WWaasshhiinnggttoonn aanndd LLeeee UUnniivveerrssiittyy SScchhooooll ooff LLaaww WWaasshhiinnggttoonn aanndd LLeeee UUnniivveerrssiittyy SScchhooooll ooff LLaaww SScchhoollaarrllyy CCoommmmoonnss Scholarly Articles Faculty Scholarship 1998 SSoo--CCaalllleedd ""PPaarrttiiaall--BBiirrtthh AAbboorrttiioonn"" BBaannss:: BBaadd MMeeddiicciinnee?? MMaayybbee.. BBaadd LLaaww?? DDeefifinniitteellyy!! Ann MacLean Massie Washington and Lee University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlufac Part of the Health Law and Policy Commons RReeccoommmmeennddeedd CCiittaattiioonn Ann MacLean Massie, So-Called "Partial-Birth Abortion" Bans: Bad Medicine? Maybe. Bad Law? Definitely!, 59 U. Pitt. L. Rev. 301 (1998). This Article is brought to you for free and open access by the Faculty Scholarship at Washington and Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Scholarly Articles by an authorized administrator of Washington and Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. (cid:43)(cid:40)(cid:44)(cid:49)(cid:50)(cid:49)(cid:47)(cid:44)(cid:49)(cid:40) Citation: 59 U. Pitt. L. Rev. 301 1997-1998 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Mar 15 15:48:39 2012 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0041-9915 SO-CALLED "PARTIAL-BIRTH ABORTION" BANS: BAD MEDICINE? MAYBE. BAD LAW? DEFINITELY! Ann MacLean Massie* TABLE OF CoNTENTS I. Introduction ........................................................... 302 II. The Procedure ........................................................ 310 A. What is a "Partial-Birth Abortion"? ......... .............. 310 B. Advantages Claimed for D&X Over the Alternatives .. 316 C. Incidence of Use of the Procedure ......................... 317 D. Reasons for Use of the Procedure ......................... 319 I. The Current Legal Picture ......................................... 322 A. The Controversy on the Federal Level .................... 322 B. Actions in the States ......................................... 327 IV. The Constitutional Question ....................................... 328 A. Vagueness .......................................... ........3 30 B. Validity of the Bans Under the RoelCasey Framework 340 1. Post-Viability Abortions ............................... 340 2. Pre-Viability Abortions: The "Undue Burden" Standard .................................................. 342 a. The Casey "Purpose" Prong ................... 345 b. The Casey "Effect" Prong ...................... 356 C. Other Voices, Other Views: The Fuzziness of Casey and the Inconclusiveness of the Constitutional Question 361 V. Views of the Medical Profession ................................. 367 A. With Respect to the D&X Procedure ...................... 367 B. With Respect to Legislative Intervention .................. 372 * Associate Professor, Washington and Lee University School of Law; B.A., 1966, Duke Uni- versity; J.D., 1971, University of Virginia. The support of the Frances Lewis Law Center, Washing- ton and Lee University School of Law, during the early phases of research is gratefully acknowl- edged, along with special gratitude to Dean Barry Sullivan, Washington and Lee University School of Law, for his thoughtful reading and helpful critiques of earlier versions of the manuscript. In ad- dition, I would like to thank Kevin Rauch for his able assistance with the early research, Vera Mencer for her extremely capable support, and Darlene Moore for pulling the manuscript together at the end. Finally, I am deeply indebted to Christine Miller, my summer 1997 research assistant, for her constant ability to rise to the challenge and her eager readiness to offer cheerful encouragement and a warm smile whenever needed. UNIVERSITY OF PITISBURGH LAW REVIEW [Vol. 59:301 VI. Alternatives for Appropriate Regulation: Self-Policing and the Tort System ...................................................... 374 VII. Conclusion ............................................................ 