STATEMENT
of
Warren M. Hern, M.D., M.P.H., Ph.D.
Director
Boulder Abortion Clinic
1130 Alpine
Assistant Clinical
Professor
Department of
Before the Judiciary
Committee
of the
Concerning S. 939
Thank you, Mr. Chairman, for the opportunity to submit a
statement to this body concerning S. 939, the so-called "Partial Birth
Abortion Ban Act" of 1995. I appreciate the invitation to prepare a
statement that came to me from Senators Kennedy, Biden, and Specter as members
of the Judiciary Committee. I also deeply appreciate the joint request by Senators
Hank Brown and Ben Nighthorse Campbell of
My name is Warren Martin Hern. I am a physician engaged in
private medical practice in
Since 1973, I have provided abortion services in
In 1980, while continuing my medical practice, I resumed my
graduate work in
My publications since 1975 include three books and some 40
professional papers concerning abortion and other aspects of fertility.1 My medical textbook, Abortion Practice, was published by
J.B. Lippincott Company of
In addition to my private medical practice, I hold several
academic appointments. I am Assistant Clinical Professor of Obstetrics and
Gynecology at the
Senate Bill 939
The bill under consideration, S. 939, is called the
"Partial Birth Abortion Ban Act," but there is no such thing as a
"partial birth abortion." This is an operation which has never been
described in the medical literature, and as far as I know, it does not exist.
The bill's sponsors describe some procedures which have been performed for many
generations in the case of obstetrical emergency. The operation mentioned in
the Senate bill contains some elements of a procedure called an "Intact D
& E," or "Intact Dilation and Evacuation" by some physicians
during the course of scientific discussions of late abortions, but I have never
heard the term, "partial birth abortion" in these discussions. As written,
the bill describes aspects of an operation which is performed routinely by some
physicians currently, but they are procedures with a long history and wide
application by other physicians on a sporadic and unpredictable basis. The
bill's language could be interpreted to refer to virtually any second trimester
or later abortion. If made more specific, it has the potential to single out
and discriminate against specific doctors, some of whose procedures may be
alleged to be consistent with the language of the bill. Doctors are poor judges
of these subtleties when presented with the exigencies of patient needs. These
circumstances mean that the bill can produce a "witch hunt"
atmosphere that chills medical practice and interferes with good patient care
by conscientious doctors.
History of Intact D & E
Evidence from the ancient city of
The specific operation described by the bill's sponsors
involves routine version of a 20-week or later fetus into a breech (feet first)
position, followed by extraction of the fetus up to the neck, when the base of
the fetal skull is perforated with surgical instruments. At that point, the
contents of the fetal skull are removed by vacuum aspiration using a hollow
cannula. Since the fetus is usually dead by this point, whether due to an
induced abortion or miscarriage, and since the head is under great pressure,
the cerebral contents are often extruded without any intervention by the
surgeon. The head collapses, permitting delivery of the more or less intact
fetus.
A variation of this procedure, which is usually preceded by
several days of treatment to open the uterus so as to permit passage of the
fetus, is decompression of the fetal skull as it presents first in the sequence
of expulsion or delivery of the fetus. Again, the fetus is usually dead at the
point at which this occurs. I think fetal death is often brought about by
infarction (death) of the placenta as the result of other kinds of treatment
such as those that cause uterine irritability.
A common approach to abortion by some obstetricians who have
discovered a severe fetal anomaly in an advanced pregnancy is to place
prostaglandin suppositories in the vagina followed by induction of labor and
expulsion of the fetus. It is my understanding that the maneuvers described by the
sponsors of S. 939 are followed by attending physicians throughout the nation
when the safety of the woman having the abortion is at issue.
Another approach, which I favor and which is followed by some
other physicians, is to induce fetal death on the first or second day of
treatment of the cervix. This requires an injection of a medication into the
fetus under (usually) ultrasound guidance. This is the procedure which I and
one or two other physicians follow. It is accompanied by other forms of treatment,
but these vary according to the physician. In the case of a breech presentation
of a dead fetus, the procedure described by sponsors of S. 939 is routinely
followed.
