“MIXED EMOTIONS, CONFUSING OUTLOOK?” : Facts, Rulings, Opinions vis-a-vis Late-Term 2nd-Trimester D&E Abortions of Viable Infants.

Posted on November 27, 2009


The U.S. Supreme Court acknowledged in 1992 (nearly 20 years after Roe v. Wade & Doe v. Bolton) that “some of Roe’s factual assumptions have been overtaken by time … and advances in neonatal care have advanced viability” from what had earlier been “true in 1973”.   The Court posited, in arguing a separate point, that such advances (i.e.  “whether viability occurs at 28 weeks as was usual at the time of Roe, or at 23 or 24 weeks as it sometimes does today (1992)”) had “no bearing on Roe’s central holding that viability marks the point when the state’s interest in the fetus becomes compelling”.  The Court went on to speculate that attainment of viability by extremely preterm infants could improve further, adding “…at some moment even slightly earlier in pregnancy, as it may, if fetal respiratory capacity may be somehow enhanced in the future” (PPofPa v Casey 1992).

Now (2009) it is another 17 years beyond that 1992 Supreme Court opinion, and new data from major medical research studies (of preterm births by the US NICHD at 17 university hospitals across the United States during a period of 6 years, and by the UK Epicure 1 & 2 Study Teams of that entire nation over 10 years) have in fact proven enhanced viability results for extremely preterm infants.

The UK 2006 study of infants’ births at 22 through 25 weeks’ gestation (1,408 births in England) resulted in an overall survival rate of 52%.  The earliest births (152 infants at 22 weeks) had a 5% survival rate, while infants born at 24 and 25 weeks had survival rates of 42% and 65%.  The United States’ NICHD Study had significantly better results, since all births in the study were at university hospitals with trained neonatal units and ICU facilities and “fetal respiratory capacity enhancement” equipment (as the Supreme Court earlier wrote):  the survival rates for over 4,000 live births at NICUs with mechanical ventilation were 21% at 22 weeks gestation LMP, 37% at 23 weeks, 56% at 24 weeks and an astounding 76% at 25 weeks.

One wonders what the decisions might have been, if these or similar factual data had been germane, available and presented at the time of the 1967 UK Abortion Act forty-two years ago, or the 1973 Roe v Wade & Doe v. Bolton cases thirty-six years ago.   Time continues “to overtake earlier assumptions”.  Even so, certain parliamentarians in the UK recently sought to amend the 1967 Abortion Act to reduce the so-called date of effective infant viability (to, say, 20 weeks gestation) based on the Epicure research study results, and were denied – the Minister of Health apparently rejecting Epicure study data during testimony and substituting her own far lower (worse) survivability percentage numbers instead.

A current dilemma for proponents of amending the “recognized time of infant viability” in the U.S. appears to be that the Supreme Court, in its earlier rulings, deemed that irrespective of provable or probable date (weeks’ gestation) for potential viability of infants in the womb – and even acknowledging “the attainment of viability may continue to serve as the critical fact” – the final decision as to actual probable viability for each and every individual “fetus” is to be left up to the discretion of the individual abortion physician attending the child and her mother.

As the Guttmacher Institute reports, perhaps with an element of satisfaction, “thus…the determination of viability…must be left to the professional judgement of the individual physician:  Provisions that (seek to) establish a specific age – usually 20 or 24 weeks – after which abortion is prohibited and, presumably, the fetus is considered de facto viable, are unconstitutional and unenforceable.”

The other key “discretion” left to the individual attending abortion physician is the determination of potential impact on a woman’s “health” if a late-term abortion of an infant at 21 or 22 weeks to 26 or 27 weeks’ gestation is not permitted, including “for mental health reasons, whether or not the patient had a previous history of mental defects”.  In upholding the Ban on D&X Partial Birth Abortion, however, in 2007 the Supreme Court did not reinsert the word “Health” or seek to include a “Health Exception” clause in the Federal Partial Birth Abortion Ban Act of 2003.

Returning, therefore, to examine the differences, if any, between D&X Partial Birth Late-Term Abortion Method of potentially viable infants (in 21-26-week gestation ages) versus D&E “Dismemberment-in-uterus” Late-Term Abortion Method of potentially (or now proven-to-be-better-than-50%) survivable infants in the 22 to 26 weeks’ age brackets, one must not only consider the medical procedure, but also the condition, feelings, results pertaining to the infant as well as the mother. First, however, one must ponder this question of “the abortion physician’s individual discretion and assumptions” in regard to (a) his or her assessment of the viability of an individual “fetus”, and/or (b) his or her assessment as to whether or not her or his “patient” may have a “psychological health” problem downstream if the late-term D&E abortion of the potentially-viable child is not performed.   These are crucial life and death matters:  Not for the mother nor the abortion physician, but for the viable child.

