Preventing Abortion: Will 20 Weeks Do It?
Preventing Abortion: Will 20 Weeks Do It?
By Paul D. Simmons
The House of Representatives just passed H.R. 36, oddly called “The Pain-Capable Unborn Child Protection Act,” which proposes to extend legal protection from abortion to the unborn beginning at 20 weeks of the woman’s pregnancy. The bill was sponsored by Rep. Trent Franks (R-AZ) and Rep. Marsha Blackburn (R-TN), and was strongly supported among Republicans in the House. The sponsors claim that research says the fetus at this stage can feel pain which is why doctors use anesthesia for surgery with the unborn.
The search for the time during gestation at which the fetus should be regarded as a person and thus have the full protection of the law has been an on-going debate since the issue was raised in Roe v. Wade. The question is the stage at which there is sufficient neurological and physiological development that the fetus is viable—-that is, able to live outside the womb without extensive technological support. Note that the 21 week rule is touted as fulfilling the viability criterion. Their statement gives two reasons: “the unborn child can live outside the womb” and it feels pain. Whether this approach will stand the scrutiny of the Court remains to be seen. Roe v. Wade (1973) reckoned the fetus acquires the ability to live outside the womb at about 28 weeks gestation. The perception promoted by the anti-abortion movement iis that there is a widespread incidence of premature births that could be assisted to survive by medical technology has promoted the 20 week rule as the solution. Whether a 20 week fetus could live without extensive Neonatal Intensive Care it (NICU) support, however, is extremely problematic. Commentators are already suggesting that the 20 week standard will likely not pass judicial scrutiny.
Some want no law permitting abortion at any stage, of course. Even a fertilized ovum should be protected according to traditional Roman Catholic teachings. Pope Pius IX declared emphatically that one is a person “from the moment of conception” adding that any direct killing of the fetus at any stage was a mortal sin.” While Catholics have historically engaged in a wide variety of responses to problem pregnancy, the teaching of the Papacy has been consistent since Gregor Mendel’s findings in genetics.
Nuns and certain theologians have been especially vocal in opposing this extremely narrow approach and the Catholic journal Conscience openly advocates choice.
The effort to ban abortion at 20 weeks is consistent with the plans projected by anti-abortion activists who exploit the latitude allowed by the Supreme Court in Webster1 that permitted states to implement hindrances and limitations to a woman’s choice.2 Among those hindrances have been such things as requiring abortion procedures in approved facilities and such limits as 24 hour (or longer) waiting periods, requiring ultrasound pictures to be presented to the woman and allowing ever-decreasing distances at which protestors must remain as they cajole, shove and shout their message at women entering abortion clinics.
Many of those adamantly opposed to abortion are willing to go to any length to stop an abortion, as evidenced by the murder of Dr. Tiller and other abortion doctors and their assistants.
The Supreme Court has also shown deference toward a more restrictive interpretation of the Constitution in recent years. Roe v. Wade showed considerable regard for the woman’s suffering and decisional prerogatives during pregnancy making even lateterm abortions possible where there was evidence of “undue burden.” That rule was altered in the decision regarding Partial-Birth Abortion,4 in which Justice Kennedy joined conservatives to form a majority that spoke of “the living, human organism” that was at stake in the debate and whose dignity and rights had to be preserved. That sounds like the typical thought found in Right-to-Life literature. Women’s rights groups fear that if the current makeup of the Supreme Court holds during the next two decades, women will be right back in the era when reproductive rights were severely restricted. The message women will get is that they are loved and appreciated but expected to be docile recipients of whatever nature may throw at them and to accept a second-class citizenship that relegates them to serve the dictates of a male-dominated legal system.
The 20 week approach is based on the opinion that the fetus feels pain which should exclude the procedure on humanitarian grounds. This argument has some semblance to reasonableness. But the “pain” criterion is terribly problematic since the nerve system of the fetal body is hardly developed and the sensory portions of the brain are not yet in place. By “pain,” the abortion objectors mean the fact that a fetus will withdraw a limb or show sensitivity to touch with an object wielded by the physician. But sensitivity to touch is hardly “knowing” that one has been touched. So the criterion is less than convincing to a wide range of people, especially embryologists and neonatologists.
