Yale Journal of Law & Feminism Volume 10 Article 5 Issue 2Yale Journal of Law & Feminism 1998 CROSSING THE LINE: THE POLITICAL AND MORAL BATTLE OVER LATE-TERM ABORTION Rigel C. Oliveri Follow this and additional works at:http://digitalcommons.law.yale.edu/yjlf Part of theLaw Commons Recommended Citation Oliveri, Rigel C. (1998) "CROSSING THE LINE: THE POLITICAL AND MORAL BATTLE OVER LATE-TERM ABORTION," Yale Journal of Law & Feminism: Vol. 10: Iss. 2, Article 5. Available at:http://digitalcommons.law.yale.edu/yjlf/vol10/iss2/5 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & Feminism by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please contact [email protected]. CROSSING THE LINE: THE POLITICAL AND MORAL BATTLE OVER LATE-TERM ABORTION Rigel C. Oliverit "This is an emotional,d istorted debate. We are using the lives ofa few women to create divisions across this country... -Senator Patty Murray' I. INTRODUCTION The 25 years following the Supreme Court's landmark decision in Roe v. Wade2 have seen a tremendous amount of social and political activism on both sides of the abortion controversy. Far from settling the issue of a woman's constitutional right to an abortion, the Roe decision galvanized pro-life and pro- choice groups and precipitated many small "battles" in what many on both sides view to be a "war" between fetal protection and women's access to reproductive choice. These battles have occurred at the judicial, grassroots, and political levels, with each side gaining and losing ground. Pro-life activists staged a nation-wide campaign of clinic protests, which led to Congress's 1994 enactment of the Federal Access to Clinic Entrances law creating specific civil and criminal penalties for violence outside of abortion clinics.3 State legislatures imposed limitations on the right to abortion, including mandatory waiting periods and requirements for parental or spousal notification. Many of these limitations were then challenged before the Supreme Court, which struck down or upheld them according to the "undue burden" standard of review articulated in PlannedP arenthoodo f Southeastern Pennsylvania v. Casey4. Recent developments have shifted the focus of conflict from clinic entrances and state regulation of abortion access to the abortion procedures themselves. The most controversial procedures include RU-486--the "abortion drug"-and a particular late term surgical procedure called intact dilation and extraction ("D&X")-more popularly known as "partial-birth abortion." The controversy surrounding the D&X procedure escalated dramatically in June of 1995, when both houses of Congress first introduced legislation to ban the procedure. This t Stanford Law School, candidate for J.D., 1999. I am indebted to Janet Halley for her advice, feedback, and encouragement. I am grateful to Ann Kolker for her assistance and for giving me the opportunity to work on this issue. I would also like to thank Blanche Fischer and Luis Li. Finally, I would like to dedicate this Article to my late grandmother, Stella Mantei, who never got the chance to read it and probably would not have agreed with everything in it, but would be proud of me for writing it, nonetheless. 1. 142 CONG. REC. S11337-01, S11348 (1996). 2. 410U.S. 113(1973). 3. See 18 U.S.C. § 248 (1994). 4. 505 U.S. 833 (1992). Copyright 0 1998 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism [Vol. 10:397 touched off intense lobbying efforts on the part of both proponents and opponents of the bill, resulting in a fierce ethical, medical, political, and social debate that shows no signs of diminishing. This Article will examine the proposed legislation, lobbying, and debate surrounding "partial birth abortion," and the representational difficulties faced by opponents of the Ban in this contest. Parts II and 111 examine the proposed Ban of the D&X procedure, including its language, legislative history, and ramifications. Part IV documents and critically assesses the advocacy and lobbying efforts surrounding the Ban, focusing on how groups on both sides of the issue framed the debate and the arguments, tactics, and rhetorical devices they used. Part V discusses the controversy over the incongruous statistics each side presented. This discrepancy came about in part because of the different ways in which advocates framed the debate, spurring even more intense political battles. In addition, the statistics dispute indicated deeper problems with the representational strategies that opponents of the Ban pursued. Part VI contains a focused critique of the strategies of those organizations and individuals who opposed the Ban, from both a tactical and a representational standpoint. I argue that opponents of the Ban had difficulty defining the group of women whose interests they were attempting to represent, and that this difficulty both illuminated and reinforced underlying tensions surrounding late term abortion and the very different groups of women who have them. Part VII contains a brief analysis of the inherent problems surrounding