Since the Supreme Court legalized abortion for any reason, at any time of pregnancy, in 1973, there have been repeated incidents of late-term abortions and live-birth abortions. Before late-term abortionist Kermit Gosnell was convicted in Philadelphia in May 2013, a long line of late-term abortionists—including Joseph Melnick, Raymond Showery, Abu Hayat, Jesse Floyd, and Kenneth Edelin—were prosecuted for killing babies born alive after abortion. Public opinion has consistently found these incidents abhorrent for obvious reasons. Even a Huffington Post poll found majority support for a five-month limit to abortions.
The Supreme Court justices thrust America into this unfortunate situation by arbitrarily legalizing abortion up to viability (and beyond) in 1973. The court’s national edict has isolated the United States as one of only four nations (including China, North Korea, and Canada) that allows abortion for any reason after fetal viability up to nine months.
The Supreme Court Ignored Medical Recommendations
As I found in the justices’ papers, and described at length in “Abuse of Discretion: The Inside Story of Roe v. Wade,” the justices had no evidentiary record by which to assess viability in the Roe v. Wade or Doe v. Bolton cases—no trials, no evidence, no medical data, no expert witnesses. No medical organization urged the justices to expand the abortion “right” as far as viability. The justices ignored common medical practice at the time that set 20 weeks as the line between an abortion and an early delivery.
The justices and lawyers never addressed viability during four hours of oral argument in the Roe and Doe cases in December 1971 and October 1972. The word “viability” was never mentioned once. (One can confirm that by listening to the original audio or reading the transcripts at www.oyez.org.)
Only after the second round of arguments in October 1972 did some justices lobby Justice Blackmun to expand the “right” from 12 weeks to 28 weeks (the point at which they considered viability in 1972). The “viability rule” was imposed without any evidence or consideration of maternal health, and opened the door to late-term abortions that the justices should never have permitted.
More Women Die from Late-Term Abortions
But there is another compelling reason why a five-month (20-week) limit is common sense: late-term abortions are considerably more threatening to women’s health. The increased mortality from late-term abortions is as clear as any medical fact can be in America’s dysfunctional system of voluntary abortion reporting by providers. A 2004 medical study published by Dr. Linda Bartlett in Obstetrics & Gynecology found that the relative risk of abortion-related mortality jumped from 14.7 per 100,000 women at 13-15 weeks gestation. It doubled by16 to 20 weeks and doubled again at or after 21 weeks. Add to that the frequent inaccuracy of gestational dating by doctors and a clear legal limit at 20 weeks is imperative to protect women.
Why 20 weeks? Because current judicial limits, and current medical evidence, provide the strongest support for a limit at that time. The Supreme Court’s most recent abortion decision in 2007 in Gonzales v. Carhart questioned late-term abortions. The court has long suggested that the states may enact stronger limits at the point at which abortion becomes more dangerous than childbirth. The best medical evidence of fetal pain is strongest at 20 weeks. And the best medical data (the Bartlett study) shows the greatly increased rate of maternal mortality after 20 weeks.
Late-term abortions are more dangerous for several reasons. With late-term abortions, there is increased risk of infection and hemorrhage, embolism, perforation, or rupture of the uterus, and complications from anesthesia. The life and health of women is threatened by miscalculating the gestational age in late-term abortions.
The Implications for Women’s Health Reach Farther than Death
There are also the long-term risks that late-term abortions exacerbate, including the risk of pre-term birth in future pregnancies. Full-term pregnancy provides a measure of protection against breast cancer. A late-term termination increases the risk of breast cancer, as a 1997 study by Mads Melbye in the New England Journal of Medicine found (“With each one-week increase in the gestational age of the fetus, however, there was a 3 percent increase in the risk of breast cancer.”)
A clear 20-week limit is considerably more protective of women’s health than the arbitrary viability rule. Women don’t feel viability, as they do fetal movement (quickening). They are completely dependent on doctors to determine viability, which is based on technical estimates of fetal survival at various weeks of gestation. Such a bright line against late-term abortion is necessary to protect maternal health; viability doesn’t do it.
A 20-week limit is consistently supported by polling data. Since 2011, 13 states have enacted a 20-week (or five-month) limit on abortions. The 13 states have passed those 20-week limits for several reasons, guided by a number of complex and difficult factors. Based on the guidance of the Supreme Court, it is important for state limits to be carefully focused on protecting both the unborn child and maternal health. Based on all available evidence, it is the earliest prohibition that will likely make it past the current Supreme Court.
Congress is now considering a five-month bill. Iowa, Maryland, Montana, Oregon, South Carolina, Virginia, and West Virginia have also introduced 20-week abortion limits in this legislative session, with other states considering them. With the exception of Iowa and Maryland’s bills that consider the health of the mother, the pending legislation would be greatly strengthened if it included these well-documented risks to maternal health that justify a five-month limit. It’s time to recognize that abortion harms women, and move to protect both the health of women and their unborn children.