Many of those adamantly opposed to abortion are willing to go to any length to stop an abortion, as evidenced by the murder of Dr. Tiller and other abortion doctors and their assistants.
Reasons such as the set-back for women’s rights and lack of scientific support for the viability theory figure in the surveys that show a lack of support among Americans for the 20-week proposal itself. Sixty-one percent of voters say abortion should be legal throughout the pregnancy.
Political fervor among avid antiabortion foes is not dissuaded by negative public opinion polls, of course. The public recognizes that difficulties may and do often present themselves to the pregnant women after 20 weeks. A considerable number of voters regard the time and energy spent on yet another effort to ban abortion would better be spent on more important and pressing issues. The Right-to-Life movement has made its point but now is increasingly regarded as anti-woman, anti-science and antidemocratic.
It may happen that a reasonable bill will come from the acrimony and incendiary atmosphere in Congress, or, that no bill at all will be forthcoming, which seems more likely. The Senate’s quick action to send the bill to Committee is an indication of the national sentiment.
A strong majority (78%) of Democrats oppose the 20 week rule, as do 62% of Republicans and 71% of Independents. The overwhelming majority vote in the House indicates the conservative resurgence and the influence of anti-abortion extremists among Republicans. Should the Bill come to the floor, Sen. McConnell (R-KY) will have the power to manipulate whether and how the Senate gets to vote. He is strongly anti-choice and presumably supports the 20 week rule. The Senate debate will likely be heated and the final margin of a vote much closer than in the House. Americans can only hope that cooler heads will prevail so that central Constitutional values will be preserved and women’s prerogatives of choice during pregnancy will be preserved.
Women, not fetuses, are the “persons” who have Constitutional protections and prerogatives of choice regarding their preferences and decisions related to “life, liberty and happiness.” Women’s decisions are vital to their personal well-being and extend to matters of family planning and dealing with tragic events and pregnancy termination under adverse circumstances.
Anti-abortion rhetoric is also in need of a facts-check. The first dubious claim, if not outright misrepresentation, relates to the claim that a 20 week fetus is “viable,” that is, capable of living outside the womb. Their approach also implies that no technology is necessary to assure the baby’s living and flourishing.
The concern about “feeling pain” implies sufficient sensory and intellectual development for the fetus to know he or she is being mutilated or dismembered. This claim is not supported by medical science. Fetal development at 20 weeks is insufficient to assure a brain capable of thought processes. A study published in the New England Journal of Medicine4 of 1306 babies born at 20-25 weeks gestation indicated that 8% were not even counted as a statutory live birth; 39% had some heartbeat but no other signs of life. For those born 20-22 weeks the duration of survival was less than 60 minutes. Only after 23 weeks gestation did 4.5% live to 1 year and that was for those weighing 500 gms or more. Among those who survived with ventilatory support, most were afflicted with lifelong physical and neurological liabilities, some of which will prove lethal. The authors concluded by saying that aggressive resuscitation of fetuses should be attempted at 25 weeks but not those at 22 weeks. In other words, more harm than good comes from rescue measures for most infants at 20-24 weeks gestation.
The study makes two points relative to this discussion. First, it raises a serious question about the claim that drawing a line on abortion at 20 weeks will prevent pain and suffering on the part of the woman and fetus. That claim is misleading at best and blatantly untrue at worst. Second, it lays bare the fact that the 20 week rhetoric is a thinly-veiled cover for an anti-abortion crusade that belongs to the same category as efforts to require extended waiting periods, counseling with ultrasound pictures of the fetus in utero, and efforts to make illegal the medications used in abortion. Instead of reducing the amount of suffering and pain for women and their families, the suffering and humiliation for women are greatly increased.
The criminalization of actions by women is another major consequence of the anti-abortion crusade. Indiana has sentenced Purvi Patel to 21 years in prison for what she maintains was a miscarriage. She came to an Emergency Room covered with blood and needing medical assistance, which she received, along with being charged with feticide. Such is the loveless logic associated with legislation designed to “protect fetuses” but not women.