378 L INTRODUCTION The so-called "Partial-Birth Abortion Ban Act of 1997,''1 the fed- eral government's latest venture into the abortion controversy, represents its most arrogant, its most irresponsible, and its least thought-out foray into this minefield. As many have observed, this bill-like the state stat- utes which mirror it2-bans a medical procedure described in terminol- ogy that is virtually meaningless to the profession qualified to perform abortions. Furthermore, the purpose and phraseology of these enacted or proposed laws demonstrate both the lawmakers' lack of understanding of Supreme Court precedent defming the abortion right and their consequent confusion about the appropriate role of legislation in the practice of medicine. As subsequent reports have revealed, the highly-touted last-minute support of the federal bill by the Board of Trustees of the American Medical Association3 clearly does not express the opinion of large seg- ments of its membership.4 The fact that AMA Executive Vice-President 1. H.R. 1122, 105th Cong. (1997). 2. See infra notes 38-41 and accompanying text. 3. See Nancy W. Dickey, M.D., A.M.A. Supports HiR. 1122 As Amended (updated May 20, 1997) <http://www.ama-assn.org/ad-com/releases/1997/hr521.htm> ("The American Medical Associa- tion Board of Trustees has determined to support [H.R.] 1122 because it has now been significantly changed to substantially meet the criteria which the Board established for any abortion legislation."); see also Helen Dewar, AMA Backs 'Partial Birth' Abortion Curb; Endorsement of Legislation Comes as Senate Vote Nears, WAsIL PosT, May 20, 1997, at Al [hereinafter Dewar, AMA Backs Curb] (discussing the AMA's support for the bill and the specific changes to the bill that won their support); David Espo, AMA Gives Support to Abortion Bill, BOSTON GLOBE, May 20, 1997, at Al (discussing changes that led to the AMA's support); Letter from P. John Seward, M.D., Executive Vice President, American Medical Association, to the Hon. Rick Santorum, United States Senate (May 19, 1997) (on file with the author) (informing Sen. Santorum of the AMA's changed position). For an interesting opinion on the AMA's support for the bill, see Abigail Trafford, Editorial, The Doctors Invite Congress In, WAsEL PosT, June 30, 1997, at A19. Trafford observes that, "[i]enf fect, the AMA said to Congress: You can come on in to the doctor's office and decide what kind of spe- cific treatments the professional sons and daughters of Hippocrates can-and cannot-provide for their patients." Ild. 4. See Della De Lafuente, AMA Delegates Back 'Partial-Birth'B an, CH. SuN-TImEs, June 25, 1997, at 16 [hereinafter De Lafuente, AMA Delegates] (stating that some delegates continue to disa- gree with the ban, although the association's official stance is one of support); Della De Lafuente, AMA Members on Both Sides in Late-Term Abortion Debate, CHL SUN-Tnams, June 24, 1997, at 20 [hereinafter De Lafuente, AMA Members] (stating opinions of delegates who want the AMA to re- cant its support for the bill); Jeremy Manier, AMA Delegates Object to Stand on Abortion Ban, C-. Tam., June 24, 1997, at 2 (stating that delegates at the AMA's annual meeting were divided on the 1998] "PARTIAL-BIRTH ABORTION" BANS John Seward sent another letter to Congress outlining the organization's Medicare agenda5 on the same day that he penned his support statement further compromises the value of this lobbying group's official stance.6 On the other hand, the American College of Obstetricians and Gynecolo- gists, the professional group representing those whose medical decision making authority and expertise are at stake here,7 has remained adamant in its opposition to legislative prohibitions on "Intact Dilatation and Ex- traction" ("Intact D&X"). ACOG cogently observes that "[t]he interven- tion of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous." 8 ACOG's position has been reiterated in issue of the organization's support of the ban and that some who did support the ban did so because "'[w]e would prefer to have no legislation on this issue. .. [b]ut when Congress decides it wants legislation, we want to be sure it addresses the procedure correctly' "); Robert Pear, A.M.A. Abortion Stand Splits Its Members, N.Y. TmmS, May 22, 1997, at A16 (discussing the "rift in the organiza- tion" caused by its support of the bill); Trafford, supra note 3 (noting that the AMA says it only supported the bill because it was seen as the lesser of the possible evils; "[tio the AMA board... the question was not how to preserve physician autonomy, but how to prevent the most restrictive proposals from getting passed into law"). 