group representation in issue- based advocacy and lobbying, particularly in the area of abortion rights. I conclude with suggestions for more effective, comprehensive pro-choice advocacy which recognizes and takes into account the diverse nature of the women whose interests are represented. I. THE HISTORY OF THE BAN The first version of the legislation, House Resolution 1833, was introduced in the House on June 14, 1995 as an amendment to Title 18, the criminal section of the U.S. Code.5 The bill was sponsored by Representatives Canady, Vucanovich, Hall, and Hyde, with an incredible 162 cosponsors.6 HR 1833 imposed both criminal and civil penalties on doctors who performed a procedure defined as: "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery."'7 Doctors convicted under the proposed law would face a fine and up to 5. SeeH.R. 1833, 104thCong. (1995). 6. See 141 CONG. REC. HI 1426 (1995) (statement of Rep. Canady). 7. H.R. 1833, 104th Cong. (1995). Although the legislation and the surrounding debates incorporated apparent medical and scientific terminology, in fact many of the terms used have multiple, ambiguous, and contested definitions. For an analysis of the competing definitions of the procedure and an attempt to clarify other important technical issues, see infra Section IIIan d Appendix A. 19981 Crossing the Line two years in prison.8 The father of a fetus aborted through the D&X procedure, as well as the parents of a woman under the age of eighteen, would have a civil cause of action against the doctor, enabling them to claim damages for psychological injury and additional monetary damages of up to three times the cost of the procedure.9 HR 1833 originally contained a narrow affirmative defense for doctors who reasonably believe that the procedure is necessary to save a woman's life and that no other procedure would suffice for that purpose. There was no similar defense for circumstances in which the procedure would be considered necessary to preserve a woman's health or future fertility. Some members of the House tried to introduce an amendment that would create such a defense, but they were prevented from doing so because the bill came out of the Judiciary Committee under a closed rule, meaning that amendments and substitutions would not be allowed.'0 On November 1, 1995, the House voted overwhelmingly to pass the bill." The Senate version of the bill, S. 939, was introduced on June 16, 1995 by Senator Smith (NJ).'2 When it was first introduced, S. 939 was basically identical to the version that passed through the House. However, because this bill did not come to the floor under a closed rule, Senators were able to offer amendments on the floor. The most important of these amendments was offered by Sens. Smith (NH) and Dole, and Sen. Boxer. The Boxer Amendment, No. 3083, would have created an exception for abortions "prior to the viability of the fetus, or after viability where, in the medical judgment of the attending physician, the abortion is necessary to ... avert serious health consequences to the woman. 13 This amendment was defeated in the Senate by a close margin.14 The Smith-Dole Amendment, No. 3080-81, reformulated the maternal life affirmative defense into a maternal life exception.' 5 This Amendment passed, and the exception language replaced the affirmative defense language in the bill.' 6 The amended version was passed by the Senate on December 7, 1995.17 The bill then returned to the House, which concurred in the Senate amendments.18 On March 27, 1996 the House substituted the Senate version of 8. See H.R. 1833, 104th Cong. (1995). 9. See id. 10. See 141 CONG. REc. H11593-02, H11594 (1995) (statement of Rep. Beilenson). 11. See 141 CONG. REC. H11604-01,H11618 (1995). 12. See S. 939, 104th Cong. (1995). 13. Amendment read Dec. 5, 1995. 141 CONG. REC. S18002-02, S18004 (1995). 14. See 141 CONG. REC. S18183-01, S18198 (1995). 15. Amendment read Dec. 5, 1995. See 141 CONG. REC. S18002-02, S18003. The significance of this change was more than semantic. An affirmative defense is a tool that the doctor would be able to employ only during a trial-after he has been arrested or sued in a civil action. The exception would allow doctors to "plead their case" before a review board before any legal action is taken, possibly precluding such action if the review board deems that the actions were medically appropriate. 16. See 141 CONG. REC. S18183-01, S18198 (1995). 17. See id. at S18228. 