Feticide is also on the books in Nicaragua, where women are subjected to intense scrutiny, pelvic exams, interviews with family, etc. Once the pregnancy is registered at a clinic for prenatal care, the woman is followed to determine whether she delivers a live baby on schedule. If she does not the assumption is that she has had an abortion. The consequences include imprisonment and fines both for the woman and any physician or other person thought to have assisted her.
Wisconsin legislators proposed a $10,000 or 42-month prison sentence for any physician who violated the provisions of a 10-week ban.
There is a direct relation between poverty and a high abortion rate.
Common sense and the professional ethics of the physician were disregarded in the fervent effort to prevent abortions. Repressive laws follow bad theology and misguided ethics.
There are two very specific and positive ways to respond to the crisis confronting the woman. The first is to help relieve the problem of poverty or extreme financial distress. There is a direct relation between poverty and a high abortion rate. The second is to provide reliable sexual information including all-option counseling and making contraceptives available. These steps both recognize and support the dignity of the woman and contribute directly to her personal needs.
The proper focus in the debate about abortion is the woman, not the fetus. Anti-abortion leaders have, ever since Roe v. Wade, attempted to shift the emphasis to so-called fetal rights. The “innocence” of the fetus carries additional weight to that of the woman in the mind of the public. The “innocence” of the fetus is contrasted to the “guilt” of the woman. The woman’s “guilt” is traced in traditional religious thought to the origins of humanity and the Fall. “She” is portrayed as “the first to fall” and thus the one primarily responsible for the sinfulness of humanity. It becomes easy to shift the emphasis when dealing with abortion from the circumstances driving the crisis to the larger question of primary guilt. By that measure, the woman loses every time. But she is the one uniquely at issue in the abortion debate. In the biblical story, she is created in God’s image, and thus is endowed, like God, with capacities for reflective choice and moral decision-making. She is a human being and carries the burden and responsibility of making decisions that reflect her unique place in creation.
The fetus does not have those abilities and likely attains them in rudimentary form only with the formation of the neo-cortex or no earlier than about the 26th week of gestation. The abortion question focuses the personhood of the woman who, in turn, considers the potential personhood of the fetus in terms of the multiple dimensions of her own history and the future. Hers is a god-like decision. Like the Creator, she reflects upon what is good for the creation of which she is agent and now bears the ability to bring another into existence. She is a steward, not the Creator, of powers that now belong to her. As steward, she is to reflect upon those powers and use them for good and not ill—-for herself and the creation of which she is a part and with which she interacts as
Agent. Her own well-being, the health and well-being of the fetus and that of the future become primary factors in her decision.
The personhood of the fetus is not actual but attributed or anticipatory. Objectively, enough has been said to underscore the fact that a 21-week fetus is not sufficiently developed to consider it an actual person. But potentiality has its place in the woman’s response to this moment. She (along with family or husband) may regard the fetus as a person and provide it with all the respect, love and protection a person should be given. It is not yet a person, but it may be named and accepted as a person, providing the emotional, spiritual and nurturing environment necessary to become a person.
This important human phenomenon of attributing personhood to the fetus in the womb is either ignored or discounted by those who oppose the legal availability of abortion. The search for objective criteria for personhood seems cold and calculating to those who have only experienced the joyous, celebrative side of pregnancy. It is inconceivable to them that any woman would choose to terminate a pregnancy. Little wonder they react
with revulsion, fear and anger at people they believe to be unappreciative of gestating life. The mistake is the confusion between actual and anticipatory personhood. To relate to a fetus as “person” is not the same as discovering the personhood of the fetus. The fetus is not a person by any objective criteria, but it may be ascribed personhood on highly subjective grounds.