5. See Jonathan Gardner, Was AMA's Abortion Stand A Quid Pro Quo?, MoD. H.ATHC May 26, 1997, at 3 (stating that the two letters were both sent by John Seward to Congress on the same day); Judith Havemann, AMA Adversaries Question Tuning of Abortion Ban Stance, Legislative Requests, WASH. Posr, May 30, 1997, at A7 (stating that "[t]he American Medical Association sent Congress an eight-page list of legislative requests on the same day the powerful physicians organiza- tion announced its crucial support for a Republican bill to restrict 'partial birth' abortions"). 6. See Gardner, supra note 5 (suggesting that the "AMA's support for the legislation could give the association more leverage in the upcoming battle over Medicare payments" but also stating that both the AMA and the Republican party deny any such deal); Havemann, supra note 5 (discuss- ing the possibility of a deal but also noting the denial on both sides); Albert R. Hunt, Politics and People: Daschle Charts Common Ground on Abortion, WALL ST. J., May 22, 1997, at A15 (stating that "there are credible reports the doctor's lobby secretly struck a deal with GOP leaders over Medicare reimbursement in return for the endorsement"). For an interesting discussion, see Frank Rich, Editorial, AMA's Switcheroo on Abortion Replays its '64 Sell-out on Tobacco, MILWAuKEE J. S.NTunm., June 1, 1997, at 2, which compares this recent AMA move with its 1964 deal with the tobacco lobby in which the AMA opposed health warnings on cigarette packages to insure tobacco- state opposition to Medicare. 7. The American College of Obstetricians and Gynecologists was founded in 1951 and has a membership of 38,000 physicians specializing in fields pertaining to women's health and reproduc- tion. See 1 ENCYCLOPED A OF AssOCIATIONS Part 2, 1510 (Christine Maurer & Tara E. Sheets eds., 33d ed. 1998). 8. American College of Obstetricians and Gynecologists, Statement on Intact Dilatation and Extraction 2 (Jan. 12, 1997) [hereinafter ACOG, Statement on Intact D&X] (on file with the author). ACOG contends: An intact D & X ... may be the best or most appropriate procedure in a particular circum- stance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:301 statements issued by both the American Medical Women's Association9 and the American Nurses Association.10 These organizations understand what Congress and state legislatures which have acted similarly do not the law (whether derived by judges under the Constitution or, enacted by legislatures) can set the parameters of the sphere of acceptable physician/patient decision making-for exam- ple, by defining the abortion right;1' by determining the status of physi- cian-assisted suicide;12 or by establishing the norms of informed consent that protect the patient from overreaching and help to ensure basic trust and mutuality in the physician/patient relationship itself.13 The law over- steps its bounds, however, when, having identified an appropriate health care objective, it attempts for reasons other than patient health and wel- fare to intrude into the physician/patient relationship by detailing the pre- cise medical procedures that will be considered permissible or impermis- sible for achieving the valid objective. In any -given situation covered by the laws under consideration here, it is to be assumed that the basic choice of the woman and her physician to perform an abortion at all is a constitutionally protected choice under the parameters established by the Supreme Court in 1973 in Roe v. Wade,14 as modified in 1992 by Planned Parenthood of Southeastern Pennsylvania v. Casey.'5 This means either that the abortion, although 9. See 143 CONG. REc. S4708 (daily ed. May 20, 1997)) (Letter from Debra R. Judelson, M.D., President, American Medical Women's Association, to Sen. Rick Santorum (May 20, 1997)) ("AMWA does not endorse legislation which interferes with medical decisionmaking, particularly when it fails to consider the health of the woman patient .... [We are gravely concerned that this legislation does not protect a woman's physical and mental health, including future fertility, or con- sider other pertinent issues such as fetal abnormalities."). 