18. See 142 CONG. REC. H2895-02, 12904 (1996). Yale Journal of Law and Feminism [Vol. 10:397 the bill for its first version, with the new bill still called HR 1833.19 Thus, the "Partial Birth Abortion Ban of 1996," went to President Clinton with an exception for matemal life, but lacking one for maternal health. HR 1833 was vetoed by President Clinton on April 10, 1996.20 In his veto message, Clinton expressed his disappointment with Congress' refusal to include a matemal health exception.21 He indicated that the D&X procedure "troubled [him] deeply," and that he was willing to support a ban on the elective use of the procedure.22 However, he felt that the lack of a maternal health exception evinced "Congressional indifference to women's health, '23 making the bill both morally and Constitutionally unacceptable. He concluded by stating that he could not, in good conscience, sign a bill that would "eliminate [the procedure] without taking into consideration the rare and tragic circumstances in which its 24 use may be necessary. The House overrode the veto on September 19, 1996.25 However, a few days later the Senate's override attempt failed by a margin of thirteen votes.26 For the time being, the fight appeared to be over, but the issue was far from settled. In the waning months of 1996, new information surfaced about the numbers of, and reasons for, "partial-birth abortions." Apparently reliable data, often from the clinics and doctors themselves, indicated that the procedure was performed far more often than earlier thought, and frequently on a purely elective basis. The first reaction from columnists and members of Congress alike was one of confusion. Much of the contest over HR 1833, particularly the arguments against the bill, had focused on technical information-the mechanics of the procedure, its statistical rarity, the precise nature of the fetal deformities and maternal health complications that prompted the need for it.27 Having relied heavily on information supplied to them by lobbying groups, members of Congress (particularly those who had opposed the bill) were left wondering if their arguments had been built on a faulty foundation. Columnists who had confidently reported the statistics and anecdotes supplied by lobbying organizations and pro-choice experts began writing instead about their bewilderment. 19. Seeid atH2928. 20. See Remarks on Returning Without Approval to the House of Representatives Partial-Birth Abortion Legislation, 32 WKLY. COMPILATION PRESIDENTIAL DOCUMENTS 645 (Apr. 10, 1996). 21. See id at 646. 22. Id at 645-46. 23. Id at 646. 24. Id. 25. See 142 CONG. REC. H10621-01, H10642 (1996). 26. See 142 CONG. REC. S11366-01, S11389 (1996). 27. Other skirmishes centered around conflicting medical evidence. Hearings, testimony, and debates sought to discover whether or not the fetus was neurologically developed enough to feel pain from the abortion, and whether or not the anesthesia administered to the mother before the procedure killed the fetus before the actual procedure began. See, e.g., Partial-BirthA bortion: Hearing on HR 1833 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 104th Cong. 76 (1995) (statement of Mary Ellen Morton, R.N., neonatal specialist); Effects ofAnesthesia During a Partial-BirthA bortion: Hearingo n HR 1833 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary,1 04th Cong. (1996). 1998l Crossing the Line Then the other shoe dropped: Ron Fitzsimmons, the Executive Director of the National Council of Abortion Providers, admitted to the American Medical News that he "lied" about the numbers of and reasons for the procedure in a 1995 interview with ABC's "Nightline. 28 Instead of correcting or clarifying Fitzsimmons' statements and statistics, opponents of the Ban had consistently repeated and relied on them through the years. Congressmen, columnists, and people across the country, some of whom were pro-choice and had opposed the bill, found their feelings shifting from confusion to betrayal and outrage. The bill's original supporters can best be described as "livid." Convinced that bad facts and outright lies had defeated HR 1833, they were sure that a second attempt would prove more successful. The President had based his veto of HR 1833 on his belief that the procedure was only used in "rare and tragic circumstances."29 New statistics indicated that the procedure was not as rare nor as limited to tragic circumstances as lobbyists had led him to believe. The Ban's supporters felt that the new information might change the President's mind about banning the procedure, or change enough Senators' minds to override another veto.30 As a result, the Ban was revitalized on January 21, 1997, when Senator Santorum introduced S. 6.31 This bill was virtually identical to the final version of HR 1833, with the same definition of the procedure, the same penalties, a life exception, and no maternal health exception. Representative Canady introduced HR 92932 on March 5, 1997, which was also virtually identical to HR 1833, in the House. The House version had some new amendments attached to it before it went into the Judiciary Committee. One amendment would have provided for a stronger maternal life exception, and another would have prevented abandoning or abusive husbands from collecting damages in civil suits against abortion providers.33 However, to prevent HR 929 from reaching the floor with the amendments attached for debate, the House Judiciary Committee substituted an amendment-free replacement bill, which was then re-introduced by Rep. Solomon.34 The new version, HR 1122,35 was basically identical to the original version, FIR 1833. The House overwhelmingly passed this version on March 20, 1997, by a veto-proof majority.36 The Senate adopted the House version on May 28. Diane M. Gianelli, Abortion Rights Leader Urges End to 'HalfT ruths', AM. MED. NEWS, Mar. 3, 1997, at 3. 