Lifewatch: The Politics of “D & X”: A First Step?

I have encountered them in Boston, Washington, Cleveland, San Francisco, and they are, overall, a formidable lot: alert, savvy, doggedly loyal, with the imagination to look ahead and see the dangers lurking beyond the bend in the road. They are, in short, the readers of this magazine.

And they seemed to have become quite attuned to the interest that has suddenly sprung up in our politics to begin considering some “modest first steps” in the restriction of abortion. The readers of this space have identified me with that strategy, and the project seemed to be given a new fillip when I restated the argument in a piece in the Wall Street Journal at the end of March. The mail coming in from all parts of the country—from Michigan, Hawaii, and New York—confirmed the assumptions behind the strategy: For many people it still comes as jolting news to learn that abortions can be performed in this country throughout the length of the pregnancy. A proposal that simply breaks out that news to the public already helps to prepare the public mind for the reception of new measures, and it may induce public men and women to begin speaking again in public on this question.

And no small part of this rationale for this approach was to restore public speech to our political class. As our readers know, my own, favored plan was to start at the place that would be the easiest for our own politicians to talk about abortion, without stammering, and without political costs: They could begin merely with saving the lives of the children who survive the abortions. That would be a hard proposal even for the Christie Whitmans and the Pete Wilsons to resist, and yet, if they could make even that concession to us, they would take a step that leads to the unraveling of their position. For with the commitment simply to preserve the lives of the survivors we would establish these critical points: that the claim of the child to the protection of the law cannot pivot on the question of whether anyone happens to want her; and that the right to an abortion need not mean the right to a procedure that guarantees a dead fetus.

But part of the purpose of this proposal, also, was to draw in members of Congress, with the easiest of steps, and encourage them to begin legislating again. As they did that, they would remove the problem of abortion from the exclusive governance of the courts. They would take up again their responsibilities, as members of the political branches of the government, to act as interpreters of the Constitution. Even now, this point seems to be dimly understood, even by activists in the pro-life movement. But if other proposals could produce the same ends, if they could move politicians at the national level to begin speaking in public on abortion, then many of us would affably lend our support. By the end of April, there did seem to be a proposal of that kind, which had been ripening in the Congress, and it now seems to command a broad interest on the part of pro-life congressmen. This is the proposal to ban, outright, the infamous procedures that mark the so-called “D & X” abortions (from Dilation and Extraction).

This is easily confused with the “D & E” abortions (for Dilatation and Extraction), a procedure that involves the removal of the child in pieces. D X’s were meant as an improvement over D & E’s, for late abortions (around 20-26 weeks); and the D & E, in turn, had been heralded as a procedure notably safer than the alternative methods of injecting saline or using prostaglandins. With these latter procedures, there would be contractions, and amplified, lingering pain. With the D & E’s, the child would be dismembered, and there would be a need to deal with the vexing problem of crushing the head, for the head often proved the most difficult to remove. Beyond that, there was the occasional need to return to the uterine cavity, to deal, as they say, with matter imperfectly removed.

Against the background of this experience, Dilation and Extraction offered a dramatic difference. It would remove the child in one piece—or sort of. There was still that matter of the head, and this is where the D & X would make its distinctive contribution. On this matter we have been given the most direct account of the procedure in a paper done in 1992 by Dr. Martin Haskell, who brought to his description the experience of performing over 700 of these procedures. But his account is a model of artless candor, and one could hardly to better than to let him speak for himself:

“With a lower extremity [of the fetus] in the vagina the surgeon uses his fingers to deliver the opposite lower extremity, then the torso, the shoulders and the upper extremities. The skull lodges at the internal cervical os. Usually there is not enough dilation for it to pass through. The fetus is oriented dorsum or spine up. At this point, the right-handed surgeon slides the fingers of the left hand along the back of the fetus and ‘hooks’ the shoulders of the fetus with the index and ring fingers … Next he slides the tip of the middle finger along the spine towards the skull while applying traction to the shoulders and lower extremities. The middle finger lifts and pushes the anterior cervical lip out of the way.