10. See id. (Letter from Geri Marullo, M.S.N., R.N., Executive Director, American Nurses As- sociation, to Senator Barbara Boxer (May 20, 1997)) ("It is the view of the American Nurses Asso- ciation that this proposal would involve an inappropriate intrusion of the federal government into a therapeutic decision that should be left in the hands of a pregnant woman and her health care provider."). 11. See Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 856 (1992); Roe v. Wade, 410 U.S. 113, 154 (1973). 12. See Oregon Death with Dignity Act, OR. Ray. STAT. ANN. §§ 127.800-127.995 (Supp. 1996); Washington v. Glucksberg, 117 S. Ct. 2258, 2271, 2275 (1997) (holding that there is no con- stitutionally protected right to physician-assisted suicide, but noting that states may pass laws al- lowing assisted suicide and encouraging public debate to continue on this issue); Vacco v. Quill, 117 S. Ct. 2293, 2296 (1997) (same). 13. See generally 1 BARRY R. FuRtow Er A., HF.-TH LAw §§ 6-9 to 6-19 (1995) (discussing doctrine of informed consent as developed in both common law and statutes). 14. 410 U.S. 113 (1973). 15. 505 U.S. 833 (1992). 1998] "PARTIAL-BIRTH ABORTION" BANS late term, is pre-viability16 or that, even if the fetus is viable, abortion is necessary to protect the life or health of the pregnant woman.17 In the latter instance, physicians may be required to take steps to preserve the life of the post-viable fetus, but not at the expense of endangering the woman's life or health.18 At the center of the current controversy is a procedure for late term abortions which, so far as anyone knows, is seldom practiced (albeit more frequently than first claimed), and may indeed be regularly con- ducted by only one physician in the country.19 Other doctors, however, do utilize the technique from time to time;2° perform abortion procedures 16. See id. at 846 ("Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure."). 17. See id. at 879 (reaffirming that " 'subsequent to viability, the State in promoting its inter- est in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother' ") (quoting Roe, 410 U.S. at 164-65). 18. See Planned Parenthood Ass'n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476, 485 n.8, 486 (1982) (upholding second physician requirement for post-viability abortions on grounds that law contained an implied medical emergency exception); see also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-71 (1986) (finding a provision of a Pennsylvania law unconstitutional because it could result in a "trade-off" between the woman's health and fetal survival since it only contained an exception if care for the fetus would result in a "significantly greater medical risk to the life or health of the pregnant woman," and also finding a provision re- quiring the attendance of a second physician in post-viability abortions unconstitutional because, un- like the situation in Ashcroft, it did not contain an adequate medical emergency exception); Colautti v. Franklin, 439 U.S. 379, 400 (1978) (striking down a provision of an earlier Pennsylvania law re- quiring a physician to take steps to save the life of an aborted viable fetus because it was "uncertain whether the statute permits the physician to consider his duty to the patient to be paramount to his duty to the fetus, or whether it requires the physician to make a 'trade-off' between the woman's health and additional percentage points of fetal survival"); Jane L. v. Bangerter, 61 F.3d 1493, 1503- 04 (10th Cir. 1995) (invalidating provision of Utah law that required physicians performing post- viability abortions to use method that would have best possibility of saving life of fetus because ex- ception was provided only when the method would cause "grave danger" to the woman and also noting that "The importance of maternal health is a unifying thread that runs from Roe to Thorn- burgh and then to Casey"), rev'd on other grounds, 518 U.S. 137 (1996). 19. See infra notes 65-77 and accompanying text (noting that the actual number of D&X pro- cedures performed is higher than first thought and that more doctors use the technique, or a variant, than first reported, and in a broader variety of situations; nonetheless, the number is not high-likely no more than a few thousand per year). 