29. 32 WKLY. COMPILATION PRESIDENTIAL DOCUMENTS 646 (Apr. 10, 1996), 30. See, e.g., Mona Charen, Partial Truths, DAYTON DAILY NEWS, Mar. 8, 1997, at 13A ("The only question that remains now is whether President Bill Clinton has enough integrity to reverse his position and his veto. He relied, after all, on the lies that Fitzsimmons has acknowledged."). 31. See S. 6, 105th Cong. (1997). 32. HR. 929, 105th Cong. (1997). 33. See 143 CONG. REC. H1192-01, H1193 (1997) (statement of Rep. Slaughter). 34. See 143 CONG. REc. H1184-01, H1184 (1997). 35. HR. 1122, 105th Cong. (1997) (enacted). 36. See 143 CONG. REc. H1192-01, H1201 (1997). Yale Journal of Law and Feminism [Vol. 10:397 20, 1997, although it was a few votes shy of the number needed to override the promised veto.37 President Clinton vetoed House Resolution 1122 on October 10, 1997.38 In his veto message, the President stated that his reasons for opposing the measure were identical to those he expressed in his veto of FIR 1833, stressing again that he would be willing to sign a ban on "partial-birth abortions" if it contained a maternal health exception.39 Without one, he worried that the bill would not "protect the lives and health of the small group of women in tragic circumstances who need an abortion performed at a late stage of pregnancy to avert death or serious injury."40 I. A NOTE ON TERMINOLOGY Although there have been two separate bills, I will refer to the general prohibition of D&X abortions as "the Ban." When it is relevant I will specify to which bill, and to which version of it, I refer. In this Article, I will not use the most commonly-accepted terms "pro-choice" and "pro-life" to describe the opponents and proponents of the Ban. I refrain because some people who would classify themselves as "pro-choice" also support the Ban,a' indicating that this controversy is qualitatively distinct from the broader abortion debate. This variance within the pro-choice movement creates complex representation and group-identity issues, which will be explored further in this Article. Accordingly, I will narrow the focus to the Ban itself, and use the term "pro-Ban" to describe political figures and lobbying organizations42 who worked to ensure the passage of the legislation, and the term "anti-Ban" to refer to the political figures and lobbying organizations43 who worked to defeat the legislation. The terminology used by both sides varies widely. There are many types of abortion procedures which are performed for varying reasons at different stages of pregnancy.44 This creates ample opportunity for confusion, even without deliberate attempts by the interested groups to take advantage of the ambiguity presented by multiple overlapping definitions. Indeed, the rhetorical 37. See 143 CONG. REC. S4714-02, S3715 (1997). 38. See Message to the House of Representatives Returning Without Approval Partial-Birth Abortion Legislation, 33 WKLY. COMPILATION PRESIDENTlAL DOCUMENTS 1545 (Oct. 10, 1997). 39. See id 40. Id. 41. This is not as true in the reverse-few if any "pro-life" individuals have opposed the ban. 42. Organizations in favor of the Ban include: the National Right to Life Committee (NRLC), the Association of Catholic Bishops, the Family Research Council, the Concerned Women for America, and the Physician's Ad Hoc Committee for Truth (PHACT). 43. Organizations opposed to the Ban include: the Center for Reproductive Law and Policy, the National Women's Law Center, the American College of Gynecologists and Obstetricians (ACOG), Planned Parenthood, National Abortion Rights Action League (NARAL), the ACLU Reproductive Freedom Project, and the National Abortion Federation. 44. See Appendix A, which sets forth the most commonly-used abortion procedures, describing the stage of pregnancy in which they are used, the reasons for their use, and their medical benefits and disadvantages. 1998] Crossing the Line manipulation of the description of the procedure itself, as well as the definitions of "maternal health," "late-term," and "fetal viability," have laid the groundwork for the debate on the acceptability of this particular method of abortion and much of the confusion that has arisen around the accuracy of the statistical evidence presented. Accordingly, for the purposes of this Article I will use a set of working definitions which are intended to increase clarity and a neutral understanding (to the extent that it is feasible) of the technical issues involved. While these are my own definitions, I have distilled them from a mass of legal and medical sources, attempting to capture the most complete and accurate descriptions possible.45 The procedure at the center of this controversy is known by several different medical terms, including "intact dilation and evacuation," "dilation and