Not every pregnancy results in a positive personal relationship between woman and fetus. Pregnancy is not always a happy occasion—-it may be a destructive experience fraught with horror and threat to the woman. Bonding simply does not take place. The fetus may be perceived as a threat to the woman’s health or a reminder of sexual abuse or the dangers attending the processes of conception and gestation. An ectopic pregnancy poses a threat to the woman’s life as do such problems as placental previa or complications from the woman’s earlier heart problems. The human experience of pregnancy is tremendously varied. Relating just how God’s providence is being expressed under intensely threatening circumstances requires keen insight and empathy. God’s activity is not always and under all circumstances the same thing. Pregnancy under coercive or threatening circumstances will likely not be considered an experience to celebrate. And it will likely be difficult to think of it positively as a matter of divine goodness. Grace is given the woman to deal boldly with the threat to her life and well-being, CONCLUSIONS
How then should Americans provide protections for the woman to act out her stewardship of procreative powers? Those who turn to Scripture (Hebrew, Christian and Moslem) for guidance regarding abortion will confront instead a profound silence regarding elective abortion. What guidance is given is drawn from inferences woven into the stories of women confronting pregnancy and childbirth.
Harsh penalties can be found for women who aborted in the surrounding mid-eastern cultures.
The “innocence” of the fetus is contrasted to the “guilt” of the woman.
But neither Hebrew nor Christian Scriptures contain regulations of the practice. Exodus 21 contains a story of a miscarriage as a result of a brawl, but the resolution is ambiguous, thus allowing room for discussion. Nowhere in the Bible is there a specific prohibition of abortion. This silence about what was undoubtedly part of life in the community of the people of God is truly amazing. Either (1) no Hebrew or Christian woman ever faced a problem pregnancy and resorted to abortion, or (2) abortion was not an issue for civil regulation, but was managed as a private, family and personal matter by women faithful to God’s leadership and supported by the community of faith.
Only the second approach takes account of the multiple dimensions of the issue and thus seems the most plausible explanation of the biblical silence. In its silence, the Bible affirms the privacy in which such decisions should be made, and the woman is acknowledged as an equal partner/ participant in the Stewardship of faith. Decisions about childbirth and or termination belong uniquely to her since pregnancy is highly personal. She must reflect upon her circumstances, examine her motives and family commitments, and anticipate the future.
This approach also seems implicit in the New Testament. Jesus never mentioned the subject, and the Apostle Paul was silent about it. For all his practical guidance about moral living and the Christian community, not once did he mention abortion. He seems to have placed it under the umbrella of faith, grace and freedom (Eph. 2, Gal.5). In this matter, as with all challenges to faith, the believer is to “work out your own salvation in fear and trembling. . . “ (Phil. 2:12). Paul did not deal in weeks of gestation or conditions of lethal deformity or disease.
Those difficulties would be confronted by the woman and her family as they occurred in nature or history.
But she would be protected from the bigotry and humiliation of public scorn, or the depersonalization at the heart of being reduced to a “thing” unworthy of love by mobs motivated more by hate than compassion.” The woman was a person imago dei in need of the sustaining, forgiving and accepting love of the faith community. Christians should know better than most that those facing difficult choices full of moral ambiguity under tragic and perplexing circumstances need the supportive love of community, not the scornful condemnation of people untouched by grief and incapable of love.
We cannot improve on the story of that community of care that emerged among the followers of Christ. They were not armed with laws to reform the world but with a message of love that could heal its hurts and bind up its wounds.
In my judgment, the 20-week rule is a sideshow attempting to mislead and misinform the public. Those who promote the slogan would have us settle for inadequate and unhelpful legal regulations in the face of womens’ difficult task of discerning God’s will under trying circumstances. She does not need jail or loveless harangues. She has suffered enough from people who offer cheap answers for life-threatening problems. What she needs now is merciful but skilled medical treatment and a community of care that offers sustenance and a quiet place for prayer and meditation. She is going through an experience from which we might all learn lessons of grace and truth, all of which we miss if we support or settle for the 21-week rule.
1 Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989).
2 See Dennis J. Horan, et. al. Abortion and the Constitution: Reversing Roe v. Wade Through the Courts Washington, DC: Georgetown University Press, 1987.
3 Gonzales v. Carhart, 550 US 124 (2007).
4 “The Limit of Viability: Neonatal outcomes of Infants born at 22-25 weeks’ Gestation.” NEJM on-line June 4, 2015.
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