20. See Women's Med. Prof'l Corp. v. Voinovich, 911 F. Supp. 1051, 1070 (S.D. Ohio 1995) (in a suit brought by Dr. Haskell and others, the trial court, after describing various abortion proce- dures and reviewing several physicians' testimony in detail, specifically found that "[ait least three doctors in Ohio perform some variation of the D & X procedure: Plaintiff Haskell; Dr. John Doe Number One; and Dr. John Doe Number Two"), aft'd, 130 F.3d 187 (6th Cir. 1997), cert. denied, 1998 WL 124649 (U.S. Mar. 23, 1998) (No. 97-934) (citations omitted); see also Voinovich, 130 F.3d at 200 (noting testimony of the three doctors). UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 59:301 that represent some variation of the basic technique;21 or may find the technique useful at some future date.22 In their eyes, as well as in the views of many of their colleagues, the issue involves not only women's rights to choose a safe, legal abortion, but also their rights as physicians to determine, in consultation with their patients, the best and most appro- priate medical treatment for any given patient under her particular circumstances. 3 This article will explore the movement to ban the targeted abortion procedure and examine the evidence that emerges from the congressional hearings and from other sources in an attempt to tease out the underlying issues and subject the proffered arguments to analytical scrutiny. Are these laws, as some claim, nothing more than part of the pro-life political 21. See Diane M. Gianelli, Abortion Rights Leader Urges End to 'Half Truths,' AM. MD. NEws, Mar. 3, 1997, at 3 (stating that many doctors already do a variation on intact D&E); see also infra note 75 and accompanying text (discussing data that emerged late in 1996 and early 1997 con- cerning frequency of use of the procedure). 22. See Voinovich, 911 F. Supp. at 1070 (noting that "the D & X procedure appears to have the potential of being a safer procedure than all other abortion procedures," implying that future de- velopment and more widespread use of the technique might be both anticipated and desirable, if per- mitted); accord Carhart v. Stenberg, 972 F. Supp. 507, 531 (D. Neb. 1997) (issuing temporary re- straining order against Nebraska's ban, as applied to the practice of Dr. LeRoy Carhart); id. at 525- 27 (citing expert testimony in that case and others detailing the potential benefits of D & X over conventional D & E). 23. See The Partial-BirthA bortion Ban Act of 1995: HearingB efore the Senate Comm. on the Judiciary, 104th Cong. 248 (1995) [hereinafter Senate Hearing] (statement of Warren M. Hem, M.D., M.P.H., Ph.D., Dir. Boulder Abortion Clinic, Asst. Clinical Prof., Dept. of Obstetrics and Gyn- ecology, Univ. of Colorado Health Sciences Center) ("I support the right of my medical colleagues to use whatever methods they deem appropriate to protect the woman's safety during this difficult procedure. It is simply not possible for others to second guess the surgeon's judgment in the operat- ing room. That would be dangerous and unacceptable."); Partial-BirthA bortion: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 64 (1995) [herein- after House Hearing] (statement of J. Courtland Robinson, M.D., Assoc. Prof., Dept. of Gynecology and Obstetrics, Johns Hopkins Univ.) ("The physician needs to be able to decide, in consultation with the patient, and based on her specific physical and emotional needs, what is the appropriate methodology. The practice of medicine by committee is neither good for patients or for medicine in general."); American College of Obstetricians and Gynecologists, Statement on MR. 1833, The Par- tial-Birth Abortion Ban Act of 1995 (Nov. 1, 1995) [hereinafter ACOG, Statement on H.R. 1833] (on file with the author) ("The College finds very disturbing any action by Congress that would su- persede the medical judgment of trained physicians and that would criminalize medical procedures that may be necessary to save the life of a woman."); National Abortion Federation, Later Abor- tions: Questions and Answers 5 (1995) (on file with the author) ("Passing federal legislation against a surgical procedure places Congress