extraction," and intrauterine cranial decompression. "Partial-birth abortion" is the term coined by the congressional proponents of the Ban. This is neither an accepted medical nor legal term, and is not used by abortion practitioners or the medical community at large. Rather, as I will discuss later, this term was purposefully created to be both inflammatory and misleading.46 I will refer to the procedure by the more-accepted medical term "dilation and extraction" ("D&X").47 The D&X procedure is used in the second and third trimesters of pregnancy, from 18 to 32 weeks of gestation.48 The woman's cervix is partially dilated, enabling the doctor to move the fetus into the birth canal. At this stage of pregnancy, the fetus' head is usually too large to be removed from the uterus without inducing full-blown labor.49 In order to remove it, the doctor may have to collapse the fetus' skull. This is usually accomplished by creating a puncture at the base of the fetus' skull, either with scissors or a scalpel, and suctioning out the brain and/or skull contents5" with a vacuum aspirator. The fetus is then removed, largely intact, and the umbilical cord is cut. The procedure is essentially the same regardless of when in the pregnancy it is performed. However, the timing of the procedure relative to fetal viability is of great moral and legal significance. Therefore, when I refer to the D&X procedure 45. Primary sources for technical information include: MODERN METHODS OF INDUCING ABORTION (David T Baird et al.e ds., 1995); WARREN M. HERN, ABORTION PRACTICE (1984); ABORTION AND STERILIZATION: MEDICAL AND SOCIAL ASPECTS (Jane E. Hodgson ed., 1981). 46. See infra note 62 and accompanying text. 47. In fact, the most common name for it is "intact dilation and extraction" ("IDE"). However, this is easily confused with another procedure that is known as "D&E" (dilation and evacuation), so I will use the less common, but more distinct term "D&X." 48. The description of the D&X procedure in this paragraph was taken from Martin Haskell, M.D., Dilation and Extractionf or Late Second Trimester Abortion (Presented at the National Abortion Federation Risk Management Seminar, Sept. 13, 1992). 49. This is especially true for abortions that are performed because of severe anomalies. Many fetal defects, such as hydrocephaly (water on the brain), ancephaly (absence of brain and skull is filled with fluid), and holoprosencephaly (brain hemispheres fused and malformed) cause the fetus' head to be much larger than normal, and almost impossible to remove from the uterus intact. 50. As mentioned in the previous footnote, some of the more common fetal defects are the complete or partial lack of a brain, or the presence of a great deal of fluid within the skull cavity. Thus, in many cases, the "contents" that are removed are not brain material at all. Yale Journal of Law and Feminism [Vol. 10:397 I will clarify whether it is a "pre-viability" or "post-viability" D&X. The term "viable" refers to the fetus' ability to survive outside of the womb, either with or without medical life-support. Specifically, doctors consider a fetus viable when there is some meaningful chance of survival beyond the 28-day neonatal period.5' In previous decades, 28 weeks was considered the threshold of viability, but current medical technology places viability as early as 23 to 24 weeks of gestation.52 It is important to note that viability varies from case to case; one fetus may be viable at 25 weeks and another may not. Difficulty in measurement also arises because, while the duration of pregnancy is counted from the first day of the woman's last menstrual period, conception actually occurs roughly two weeks after this date, while the woman is ovulating, "but the timing of ovulation and conception is not usually known. ' 3 In addition, even the most precise sonogram estimates of fetal age in the second trimester may be off by as many as eleven days. As the Supreme Court found in PlannedP arenthoodo f Missouri v. Danforth, whether or not a fetus is viable is a "a matter for the judgment of the responsible attending physician. 54 "Late term" is another malleable phrase. Sometimes used as an imperfect proxy for fetal viability, it is also used to indicate the third trimester, the period after quickening (usually around 16-19 weeks), or the period after the first trimester. To the extent that I use the phrase "late term," I will be referring to abortions performed after the first trimester. There is a definite breaking point between the first and the second trimesters-abortions after 12 weeks are both more risky and far more rare.55 Because the D&X procedure is only used in the second and third trimesters, it is by definition a "late term abortion procedure." Finally, it is important to note that, because the D&X procedure is only performed after 18 weeks of gestation, when I discuss it I will be referring only to abortions performed after 18 weeks. (I still consider the period between 12 and 18 weeks to be "late term," but this time period is not as relevant for the purposes of this Article.) Finally, it is worth clarifying the phrase "maternal health" although it will be discussed in greater detail later in this Article. The Supreme Court first described the relevant components of "maternal health" in Doe v. Bolton, the companion case to Roe v. Wade, stating that "the medical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial, and the 51. See Phillip G. Stubblefield, Late Abortion and Technical Advances in Fetal iability-Some Medical Considerations,1 7 FAM. PLAN. PERSP. 