015, 12:00pm


Kansas on Tuesday became the first state to sharply restrict or alter the most common technique used for second-trimester abortions, opening a new, emotionally charged line of attack by anti-abortion forces who hope to take it swiftly to other states.

A bill signed into law by Gov. Sam Brownback, a Republican and longtime abortion opponent, outlaws what it calls “dismemberment abortion,” defined in part as “knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus.”

The law does not use medical terminology, and its practical impact is uncertain, some experts said. But it appears to ban or require alteration of the method known as dilation and evacuation, which is used in nearly all abortions after the 12th to 14th week of pregnancy and is seen by many doctors as the safest and most convenient technique for most women.

In the procedure, the cervix is dilated with medication and the fetus is removed with forceps, often in parts. With a new legal approach intended to highlight what for many are uncomfortable aspects of abortions, groups like National Right to Life hope to expand their efforts.

“The Unborn Child Protection From Dismemberment Abortion Act is the first of what we hope will be many state laws banning dismemberment abortions,” said Carol Tobias, president of National Right to Life. “This law has the power to transform the landscape of abortion policy in the United States.”

A similar bill appears to be nearing passage in Oklahoma, and others have been proposed in Missouri, South Carolina and South Dakota. Julie Burkhart, the chief executive of the Trust Women Foundation and the South Wind Women’s Center in Wichita, Kan., said her group planned to challenge the law in court.

“We call it the ‘physician intimidation and criminalization act,’ ” Ms. Burkhart said. “This is unconstitutional.”

She said getting an abortion after 14 weeks would be harder in Kansas, but not impossible.

Laura McQuade, the president and chief executive of Planned Parenthood Advocates of Kansas and Mid-Missouri, said, “Kansas is now not only the sole state with this atrocious law; it also now has more restrictions on abortion than any state in the U.S.”

Nationally, nearly nine in 10 abortions are performed in the first 12 weeks of pregnancy, commonly using a vacuum method that would not be affected by the Kansas law. By some accounts, about 9 percent of abortions in Kansas could be affected.

Alternatives in the second trimester, like medically induced, nonsurgical abortions, are more dangerous for some women, can involve days of uncertain waiting and may require access to hospital facilities, said Dr. Kathleen Morrell, a gynecologist and obstetrician in New York and a fellow of Physicians for Reproductive Health, which defends abortion rights.

“When it is safe to offer a choice of induction or D and E,” she said, referring to dilation and evacuation, “my patients overwhelmingly choose D and E. They are able to be asleep and comfortable for the procedure and then can go home to their own beds at night.”

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It might also be possible, some experts said, for doctors to comply with the law by killing the fetus with an injection of the heart drug digoxin before starting a dilation and evacuation procedure. This is commonly done in very late abortions, after perhaps 18 weeks, but not earlier because, experts say, it seems unnecessary and adds uncertainties to the procedure.

Earlier in pregnancy, the fetus’s neurological system is just developing and by all accounts cannot feel pain, medical experts say. But in addition, the safety and efficacy of using digoxin earlier than 18 weeks into pregnancy have not been studied, and there are some indications that it could increase the chance of complications, said Dr. Colleen McNicholas, an obstetrician and gynecologist at Washington University School of Medicine in St. Louis, who spoke on behalf of the American Congress of Obstetricians and Gynecologists.

The Kansas law includes no exemptions for rape or incest, only to preserve a woman’s life or prevent irreversible impairment of a major bodily function. Doctors who violate the law could be charged with a misdemeanor on the first offense and a felony for successive violations.

“The law raises very grave constitutional concerns,” said Janet Crepps, a lawyer with the Center for Reproductive Rights in New York.

According to Supreme Court decisions, a woman has a right to an abortion until the fetus is viable outside the womb, often at around 24 weeks of pregnancy.

Whether the Kansas law can pass constitutional muster may depend on how severely it restricts the ability of women to obtain abortions.

The Supreme Court, in a 2007 decision permitting a ban on a technique known as partial-birth abortion, noted that alternative methods were readily available. In this case, the courts would need to determine whether the Kansas law, by shrinking access to abortions or requiring doctors to use methods they feel are less safe and effective, posed an “undue burden” on abortion rights.