in an inappropriate position of deciding for women and for doctors what is the best treatment for them to receive or give."); National Abortion and Reproduc- tive Rights Action League, Late Term Abortion: The Myth of "Abortion on Demand" 2 (June 20, 1995) (on file with the author) ("When an abortion is needed, the physician's decision about which procedure to use should be based on the health needs of the woman."); see also supra note 8 and accompanying text. 19981 "PARTIAL-BIRTH ABORTION" BANS agenda-an attempt to chip away at the abortion right itself?.24 Or are they, as others assert, simply an effort to halt an unnecessarily cruel and inhumane procedure under circumstances where alternatives for safe, ef- fective abortions already exist?25 Are the restrictions constitutional-ei- 24. See, e.g., Senate Hearing, supra note 23, at 66 (statement of Sen. Feingold) ("I am con- cerned as well that, although the focus of this legislation is, in fact, one particular type of abortion used in late-term abortions, I fear that this is really an assault upon the basic right to have an abor- tion."); id.a t 61 (statement of Sen. Feinstein) ("This bill is a calculated effort to undermine Roe v. Wade and to undercut subsequent Supreme Court decisions that have affirmed a woman's constitu- tional right to choose to have an abortion."). Senator Kennedy stated: The so-called Partial-Birth Abortion Ban Act is extremist legislation at its worst. It is the latest tactic in the strategy of those who want to overturn the Supreme Court's decision in Roe v. Wade and outlaw all abortions.... The street war against a woman's right to choose now comes before Congress in the form of this bill. Its proponents have boasted that if they prevail, they will move on to out- law more and more abortions in the United States, procedure by procedure. Id.a t 13-14 (Statement of Sen. Kennedy). J. Courtland Robinson, M.D. testified: So then I have to wonder what you are trying to ban with this legislation. It sounds as if you are trying to leave any later abortions open to question, to create a right of action and, in fact, a criminal violation, to force doctors to affirmatively prove that they have not somehow violated such a law.... ... Because the law is so vague and based on erroneous assumptions, it would leave doctors wondering if they were open to prosecution or not each time they performed a late abortion. That means that by banning this technique, you would in practice ban most later abortions altogether by making them virtually unavailable. And that means that women will probably die. I. at 104-05 (Statement of J. Courtiand Robinson, M.D.); see also House Hearing,s upra note 23, at 29-30 (testimony of Rep. Schroeder) ("We all know that what people are really trying to get at here is the fundamental right of women to receive medical treatment that they and their doctors deter- mined to be safest and best for them.... This is a beginning of chopping away at a right we have spent much too long in trying to ascertain."); David J. Garrow, Editorial, A LOOK AT... The New Politics of Abortion; When 'Compromise' Means Caving In, W+,.s Posr, June 1, 1997, at C3 [here- inafter Garrow, Editorial] ("Santorum and other enemies of women's choice hope to create a slip- pery slope in which a 'partial-birth' ban leads to prohibition of all second- and third-trimester abor- tions."); Kim Painter, Fueling the Debate: Late Abortions Spark New Controversy; Congress Rethinks Ban on 'Partial-Birth'M ethod, USA TODAY, Mar. 11, 1997, at ID (" 'It's no secret that the National Right to Life Committee believes all children should be protected,' says its legislative director, Douglas Johnson. 'We think anything that can be done to start moving things back is worthwhile.' "). Cf.S enate Hearing, supra note 23, at 142 (statement of Helen M. Alvare, Esquire., on behalf of the National Conference of Catholic Bishops Secretariat for Pro-Life Activities) ("We are willing to work incrementally to save as many lives as possible, disabled or able-bodied, a bit at a time."). 