13 March 2006

The Politics of Late Term Abortion

The polls show us that most Americans are ambivalent about abortion.

In this latest poll, 19 percent of Americans said abortion should be legal in all cases; 16 percent said it should never be legal; 6 percent did not know. That left nearly three-fifths somewhere in between, believing abortion should be legal only under certain circumstances.

Dicing the same data a different way, 52 percent of those surveyed thought abortion should be legal in most or all cases; 43 percent said it should be illegal most or all of the time.

The survey, taken from Feb. 28 to March 2, found that men's and women's views were similar, although men were a little more likely to be undecided.

With slight shifts one way or another, this is about where Americans have been for decades. . . .

In the AP poll, two-thirds of Democrats said abortion should be legal in all or most cases, while two-thirds of Republicans said it should be illegal all or most of the time.

Bowman said about 9 percent to 13 percent of voters tend to cast their ballots based on a candidate's stance on abortion, with Republicans tending to benefit the most from these single-issue voters at the national level and results more mixed in state races.

A South Dakota style ban on abortion except in cases where the health of the mother are at stake is a political loser in Colorado and in most of the United States.

The politics are much more fluid in the case of one of the latest wedge issues, an effort by Michael Lawrence to put an issue on the ballot that would criminalize abortion in the case of a viable fetus except where the health of the mother is at stake. This is something that Roe v. Wade, interpreted by the current right leaning federal courts might very well permit.

Of course, one of the big issues with Lawrence's proposal is that viabilty is a moving target, and one subject to good faith dispute. One anti-abortion group states:

Survivability rate is based mainly on the age of the baby. 24 weeks after conception, a baby has about a 40% chance of survival without its mother. 28 weeks after conception, the baby's chance is up to 90%. 32 weeks after conception, the baby's chance is over 99.9%.

A typical pregnancy is 39 weeks.

They also argue that even very low birthweight babies (under 2 pounds) do not suffer a sufficiently high risk of a mental or physical handicap to cause that risk to be considered a grounds for non-viability.

According to Religious Tolerance.org:

The definition used by the medical and pro-choice communities is: the end of a pregnancy before viability of the fetus. i.e. the termination of the process of gestation after the time when the zygote attaches itself to the uterine wall (about 14 days after conception), but before the fetus is possibly capable of surviving on its own. (currently 23 to 28 weeks from conception). According to the Encyclopedia Britannica, the American College of Obstetricians and Gynecologists has defined abortion as occurring before the 20th week (134th day) of gestation.

Planned Parenthood of California states:

[T]he Supreme Court made clear that viability is a medical determination, which varies with each pregnancy, and that it is the responsibility of the attending physician to make that determination.

These principles are embodied in the laws of most states. Forty states have enacted legislation severely limiting abortions after fetal viability. Laws in 32 states limit abortions after viability to cases in which the woman's life at serious risk or her health is endangered, although five of the 32 also permit abortions in cases of fetal defect. Laws in seven states permit abortions after viability only when the woman's life is endangered; California is the only state where laws ban late abortions for any reason.(3)

What Is Fetal Viability?

A fetus is viable when it reaches an "anatomical threshold" when critical organs, such as the lungs and kidneys, can sustain independent life. Until the air sacs are mature enough to permit gases to pass into and out of the bloodstream, which is extremely unlikely until at least 23 weeks gestation (from last menstrual period), a fetus cannot be sustained even with a respirator, which can force air into the lungs but cannot pass gas from the lungs into the bloodstream.(4)

While medical advances have increased the survival of infants born between 24 and 28 weeks of gestation, the point of viability has moved little over the past decade; at the earliest, it remains at approximately 24 weeks, where it was when the Supreme Court decided Roe -- a fact acknowledged by the court in its recent decision in PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY.(5) A study of infant survival by researchers at Case Western Reserve University Medical School found that the rate of survival for infants born before 25 weeks gestation has not improved appreciably in recent years.(6)

According to a brief submitted to the Supreme Court in WEBSTER V. REPRODUCTIVE HEALTH SERVICES(7) by more than 150 distinguished scientists and physicians, "There are no medical developments anticipated in the foreseeable future that would bring about adequate fetal lung function prior to 23 or 24 weeks of gestation."(8)

Later term abortions are relatively rare. About 1% of abortions take place at 21 or more weeks, and 95% of abortions take place before 16 weeks. (More statistics here.) This, on one hand, makes this a questionable concern -- one suspects that increased regulation and fear of liability is as important in a proposal like Lawrence's (which leaves no safe harbor gestation period upon which a doctor can rely) as reducing the number of abortions which take place. But, on the other hand, this makes women who want or need late terms abortions more politically vulnerable. Millions of women have had earlier term abortions, far fewer have had abortions later in pregnancy.

Late term abortions are not typical of abortions generally. For example:

In fact, adolescents account for a third of all late-term abortions and are 81% more likely to seek abortion after 20 weeks because of the difficulty they have in arranging an abortion that is compounded by parental consent and notification laws, violence against clinics, and the vitriolics of fundamentalist preachers and politicians.

Life of the mother is far more often a major concern in such abortions as well.

Another intellectually related issue is the notion of a fetal homicide law which punishes harms to a woman that cause a loss of a pregnancy with a variety of definitions and conditions.

Passage of a measure like this is on one hand a step back, because it is another restriction on abortion, and on the other hand, hurts further regulation because the parade of horribles grows increasingly less horrible. For example, the argument in favor of banning "partial birth abortion" seems far less clear when, by law, it is something that happens only when the life of the mother is at stake, or when it is a choice of procedure in a relatively early term abortion.

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