Advantages of Intact D & E
The principal purpose of an abortion is to end a pregnancy which
threatens a woman's life or which she wants terminated. The manner of ending
the pregnancy must be determined by safety factors for the woman and
acceptability of the methods used. The considerations for the fetus are
secondary to the safety and welfare of the woman seeking the abortion.
The possible advantages of Intact D & E procedure include
a reduction of the risk of perforation of the uterus. Since most women seeking
abortions are young women who hope to reproduce in the future, having a safe abortion
technique for late abortion is of paramount importance, aside from the
prevention of complications. Another advantage of the Intact D & E is that
it eliminates the risk of embolism of cerebral tissue into the woman's blood
stream. This catastrophe can be almost immediately fatal.
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 operating room. That would be dangerous and
unacceptable.
Fetal Considerations
According to biologist Clifford Grobstein and others, fetal neurological
development well into the early part of the third trimester is insufficient for
the fetus to experience what we regard as "pain." In Professor
Grobstein's book, Science and the Unborn (1988, Basic Books, New York),
"...an adequate neural substrate for experienced pain does not exist until
about the seventh month of pregnancy (thirty weeks), well into the period when
prematurely born fetuses are viable with intensive life support." Like any
other mammalian organism, fetuses have enough neurological development to
permit certain reflexes, but this is not the same as pain. Interpretation of these
reflexes as "pain" is highly misleading.
Duration of pregnancy and reasons for late abortion
While about 1% of all abortions are performed after
about 20 weeks of pregnancy, only about .03%, or fewer than 500, are performed
after 26 weeks. The majority of these are now performed by me or one of my
medical colleagues. These abortions are almost always performed for the most
tragic reasons of severe fetal anomaly, genetic disorder, or immediate risk to
the woman's life. They are not performed for frivolous reasons, contrary to
statements by those opposed to abortion.
For example, one woman was recently brought to me by air
ambulance from
Another woman with an advanced pregnancy was referred to me by
a colleague in northern
On another occasion, a woman had been referred to me from
Mr. Chairman, I did not have time with any of these cases to
consult the United States Senate on the proper method of performing the
abortions.
Comparative risk of abortion and term birth
Without medical treatment, the risk of death due to
pregnancy and childbirth is in the range of 1%. This is measured by the
maternal mortality ratio, which is the proportion of women dying from pregnancy
or its effects to the number of live births. For example, in 1920, the maternal
mortality ratio was 680 per 100,000 live births. 680 women died for each
100,000 live births. In the Peruvian Amazon, where I conduct medical research
from time to time, the maternal mortality ratio is about 1000 deaths of women
per 100,000 live births, or about 1%.
By 1960, the
By contrast, the death rate in abortion is about 2 or 3 per
1,000,000 procedures, or about .2-.3 per 100,000 abortions. For early abortion,
the abortion mortality rate is less than 1 per million procedures.
This means that a woman is ten or more times likely to die if
she carries a pregnancy to term than if she has an abortion. For women at high
risk of pregnancy complications, the risk of death may be 100 times greater for
carrying the pregnancy to term.
Late abortion is a more dangerous procedure than early
abortion, but the evidence is that it is still much safer in terms of mortality
risk than carrying a pregnancy to term. The risk of a major complication is
about 25-30% with term pregnancy, but it is much lower in late abortion. In a
recent medical article of mine published in the journal Obstetrics and
Gynecology in February, 1993, I described the experience of 124 patients for
whom I performed abortions in pregnancies complicated by severe fetal anomaly,
diagnosed genetic disorder, or fetal death. The average length of pregnancy was
23 weeks with a few over 30 weeks. The major complication rate was less than 1%
(one patient). In another comparative study of mine published one year ago in
the American Journal of Obstetrics and Gynecology, 1001 patients whose
pregnancies ranged from 13 to 25 weeks in duration experienced a major
complication rate of 0.3%. Only 3 of these patients experienced a major
complication.