At this point, consider again the words of an internationally known editor – and those of his wife – in regard to the Late-Term D&E (or D&X) abortion experience they elected to undergo in 2000 with their 24-week-gestation child.  Bill Keller is the Executive Editor of the New York Times.  In 2002, Bill Keller was the New York Times senior writer and op-ed columnist.  On June 29, 2002 (at a time of vigorous debate in Washington over Partial Birth Abortion) his long, poignant op-ed article entitled “Charlie’s Ghost” was published.  He and his wife, Emma, had named the 24-week infant in her womb, whom they were about to abort, Charlie.  The subtitle of the article was “Perfect babies and imperfect choices.”  The Kellers discovered at this late stage from “the experts, that the chances were high – one (expert) was willing to say over 90% – that the baby would be born dead or in a vegetative state and carrying the child to term could pose some danger to Emma’s health.”  They decided to end it:  “The last thing Emma was aware of before surrendering to the anesthetic was Charlie kicking madly.”  Emma later said, Keller wrote, “that (if we had just let nature take its course)…we would have lost that baby, but we would not have killed that baby.”

In this brutally honest piece, the agony of late-term abortion of a potentially viable infant, to his parents, is clear.  They call the child a baby, not a “fetus”.  They name the baby.  They realize they are killing the baby.  There is no excessiveness in this piece.  In the Kellers’ situation, the 24-week-gestation child is apparently severely or mortally impaired – worse than “something known, like Down syndrome” -although we are not told, after the abortion, what the terminal malady was.  We are not told if the procedure was D&X (permissible in 2000, where the child would be aborted whole and postmortem examination would be possible), or if it was D&E (where the child would be shredded in the womb and evacuated in pieces by suction and curettage).

The Kellers’ case – their baby Charlie – was an exceptional situation.  In the overwhelming majority (probably over 95%) of the 20,000 other cases of potentially viable babies in the Late-Second-Trimester (21-27 weeks) age group aborted that year – and every year since, and for over two decades before – predominantly by D&E Dismemberment, there were no serious or mortal impairment of those infants in the womb.  Furthermore, as the D&X pioneer Dr. Haskell has testified, there would have been virtually no risk to the “health” of the mothers of those late-term-aborted infants.

In the roughly thirty six years that Late-Term 2nd-Trimester (21-26 weeks gestation) D&E and D&X abortions have been sought by mothers and performed by abortion physicians, at the rate of circa 20,000 per year, some 700,000 (well over OVER HALF A MILLION) potentially viable/survivable babies have been killed in the United States.  In all cases, the individual physicians would have had to diagnose and document that every infant, at that late stage, was not viable – despite the overwhelming evidence from serious medical studies to the contrary:  Or, the individual physicians would have had to predict and document that by not performing the sought-for abortions, the babies’ mothers would suffer emotional or mental “health” problems downstream.  The law evidently allows potential anxiety on the part of the woman (if the individual physician so affirms and documents) to trump the actual life of a survivable child.

If Emma Keller’s plaintive reminiscence – “…but we would not have killed that baby” – could be known beforehand by the 20,000 mothers who will seek late-second-trimester abortions of their potentially viable babies each year, the awful killing numbers might be dramatically reduced.  At this time, it is still up to the individual physicians’ discretion.  In the distant future, it may be mandated by law, by banning such late-term D&E and all other late-term methods (except when the LIFE of the mother is in grave danger) just as D&X Partial Birth Abortion was eventually banned and upheld after an agonizing 15-year national debate, in which an appalled American public overwhelmingly rejected that method of D&X abortion (while not realizing there was an equally primitive method called D&E that was not being addressed, nor debated, and was not even considered to be banned).

One hurtful note in Bill Keller’s 2002 article was the seemingly-obligatory New York Times’ dig at the Catholic church, in an anti-Catholic throwaway line or two.  (Blame the Church, in part?)  Establishing their bona-fides as once-Catholic, or still Catholic (“my wife clings more firmly to her faith than I”), Bill Keller says Emma left voicemails with the hospital’s Catholic chaplain’s number, but “he never called back”.  One wonders why Emma, or Bill, could not instead have simply visited their parish priest at the nearby rectory?  Or any priest at one of the dozens of Catholic churches in New York City.  But Emma found consolation from a nun who (“with a wisdom that would disqualify her from Vatican office”) advised her to do “what God would want; not what the Church would want; as they are not always necessarily the same”.  God Bless the nun.

