Medical Gains Stir Debate on Abortion Ruling
Dr. David Stevenson moves quickly along a row of tiny, almost doll-like premature infants encased in incubators and attached to sophisticated life-saving devices in a neonatal intensive care unit at Stanford University Hospital.
Methodically, yet not without concern, he points out for a visitor the babies that are likely to survive--and those that are not. Only a decade or so ago, the odds on survival would have been much worse--and the babies’ improved chances for life now are a breathtaking tribute to the advancement of medical science.
Ironically, however, the steadily increasing ability of doctors to save life in its earliest stages has become a complicating factor in the intensifying national debate over the right to abort a life in the making.
Key Case 12 Years Old
It has been 12 years since the Supreme Court issued Roe vs. Wade, its landmark ruling legalizing abortion. But in some instances, a fetus that in 1973 stood practically no chance of survival outside the womb now can be saved. Then, viability--the ability to survive outside the womb--generally began around 28 weeks of pregnancy. Now the threshold has dropped to about 24 weeks, and some authorities even see viability at 22 weeks on the horizon.
These and other developments are reshaping the legal debate surrounding abortion and raising new questions about whether the court’s 1973 decision is outdated and inevitably unworkable, resting too heavily on the shifting sands of medical technology. New concern is being expressed by both sides--and some in the middle--of the abortion debate as the Supreme Court prepares to re-examine the issue once again in two cases on the docket in the term that begins Oct. 7.
“People are becoming increasingly aware that medical science is creating the possibility that we can abort a fetus that another doctor can save. That anomaly makes everyone--no matter what their view--take notice,” said Richard G. Wilkins, a Brigham Young University law professor who formerly served in the Justice Department in the Reagan Administration.
“Practically speaking, the court’s decision is already out of date,” said Stevenson, a pediatrician and professor at Stanford University specializing in care of the newly born. To Stevenson, who by his own description is “pro-choice” on the abortion question, it is “one of the great ironies of history” that now many babies are surviving after being delivered well before the 28 weeks the court viewed in 1973 as the approximate stage of viability.
Constitutional Right
In Roe vs. Wade, the court held that a woman had a constitutional right to abortion, subject to certain limits by the government. The justices surveyed the state of medical science at the time and established a standard based on three stages of a normal 40-week pregnancy: in the first 13-week trimester, the right to abortion was unqualified; in the second trimester, the state could regulate abortions to protect a woman’s safety; in the third trimester, when the fetus was viable, the state could bar abortion unless the life or health of the woman was threatened.
By drawing the line at viability, the court steered a middle course between the claim that life begins at conception and the contrary assertion that it begins at birth. In subsequent decisions, the court made clear that the viability determination itself was uncertain because of the numerous variables in individual cases--and that it was a determination to be made by the individual attending physician.
Abortions on Rise
Since 1973, the number of legal abortions in the United States has increased steadily. Now, about 1.5 million abortions are performed yearly--90% of them in the first trimester and only about 1% after the 20th week of pregnancy.
The Administration has urged the court to overturn the 1973 ruling when it hears two cases involving state regulations on abortion during its forthcoming term. The viability standard is arbitrary and unworkable because it inevitably must shift with advances in technology, the Justice Department said in filing a “friend of the court” brief.
The department cited a widely quoted dissent by Justice Sandra Day O’Connor in a 1983 decision, saying that Roe vs. Wade was on a “collision course with itself” as viability was expanding.
O’Connor speculated that with medical advances, viability in the first trimester might be possible in the “not-too-distant future.” While authorities say that prospect is unlikely, they do concede the inherent fragility of any legal ruling based on technology.
“It is by no means as striking and imminent as Justice O’Connor puts it, but the future danger is there,” Nancy K. Rhoden, a law professor at Ohio State University, said. “The decision bases a woman’s constitutional right on a medical and technical time line that is obviously going to change--and raises the question of whether viability deserved all the importance that was placed on it.”
New Policy Choices
Expanded viability also has forced the medical community to face new policy choices. Physicians are increasingly careful about second-trimester abortions that raise even the remote possibility of a live-born fetus. (No precise data is available, but such live births from abortions are regarded as very rare occurrences.)
One particular difficulty is estimating gestational age: Being off by one or two weeks can be critical to a physician trying to assess viability in a late second-trimester abortion.
As a result, some hospitals decline to perform elective abortions after 20 weeks, and many physicians observe even earlier deadlines, referring such cases to specialists in late-term abortions who will use methods that ensure that the fetus will not be born alive.
New dilemmas face patients as well. The process of amniocentesis, a method for determining probable genetic defects in the fetus, cannot be performed until early in the second trimester--but test results are often not ready until about the 21st week.
For a woman who decides on an abortion because of such defects, even a small delay risks that the fetus may be considered viable, increasing the difficulty of obtaining an abortion. If such an infant survives, with severe defects, a physician may face suit for wrongful birth or wrongful treatment. If the baby were allowed to die, the doctor conceivably could be prosecuted for homicide.
Defended as ‘Workable’
To be sure, Roe vs. Wade has its defenders--and many of them see the inherent flexibility of its viability standard as the factor that, contrary to critics, makes the decision “workable.”
