Health Law Keyed to Furrow
Gonzales v. Carhart
Following the ruling of the United States Supreme Court in Stenberg v. Carhart, 530 U.S. 914 (2000), which struck down the Nebraska law that prohibited abortions in which the physician delivers a "substantial portion" of the fetus into the woman's vagina in order to perform a procedure that kills the "unborn child" and that lacked a health exception, Congress passed a federal statute, 18 U.S.C. § 1531, that basically bans partial-birth abortions and addresses the constitutionally offensive portions of the Nebraska statute. The federal statute, unlike the Nebraska statute, defined the prohibited procedure as a deliberate delivery of a "living fetus" to the point that either the entire head (in a head-first presentation) or any part of the fetal trunk past the naval (in a breech presentation) is "outside the body of the mother," followed by an "overt act, other than completion of delivery, that kills the partially delivered living fetus." In addition, the "overt act" requirement distinguishes the intact dilation and evacuation (D&E) from the standard D&E because the act that induces death, such as puncturing the skull with scissors and then vacuuming out the brain, must be separate from the delivery and occur after the delivery to an anatomical landmark. In contrast, in a standard D&E, death occurs in the womb by way of dismemberment by traction when pieces of the fetus are pulled through the cervix; that is not an overt act or a "delivery" covered by the statute. A third difference between the federal statute and the Nebraska statute is that the federal statute only applies when the physician's intention from the outset was to employ the prohibited procedure. It would not apply to an "accidental intact D&E" that may occur if the fetus unintentionally slips past one of the anatomical landmarks.
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