Maryland legislators on both sides of the abortion issue say the state is not likely to change its liberal abortion law despite a U.S. Supreme Court ruling that cleared the way for more restrictive state laws.
This week the court upheld a ban on a late-term procedure that critics call "partial-birth abortion." Some physicians characterized the ruling as an intrusion by politicians and judges into the medical profession, saying it interferes with a physician's ability to safely care for patients.
The federal ban, passed by Congress in 2003, limits a particular type of abortion after the pregnancy's first trimester that doctors know as "intact dilation and extraction," or "D&X.;"
"My concern is that this law is about trying to attack physicians ... and being used to harass and constantly put physicians on the defensive," said Tessa Madden, an obstetrician and clinical instructor at the Johns Hopkins University School of Medicine.
Many physicians contend that the ban and the court decision upholding it are so vague and inconsistently worded that doctors are perplexed about what they can legally do without risking prosecution and prison.
The ban imposes a restriction on current state law, which is generally more permissive than many other states. That law, passed to keep abortion legal here even if the Supreme Court's 1973 Roe v. Wade decision is overturned, was approved in a 1992 statewide referendum. The margin was 62 percent to 38 percent in favor of abortion rights.
Since then, attempts to limit abortion have failed to pass a Democratic-dominated legislature. With the court's invitation in this week's ruling, lawmakers might introduce bills to discourage women from terminating their pregnancies. But passage would be just as hard, said state Sen. Nancy Jacobs, a Republican from Cecil and Harford counties.
"You may get more citizens saying it is time to do more, but that doesn't alter the atmosphere or the political points of view of anyone," Jacobs said.
Jacobs said that in the past, she and other anti-abortion legislators have failed to win passage of bills that would require a judge, rather than a doctor, to waive parental notification when minors seek abortion. They also have unsuccessfully tried to require clinics to report abortions performed.
Maryland Sen. Andrew P. Harris, a Baltimore County Republican, said he fears that the U.S. attorney's office in Maryland might decide not to prosecute so-called partial-birth abortion cases. He would like to pass a state law to ensure that the state as well as the federal government could bring charges against physicians.
"I think a clear majority of Marylanders oppose partial-birth abortion," said Harris, who is a physician.
Sharon M. Grosfeld, a former Democratic state senator from Montgomery County, said Maryland is not going to back away from its history. "We have time and again demonstrated what a very strong state we are when it comes to protecting a woman's right."
Maryland has fewer restrictions on mid- and later-term abortions than most states. Abortions are legally allowed until the fetus is viable, which is widely considered about the 24th week of pregnancy but which is left to the doctor to determine.
Maryland law has an exception after viability if the mother's life is in danger or if the fetus has serious birth defects.
The procedure at the focus of the high court's decision is one of the rarest performed. Estimates of the number of intact D&X; abortions in the United States range from 2,000 and 5,000 a year.
More than 11,500 legal abortions of all types were performed in Maryland in 2000, according to the Centers for Disease Control and Prevention. But there are no data available on how many of those were intact D&X;'s.
Most second-semester abortions involve another procedure, which remains legal, called "dilation and evacuation," or D&E.;
Doctors dilate the patient's cervix and remove the fetus, usually in pieces. The procedure typically takes about 15 minutes and patients can go home the same day.
Some doctors say it is ironic that the banned procedure can be safer and less traumatic to both the fetus and the patient.
In some cases, doctors and their patients choose to do intact D&X.; But it's not truly intact. To minimize the dilation needed to remove the fetus, doctors insert an instrument into the skull and remove the contents, collapsing the head so it can be removed more easily and safely.
That is what strikes many people as most objectionable about the procedure.
But when it is the safest one available for a particular patient, doctors say it becomes the best choice. "There is less trauma to the cervix," said Dr. Jody Steinauer, assistant clinical professor of obstetrics and gynecology at the University of California San Francisco.
And sometimes it's medically critical. Madden cited the example of a woman with congestive heart failure where her condition demanded minimizing blood loss and her time under anesthesia.
The federal law provides exemptions for doctors when the patient's life is at stake and protects them if they plan to perform a D&E; but the fetus slips out intact.
Some doctors complain that there is no exemption for situations in which the woman's health is at risk and no clear definition of what that means.
"Read the [court] case carefully," said Dr. David A. Grimes, former chief of the CDC's abortion surveillance project. "It has nothing to do with health. ... It's about aesthetics. But much of what we do in medicine and surgery is not pleasant. We do what's best for our patients."
The wording of both the federal law and the ruling is so vague and non-medical, some doctors say, they can't tell what's prohibited.
"You may go in with the intent of doing a non-intact procedure and end up doing something illegal under the law," Madden said.
She fears the uncertainty will reduce the number of doctors providing abortions, making the procedures less accessible and more costly.
"Each of us, when we became a doctor, took an oath to let nothing stand between us and the best interests of our patients," Grimes said. "This is a direct threat to that oath."