Harvard law professor Laurence H. Tribe contends that the ruling is both logically and legally sound--allowing greater protection of the fetus as viability expands, while still preserving a woman’s right to an abortion before viability.
“It made sense for the court to adopt a medically variable standard,” Tribe said. “Its flexibility is its strength.”
Others note cautiously that viability is expanding in incremental steps--and express doubt that first-trimester viability or new techniques that would enable unwanted fetuses to be placed in artificial “wombs” are likely in the near future.
“From the impression that’s being created, you’d think that medical technology in this area is changing by leaps and bounds,” Barbara Radford, executive director of the National Abortion Federation, said. “But in fact, it’s not moving that fast.”
The Supreme Court’s move to re-examine the abortion question in the upcoming term surprised some authorities. Two years ago the court, reviewing an Akron, Ohio, ordinance and a Missouri state law that placed some restrictions on abortion, strongly reaffirmed Roe vs. Wade in a 6-3 ruling.
Procedural Tests
The new cases (Thornburgh vs. American College of Obstetricians and Gynecologists, 84-495, and Diamond vs. Charles, 84-1379) involve several procedural requirements for abortions enacted by the states of Pennsylvania and Illinois--the validity of some of which, at least, seemed to have been resolved by the court in 1983.
In those cases, the court will be considering several questions that could affect the ability of states to protect a viable fetus, including:
--Under what circumstances states may require a second physician to be present during the abortion of a viable fetus--and whether specific exceptions for “medical emergencies” must be made.
--Whether states may require use of a method of abortion that allows the greatest chance of a live birth, unless it would present a “significantly greater” medical risk to the woman.
--In what situations may doctors in halting a pregnancy be required to use the same standard of care for the fetus when it is viable or potentially viable as they do when a live birth is intended.
In both cases, federal courts of appeal struck down those and other provisions in the laws, saying they interfered with the right to abortion. The Justice Department argued that the appellate courts had gone out of their way to invalidate the laws, showing “an extreme and unseemly hostility to legitimate state regulation of abortion.”
Case Called ‘Flawed’
But the department went on to say that the root of the problem was Roe vs. Wade--and its “flawed” and abitrary legal framework--and that the 1973 decision should be overturned as “inherently unworkable.”
The two cases are plagued with technical procedural questions that could result in a narrow ruling by the justices. But if they wish, the justices could provide the states with new guidelines on how far they can go in protecting viable fetuses.
Twenty-six states, including California, hold physicians to the same standard of care for fetuses born live from abortions as for other premature infants. Some states have tried to go further: Nebraska, for example, sought to require efforts to save any aborted fetus with “any chance” for survival--a provision that was struck down for vagueness.
Many states have not enacted legislation to bar third-trimester abortions despite provisions of Roe vs. Wade that allowed them to do so, except when the life or health of the mother was at stake. According to the National Abortion Rights League, only 22 states, not including California, have enacted such laws.
Other issues are before the court as well--including whether states can require that women considering abortion be warned of the potential physical and psychological adverse affects and be informed of agencies that provide prenatal and childbirth assistance. Also in question is whether physicians can be required to tell patients that the use of IUDs and other “abortifacients”--unlike contraceptives--cause fetal death after conception.
Reversal Not Expected
Few experts expect the court will use the Pennsylvania and Illinois cases to overturn Roe vs. Wade. Abortion rights groups and others staunchly oppose any decision that would allow states to re-enact criminal sanctions against abortion. And legalized abortions seem to have gained general acceptance in the medical community as well.
A recent survey of members of the American College of Obstetricians and Gynecologists showed that of 1,300 respondents, 84% favored abortion in at least some circumstances.
Some medical authorities express reservations about the legal framework of the 1973 decision--but strongly oppose a return to the time when states were free to prohibit or substantially restrict abortions.
For example, Dr. Alan L. Lasnover of Cupertino, a Stanford professor and chairman of the abortion-sterilization committee of the California Medical Assn., personally opposes any law against abortion, while conceding that there is a case to be made for restricting late abortions to life-threatening situations or where the fetus suffers serious genetic abnormalities.
Many women who become pregnant do not want to stay that way, Lasnover said. “They’re unmarried or had a baby in the last six months or had a contraceptive failure or are in serious financial straits,” she said. “And these women seem to be able to handle the decision of whether or not they wish to remain pregnant. In my view, that’s their choice--to be made by them, in consultation with a physician or other professional.”
‘Numbers Game’
Similarly, Dr. Bernard Towers, professor of psychiatry and biobehavioral sciences at UCLA, says that Roe vs. Wade has made a “numbers game” of abortion, subject to a steadily shifting standard of viability. But he, too, opposes allowing states to set their own standards.
“Before 1973, illegal abortions were done in incredible numbers, with a lot of money made out of it by people willing to take the risk,” Towers said. “Any attempt to set the clock back to that era would be a total disaster.”
Nonetheless, anti-abortion groups see the tide shifting in their favor, with advances in medical technology eventually combining with public opinion to force the court--at some point--to abandon Roe vs. Wade.
“We have babies of 24, 23, 22 weeks’ gestation who have survived,” said Dr. Jack Willkie, president of the National Right to Life Committee. “If you ask anyone--except somebody with an ax to grind--you’ll find they’ll say that if a baby has a potential for survival, it ought to be allowed to survive.”