Implications of S. 939 for medical practice
Late abortion as currently practiced in the United States is a safe procedure
that saves women's lives. The medical community has not determined the very
best way to perform these procedures, and that cannot be determined by any
legislature. That is a matter for scientific study and medical judgment.
If S. 939 is passed into law, any physician performing any
second trimester or later abortion could be prosecuted by an aggressive public
prosecutor. It would cause each physician to have to make a legal and political
judgment with each patient as to whether prosecution would follow the exercise
of the physician's judgment. It is an unwarranted and unacceptable intrusion
into the practice of medicine.
The women who seek late abortion always do so for serious
reasons. My experience has been that the women who seek my services are
experiencing great pain and anguish, along with their family members, as the
result of a very difficult decision. Even those who have all the information in
a particular case have difficulty in determining the best thing to do. As a
practicing physician, I do not see how any governmental body can effectively or
rationally control these decisions.
S. 939 is an irretrievably bad piece of legislation that
cannot be made acceptable by any means, and I urge the Senate to defeat it at
the first opportunity.
References
1. Hern, W.M.: Laminaria in abortion: use in 1368 patients in first
trimester. Rocky Mountain Medical Journal 72:390-395, 1975.
Hern, W.M. and A. Oakes: Multiple laminaria treatment in early
midtrimester outpatient suction abortion. Advances in Planned Parenthood
12:93-97, 1977.
Hern, W.M.: The concept of quality care in abortion services.
Advances in Planned Parenthood 13:63-74, 1978.
Hern, W.M., W.A. Miller, L. Paine, and K.D. Moorhead:
Correlation of sonographic cephalometry with clinical assessment of fetal age
following early midtrimester D & E abortion. Advances in Planned Parenthood
13:14-20, 1978.
Hern, W.M. and B. Corrigan: What about us? Staff reactions to
D & E. Advances in Planned Parenthood 15:3-8, 1980.
Hern, W.M.: Outpatient second-trimester D & E abortion
through 24 menstrual weeks' gestation. Advances in Planned Parenthood 16:7-13,
1981.
Hern, W.M.: Correlation of fetal age and measurements between
10 and 26 weeks of gestation. Obstetrics and Gynecology 63:26-32, 1984.
Hern, W.M.: Serial multiple laminaria and adjunctive urea in
late out patient dilatation and evacuation abortion. Obstetrics and Gynecology
63:543-549, 1984.
Hern, W.M.: Abortion Practice. J.B. Lippincott Company,
Hern, W.M.: Evolution of second trimester abortion techniques.
In Prevention and Treatment of Contraceptive Failure, U. Landy and S.S. Ratnam,
eds.
Hern, W.M.: Use of prostaglandins as abortifacients. In
Gynecology and Obstetrics, Chapter 58, J.W. Sciarra, Ed., Philadelphia, J.B.
Lippincott Co, 1982. Published in 1988.
Hern, W.M.: Abortion Practice. Softcover reprint. Alpenglo Graphics, 1990, 368 pages, 59
illustrations, 3 color plates, 16 tables. Available from
Alpenglo Graphics, 1130 Alpine,
Hern, W.M., C. Zen, K.A. Ferguson, V. Hart, and M.V. Haseman:
Outpatient abortion for fetal anomaly and fetal death from 15-34 menstrual
weeks' gestation: Techniques and clinical management. Obstetrics and Gynecology
81:301-306, 1993.
Hern, W.M.: Cervical treatment with DilapanTM prior to second trimester dilation and
evacuation abortion: A pilot study of 64 patients. American Journal of
Gynecologic Health 7(1):15-18, 1993.
Hern, W.M: Laminaria versus Dilapan osmotic cervical dilators
for outpatient dilation and evacuation abortion: Randomized cohort comparison
of 1001 patients. American Journal of Obstetrics and Gynecology 171:1324-1328,
1994.
Hern, W.M.: Abortion:
Medical and Social Aspects. In Encyclopedia of Marriage
and the Family, David Levinson, Ed.