Several States Forbid Abortion After 20 Weeks
By ERIK ECKHOLM
Published: June 26, 2011
Dozens of new restrictions passed by states this year have chipped away at the right to abortion by requiring women to view ultrasounds, imposing waiting periods or cutting funds for clinics. But a new kind of law has gone beyond such restrictions, striking at the foundation of the abortion rules set out by the Supreme Court over the last four decades.
These laws, passed in six states in little more than a year, ban abortions at the 20th week after conception, based on the theory that the fetus can feel pain at that point — a notion disputed by mainstream medical organizations in the United States and Britain. Opponents of abortion say they expect that discussion of fetal pain — even in the face of scientific criticism — will alter public perception of abortion, and they have made support for the new laws a litmus test for Republicans seeking the presidency.
“The purpose of this type of bill is to focus on the humanity of the unborn child,” said Mary Spaulding Balch, director of state legislation for the National Right to Life Committee. “Fetal pain is something that people who are in the middle on the abortion issue can relate to.”
Since Nebraska passed the first 20-week limit last year, Idaho, Indiana, Kansas, Oklahoma and, this month, Alabama have followed. A similar law has advanced in the Iowa legislature, and anti-abortion campaigners have vowed to promote such laws in more states next year.
The laws directly conflict with the key threshold set by the Supreme Court: that abortion cannot be banned until the fetus becomes viable. Viability, the ability to survive outside the womb, usually occurs at the 24th week of pregnancy or later, and is determined in individual cases by a doctor, said Elizabeth Nash, a policy analyst in Washington with the Guttmacher Institute, a research group.
The laws have entered into Republican presidential politics. Support for fetal pain legislation is one item in a pledge that anti-abortion groups are asking potential candidates to endorse. Five have signed, but Mitt Romney and Herman Cain have been criticized for refusing to take part in the pledge, which also asks leaders to make opposition to abortion a test for all appointments and to end taxpayer funding of abortion and Planned Parenthood.
“These 20-week laws are absolutely unconstitutional,” said Nancy Northrup, president of the Center for Reproductive Rights, a legal group. No one has yet challenged the laws in court, in part because they are so new that few potential plaintiffs have emerged. But advocates for abortion rights are also proceeding warily, fearful that a weak case could end up in the Supreme Court and upend the legal structure established by Roe v. Wade in 1973 and subsequent decisions, with fetal viability as the all-important dividing line between access to abortion and stringent limits.
“We will file a legal challenge when the circumstances and timing are right,” Ms. Northrup said.
Ms. Balch and other advocates say they relish a test of the laws in the Supreme Court, where they believe a narrow victory might be possible, changing the terms of the abortion debate for good.
Only 1.5 percent of the 1.21 million abortions each year, or about 18,000, occur later than 20 weeks after conception, and many of these involve medical emergencies, said Ms. Nash of the Guttmacher Institute.
Still, the new laws also place stricter, and what some say are unconstitutional, limits on medical exceptions as well.
They permit abortions after 20 weeks only to avert the death or “serious physical impairment of a major bodily function” of the mother, or to avoid the death of the fetus. There are no exceptions for rape or incest, none for less dire medical threats or mental health.
Nor, under the laws, is an abortion allowed after 20 weeks when a fetus is discovered to be catastrophically impaired but still living, as is sometimes discovered by routine ultrasounds in midpregnancy.
Last fall, Danielle and Robb Deaver of Grand Island, Neb., found that their state’s new law intruded in a wrenching personal decision. Ms. Deaver, 35, a registered nurse, was pregnant with a daughter in a wanted pregnancy, she said. She and her husband were devastated when her water broke at 22 weeks and her amniotic fluid did not rebuild.
Her doctors said that the lung and limb development of the fetus had stopped, that it had a remote chance of being born alive or able to breathe, and that she faced a chance of serious infection.
In what might have been a routine if painful choice in the past, Ms. Deaver and her husband decided to seek induced labor rather than wait for the fetus to die or emerge. But inducing labor, if it is not to save the life of the fetus, is legally defined as abortion, and doctors and hospital lawyers concluded that the procedure would be illegal under Nebraska’s new law.
After 10 days of frustration and anguish, Ms. Deaver went into labor naturally; the baby died within 15 minutes and Ms. Deaver had to be treated with intravenous antibiotics for an infection that developed.
Ms. Deaver said she got angry only after the grief had settled. “This should have been a private decision, made between me, my husband and my doctor,” she said in a telephone interview.
Based on current knowledge, medical organizations generally reject the notion that a fetus can feel pain before 24 weeks. “The suggestion that a fetus at 20 weeks can feel pain is inconsistent with the biological evidence,” said Dr. David A. Grimes, a prominent researcher and a professor of obstetrics and gynecology at the University of North Carolina School of Medicine. “To suggest that pain can be perceived without a cerebral cortex is also inconsistent with the definition of pain.”
In one recent review, in March 2010, the Royal College of Obstetricians and Gynecologists in Britain said of the brain development of fetuses: “Connections from the periphery to the cortex are not intact before 24 weeks of gestation and, as most neuroscientists believe that the cortex is necessary for pain perception, it can be concluded that the fetus cannot experience pain in any sense prior to this gestation.”
Observations of physical recoiling and hormonal responses of younger fetuses to needle touches are reflexive and do not indicate “pain awareness,” the report said.
On a Web site summarizing their case, abortion opponents counter with recent studies by a handful of scientists claiming that a functioning cortex is not necessary for the experience of pain. They charge that the American and British obstetrical colleges are biased, dominated by abortion supporters.
“It seems to me that the other side is afraid of challenging this in the courts,” Ms. Balch, of the National Right to Life Committee, said of the 20-week limits. “But we’re going to get this, whether in court or passing it state by state.”
Caitlin Borgmann, a law professor at City University of New York School of Law and an advocate for abortion rights, said that it was frustrating to see “clearly unconstitutional” laws on the books in several states, so far without challenge.
But she defended the decision of legal groups to proceed cautiously, saying that “it’s better to wait for a good opportunity than to act too quickly,” with a chance of a disastrous loss.
“It has to be a very careful balancing,” she said.
Originally Posted by oldmunchkin
Reply With Quote