25. See, e.g., Senate Hearing, supra note 23, at 116 (statement of Helen M. Alvare, Esq.) ("No reasonable person can disagree, once he or she has read a description or seen an accurate drawing of the partial-birth abortion method: it is one-fifth abortion and four-fifths infanticide. It kills a child when 80 percent of his or her body is already outside the womb."); id.a t 112 (state- ment of Nancy G. Romer, M.D.) ("In my research and in talking with physicians who perform late term abortions I found nothing preferable and safer than what I currently do. In fact when reading the description of the D&X procedure I found several things that made this procedure very unattrac- UNIVERSITY OF PITTSBURGH LAW RBVIEW [Vol. 59:301 ther before or after fetal viability? Even if they are, do they represent sound social policy? This article takes the position that much of the evidence offered to date represents political bias as much as it does scientific fact; that at least some of the restrictions are blatantly unconstitutional, while others are highly questionable under Casey; and that they do not, in any event, constitute sound social policy. Even if the contemplated restrictions could be framed in a manner to comport with current Supreme Court jurispru- dence defining the abortion right, it is the special province of medical practitioners-not lawmakers-to determine the safest and most effective means of performing medical procedures appropriate for their patients' optimal health. This is true whether the medical treatment at issue hap- pens to be a technique for performing safe, legal abortions or whether it concerns any other form of appropriate medical care. Granted, the medical profession is extensively regulated: every state has licensure laws;26 and both state and federal regulations seek, inter alia, to prevent fraud;27 to insure informed consent to experimentation in- volving human subjects28 (or any human tissue);29 and to assure the tive."); id. at 81 (statement of Pamela Smith, M.D.) ("Partial-birth abortion is not a standard of care for anything. In fact, partial-birth abortion is a perversion of a well-known technique used by obste- tricians to deliver breech babies when the intent is to deliver the child alive. However... this tech- nique is rarely used in this country because of the well known associated risks of maternal hemor- rhage and uterine rupture."); Helen Dewar, Abortion Compromise Rejected; Daschle Plan to Restrict Late-Term Procedure Falls Short, WAsm POsT, May 16, 1997, at Al [hereinafter Dewar, Abortion Compromise Rejected] ("It is 'barbaric... shockingly close to infanticide,' said Sen. Tm Hutchin- son (R-Ark.) .. ") (omission in original); Dewar, AMA Backs Curb, supra note 3 (quoting then Chair of the AMA's Board of Trustees, Nancy W. Dickey, as saying that the bill bans a procedure that is "never the only appropriate procedure and has no history in peer reviewed medical literature or in accepted medical practice development"); Laurie Goodstein, Catholic Cardinals Vow to Lobby Congress to Overturn Clinton's Abortion Veto, WAsm PosT, Apr. 17, 1996, at A14 (" 'Partial birth abortion is an even more intense, more moving pro-life issue than many others that have gone before,' [Helen M.] Alvare said. 'Killing a baby that's mostly born is very physically and emotion- ally gripping.' "); Nancy Romer et aL, Editorial, Partial-BirthA bortion Is Bad Medicine, WAUX ST. J., Sept. 19, 1996, at A22 ("Contrary to what abortion activists would have us believe, partial-birth abortion is never medically indicated to protect a woman's health or her fertility. In fact, the opposite is true: The procedure can pose a significant and immediate threat to both the pregnant woman's health and her fertility.") (emphasis added). 26. See 1 FURRow Er AL., supra note 13, § 3-1. 27. See, e.g., 42 U.S.C. §§ 263a-1 to a-7 (1994) (reproductive technology reporting provi- sions); 42 U.S.C. §§ 1320a-1 to a-7 (1994 & Supp. 1996) (Medicare/Medicaid anti-fraud and abuse provisions); VA. CODE ANN.§ § 32.1-310 to -321 (Michie 1992) (Medicaid anti-fraud provisions). 28. See 45 C.F.R. §§ 46.101-.124 (1996) (Department of Health and Human Services Policy for Protection of Human Research Subjects); VA. CoDE ANN. § 32.1-162.18 (Michie 1992). 29. See, e.g., 45 C.F.R. §§ 46.208-.210 (pertaining to research involving fetuses); Woman's Right-To-Know Act, 1997 Fla. Laws ch. 97-151 (forbidding experimentation involving fetuses).