New York’s law legalizing abortion after a child’s gestational age of 24 weeks was caught in the crosshairs of President Trump’s state of the union address a few weeks ago. “Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments before birth,” said the president.
Dozens of news outlets rushed to quibble with his words. An NBC “fact check” labeled the statement false. The law allows abortions “after 24 weeks if the fetus is not viable or when it’s necessary to protect the life of the mother,” the fact-checker reported.
Defenders of this law and those like it say it is moderate and compassionate, concerned only with making sure women with life-threatening pregnancy complications are not left to die. But if one looks at the medical and legal context for the law and understands what exactly the terms mean, it becomes clear that the reality is much less straightforward—and much darker.
Viability and Abnormalities
First, let’s look at the idea of “fetal viability.” In Roe v. Wade and many state abortion laws, “viability” means the fetus has reached a sufficiently advanced gestational age to be able to survive outside the womb—22 weeks, with current medical technology.
But the New York law uses the term “viability” in an unusual way to signify a life-limiting birth defect. Some fatal birth defects, such as Potter’s syndrome or thanatophoric dysplasia, are often detected at the 20-week ultrasound, with abortion recommended as the only option.
But ultrasound images are not perfect. Some babies diagnosed by ultrasound as having lethal defects have turned out to be completely normal. Even when severe birth defects are present, babies can undergo surgical repair after birth.
Speaking of children born with omphalocele (organs outside of the body), former surgeon general and renowned pediatric surgeon C. Everett Koop noted: “The prognosis usually is good….the first child I ever did, with a huge omphalocele much bigger than her head, went on to develop well and become the head nurse in my intensive care unit many years later.”
In the case of truly lethal birth defects, a child can be given perinatal hospice care instead of aborted. Perinatal hospice involves continuing the pregnancy until labor begins and giving birth normally to the baby, in a setting of comfort and support until natural death occurs. It is similar to what is done for families with terminally ill older children and adults. The family can spend the newborn’s life—be it minutes or hours—in comfort, with pain management available for the infant, until the baby passes away.
Families who have experienced perinatal hospice say that brief time with their child is a precious memory that they would not trade. In contrast, many couples who have abortions for birth defects experience adverse long-term psychological and relational effects, and children who learn that they have siblings who were aborted can suffer feelings of worthlessness, guilt, distrust, and rage.
Parents may also be counseled that their pre-born babies have conditions “incompatible with life,” such as Trisomy 18 or Down syndrome. These often non-fatal conditions, which cause mental and physical developmental problems, have been used to justify abortion. But even the most severely disabled of these children may go on to live for days, months, or years after birth. Whatever the prenatal diagnosis, they are still human beings, and they are alive.
What About the Mother’s Health?
What about late abortion to preserve maternal “health”? In Roe v. Wade, the Supreme Court authorized abortion beyond fetal viability to protect the “life or health” of the mother. But in Doe v. Bolton, the companion case to Roe, the court gave such a sweeping definition of “health” (including physical, emotional, psychological, or familial well-being) that it effectively allowed states to permit abortion on demand throughout an entire pregnancy.
To say that the New York law permits late-term abortions for “health” reasons implies that late-term abortions will only occur in life-or-death situations. But due to the Supreme Court’s extremely broad definition of “health,” many of these situations are simply not life-or-death at all.
Statistics compiled by the Guttmacher Institute indicate that, in 2014, about 11,100 abortions were performed after 21 weeks, when babies have the ability to feel pain. Despite this large number of abortions, data about what drives these decisions are less than robust. But the information we do have reveals that the reasons given for these abortions are frequently similar to those motivating early-term abortions: relationship problems, young or old maternal age, and education or financial concerns. Abortion law defines “health” so broadly it has made many late abortions effectively elective, as it requires no genuine threat to the mother’s life.
Advocates of abortion insist that late abortion must be kept legal because certain serious maternal health problems require abortions. This is completely false. There is no medical situation in which late abortion is medically necessary to save the life of the mother. In a common late abortion technique, a lethal intracardiac injection is given, and labor is induced. This takes between two and four days and is not a procedure done in true emergency situations.
With any serious pregnancy complication, the pregnancy can be ended by inducing labor or delivering the baby via C-section—saving both the mother’s and the baby’s life.
Late-Term Abortion Referrals Can Be Based in Ignorance
Murphy Goodwin, M.D., a distinguished professor of maternal-fetal medicine at the University of Southern California, writes that many abortion referrals based on maternal health situations reflect sheer ignorance from the referring physicians. Typically, he says, they are medical specialists who lack experience treating women with high-risk pregnancies.
Goodwin describes describes multiple cases in which women with severe life threatening conditions—from cardiac problems to cancer—were told that they needed to have abortions. In each situation, physicians were able to find solutions that allowed the mother to bring the baby to 28 weeks, at which point approximately 90 percent of babies survive in neonatal intensive care.
Current law has an unfortunate pro-abortion bias. Physicians face severe legal penalties if they do not inform a mother of all possible risks of continuing a pregnancy. Yet there is no legal penalty for recommending abortion, even with minimal to no justification.
Defending New York’s late-term abortion law as necessary to protect maternal and fetal health is disingenuous, if not downright dishonest. There is no situation in which late abortion is the only, or even the best, solution to a maternal or fetal health crisis.
Advocates of this New York law, and of other states’ permissive late-term abortion laws, must be prepared to defend late abortion for what it is: the unnecessary destruction of a viable baby.
There are alternatives to late abortion that protect women’s health and preserve the life and dignity of the baby. It is imperative that physicians, lawmakers, and citizens be informed of these alternatives, and understand that even in difficult situations, choosing life is always possible.