160, 161 (1985). 52. See id 53. David A. Grimes, Second-TrimesterA bortions in the UnitedS tates, 16 FAM. PLAN. PERSP. 260, 260 (1984). 54. 428 U.S. 52, 64 (1976). 55. 89% of all abortions take place within the first trimester. See THE ALAN GuTrMACHER INSTITUTE (hereinafter AGI), WHEN Do ABORTIONS TAKE PLACE?, Fact Sheet, Mar. 1997. "Abortions performed at 16 or more weeks' gestation are 24 times as likely to result in fatal complications as abortions at eight or fewer weeks." Grimes, supra note 53, at 263. 1998] Crossing the Line woman's age-relevant to the well-being of the patient.,56 Many proponents of the Ban invoked this phrase to support the notion that Ban opponents would use maternal "emotional distress" or "psychological problems" to justify post- viability abortions. In fact, the relevant interpretation of "maternal health" changes according to the stage of pregnancy. The phrase in Doe, which invokes a holistic image of mental, physical, and emotional health, would be applicable to pre-viability abortions, usually those in the first trimester. At this stage, abortions are safe enough that doctors will perform them even when mothers aren't facing severe physical health risks. However, after fetal viability, abortion becomes increasingly dangerous, complicated, and physically traumatizing. Thus, legal prohibitions aside, doctors are unwilling to perform the potentially dangerous procedure unless it is necessary in the face of more serious threats to the mother's physical health." Therefore, when I refer to maternal health in the context of post-viability abortions I will always be referring to the physical health of the women undergoing the procedure. Other general references to maternal health in the earlier stages of pregnancy will include factors related to mental and emotional health, including youth, trauma, and depression. Two other distinctions are important to a thorough understanding of "maternal health" as it is used in the abortion context. First, there are several ways that a woman's health can be jeopardized by a problem pregnancy, leading a woman to seek an abortion. The pregnancy itself may be dangerous to the woman's health, even if she is otherwise healthy, particularly if the fetus is severely deformed. Fetal death, seizures, stiffening, or malformation place the mother at risk of a variety of complications including severe hemorrhaging, amniotic embolism (the entry of amniotic fluid into the bloodstream), ruptured uterus, and blood poisoning and shock from the breakdown of fetal tissue. In addition, pregnancy can exacerbate pre-existing health problems such as diabetes. Also, the treatments of some life-threatening ailments, such as chemotherapy for cancer or intensive drug therapy for HIV, may be incompatible with pregnancy. For the purposes of this article, I will include all three types of health risk in my definition of "maternal health." 58 Second, it is worth pointing 56. 410U.S. 179, 192(1973). 57. See, e.g. CHRISTOPHER TIETZE, INDUCED ABORTION: A WORLD REVIEw, 1983 65 (5th ed. 1983) (noting that, "[e]ven when not prohibited by law, abortions are infrequently performed at more than 20 weeks of gestation"); Stanley K. Henshaw, Factors Hindering Access to Abortion Services, 27 FAM. PLAN. PERsP. 54, 56 (1995) (stating that, "[a]lthough abortions after 26 weeks of gestation are unrestricted in many states, they are rarely performed"). See also SEX DISCRIMINATION AND THE LAW 1043 (Barbara Allen Babcock et al. eds., 2d ed. 1996) (describing a study which indicates that, during a time in which Puerto Rico had no legal viability cutoff, its percentage of late abortions was comparable to that of states which limit post-viability abortions to situations where the life or health of the mother is endangered). But see Women's Med. Prof'l Corp. v. Voinovich, 911 F. Supp. 1051, 1078-81 (S.D. Ohio 1995), aff'd, 130 F.3d 187 (6th Cir. 1997) (finding that, in extreme cases such as where a pregnancy was the result of rape or incest or where the fetus will be bom with horrifying and fatal defects, doctors should be able to take the preservation of a woman's emotional health into account, even for post-viability abortions). 58. These distinctions are not purely diagnostic, but actually may have legal significance. Depending on how a statute restricting abortion is worded, it might be relevant whether or not the pregnancy itself is the source of the health risk or if the health problem was pre-existing. Also, some participants in the debate have