While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.

[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening.

The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.”

In short, the brains are literally sucked out of the child. But the cool detachment in the writing actually belies the experience of these surgeries. The same researchers who have commended these procedures to the public have found this persisting theme: The D & X shifts the burdens and trauma from the pregnant women to the doctors and nurses. Two physicians who perform D & E’s remarked that they “support each other and rely on a strong sense of social conscience focused on the health and desires of the women.” They rely, that is, on the doctrine of “women’s rights,” or the “right to an abortion” to steel themselves, and to look past the things that are instantly evident to the senses.

But for the same reason, the pro-life movement sees a particular advantage in directing the gaze of the public on these unsettling things, which have made such a vivid impression on the doctors and nurses. And no small part of the purpose behind this legislation is to bring these scenes to the public: A legislative measure provides the occasion for hearings, and the hearings provide the occasion for showing the pictures. Of course, we can count on the fact that the networks will regard the pictures as far too inflammatory to be shown. But we now also have the presence of C-Span, offering a full, unedited coverage of the hearings. As the pro-life leaders understand, the educational value of these hearings may be quite as important as the effect of the legislation itself in forbidding procedures that are ghoulish. This measure would draw in the Congress, to take a critical first step that actually forbids some abortions. And with that measure, the Congress would reach, with its regulations, into the second trimester of a pregnancy.

But the dazzle of these prospects may also be distracting the pro-lifers in Congress from the problem, or the “catch,” that threatens to undermine this project. That problem runs back to the reasons that brought forth the D & X’s in the first place: They were arguably safer for the pregnant woman, with less loss of blood, less risk of infection, less pain, and above all less trauma and psychic fallout. In the newspeak of the doctors, it was less assaulting to the “mental health” of the patient. A bill to forbid D & X’s has been advanced recently in Ohio, with considerable skill and resourcefulness. But the bill in Ohio has run into a counter-move that should have been expected all along: A doctor may claim that this procedure is altogether safer for his patient, and far more likely to avoid the impairment of her mental health. The argument has been made then in Ohio that the burden of proof should shift to the State, or to the people who would call into question the medical judgment of the doctor.

In their enthusiasm for this measure, the pro-lifers in Congress seem to have overlooked one cardinal point: The argument is still taking place within the cast of understanding defined by the opposition, and by the premises of Roe v. Wade. Once the doctor has testified that a D & X would be the safest procedure for his patient, he has trumped the argument of the pro-lifers. For in the law as it now stands, the pregnant woman is the only “person” recognized as the bearer of rights and interests. The concern for her safety will of course claim preeminence, because there has not been the slightest recognition of the child as a presence, and a bearer of rights.

Hence, the advice offered by those of us who have counseled a different path of “first steps”: Would it not make the most pronounced difference if we arrived at the problem of D & X’s after we had taken care to set some other, simple premises in place, namely, that the right of the child to the protection of the law cannot pivot on the question of whether anyone happens to want her. With that simplest of moves, we would have altered the very cast in which we come to the problem of Dilation and Extraction, and the standing of that child who is extracted.

The legislation on D & X offers the hope of a breakthrough, which can bring out divisions, and stir a deep crisis, among the people who call themselves “pro-choice.” But it is also vulnerable to those skillful lawyers who know what an advantage it is to have the structure of the laws on their side. My own melancholy guess is that six months from now the legislation may be stalled by the same problems that have surfaced in Ohio. We will still be arguing in a framework defined by the defenders of abortion, and within that framework we will be enduringly subject to amendments raised within Congress, and challenges brought in the courts. At the same time, we will probably find that our leading presidential candidates will be as reticent on abortion as they are today. They are not likely to find, in the banning of this grisly procedure, anything they care to talk about in public. Still, it may be useful to work through this experience in order to learn its lessons. Yet, the pro-life movement has had a record of remarkably uniform experience precisely because it has been slow in extracting the lessons served up by that experience. For some reason, the point still seems to come as news: that it makes a difference, after all, to establish even simple points in principle, and it may make the most profound difference to do things in sequence.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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