Bill Keller speculates, in his 2002 editorial opinion piece article, as to what they might have decided (about aborting Charlie) if the choice had been less stark, such as his merely having Down syndrome; “would we have had the strength to ride it out?”  On this theme, in late November 2009 the general counsel for News Corporation Lon Jacobs wrote an op-ed piece in the Wall Street Journal, eloquently and joyously defending the decisions of parents (including themselves) to have – not abort – children with Down syndrome.  Unfortunately, Jacobs (who is pro-choice) says, “today, nine out of 10 American women who are told they have a child with Down syndrome choose to abort”.  Jacobs perceived “a widely held presumption that society would be better off if children (like his 13-year-old daughter) were eliminated before they were born:  In too many quarters,” he writes, “we have moved from a society that protects the right to abortion to one that promotes it:  This is especially true with regard to those with disabilities.”

For those who love the youngsters and adults who participate in the Special Olympics and all other similar children with intellectual difficulties, this is potentially devastating news.  What sort of a nation or civilization would this become, with a population of – in some people’s minds – only perfect or near-perfect human specimens (assuming such “perfection” could be adequately defined)?

Mr. Keller puts forward the suggestion that “in a world of market-driven health care“, he could imagine insurers refusing to cover a childhood disability that could have been detected in advance (of birth) “and prevented by aborting.”  He asks, “wouldn’t that be an infringement of choice as surely as outlawing abortion?”  One might equally ask today – ‘in a world of government-run health care, wouldn’t cost consciousness and social engineering dictate that any child having any disability detected in advance (of birth) be terminated by aborting?’

Considering trends in recent decades of ‘beginning-and-end-of-life-healthcare’ in some European nations, in China and elsewhere, one would lean toward having greater trust and confidence in market-driven competitive private health care providers and insurers, than in government controlled entities.

Returning to the question of ‘ultimate discretion’ given to the individual abortionist physician, regarding the decision as to viability of an infant in the womb, and also to the likelihood – or not – of a woman’s emotional condition some months after an abortion, enough time may have passed to reopen the debate.  Taking into account a virtual library of new study reports, factual data and conclusions (for example, recent neonatal studies of extremely preterm infants in various theaters of the world including Japan, UK, USA), how can an individual abortion doctor not take the proven statistical results into account?  He or she must be aware of the new odds.  Abortionists and abortion clinics’ managements must know that at 22 weeks LMP (assuming a hospital neonatal ICU is available within reasonable travel distance) an infant in the womb has a 1 in 5 chance of survivability.  It is a slim chance, but an attainable chance.  At 23 weeks gestation, the odds soar to better than 1 in 3.  At 24 weeks LMP, the odds are now better than 50-50 (i.e. 56%).  At 25 weeks, three out of every four babies survive (with or without mechanical ventilation).  And at 26 weeks, survivability is virtually assured.

Since some 20,000 infants in the 21 to 27 weeks’ age-bracket are aborted each year (documented in earlier research posts/articles on this blog site); and since overall average survivability rates are 53% in the UK and higher in the US for extremely preterm infants in the 21 to 26 weeks’ gestation segments; it might, therefore, seem logical to assume that an equal number of 21 to 26 weeks’ pregnant women – that is, 20,000 additional women – who were seeking abortions each year, were turned down on the grounds that their babies were deemed by the abortion physicians to be viable.  That hardly happened!

But since there is no factual data, and no investigative research has been done on that question, any answer is speculative.  The Guttmacher Institute conducts annual surveys on abortion questions directly from physicians, clinics and hospitals.  The Guttmacher, therefore, could – if it so chose – get answers to those specific questions (e.g. “how many 21-to-27-week-pregnant women have you advised that you cannot perform an abortion, due to her infant being in all probability, or even possibly, viable?”).  This comprises data that the CDC cannot collect, since the CDC Annual Abortion Survey information comes from individual states’ Departments of Health forms (submitted on a voluntary basis) and such information is not asked for by the states.

Yet, even without the benefit of guidance from statistical research studies (on this question), one can visualize certain scenarios as being far more normal, than rare or unusual.  Example:  An abortion physician, examining a woman who is 24 weeks’ pregnant with an apparently normal infant in her womb, is asked to abort her child:  He is aware of the survivability odds, and has reviewed many of the recent studies conducted in the US and abroad:  In spite of those odds, he “judges”, Solomon-like, that the child is not viable – that it could not survive outside the womb – and is therefore eligible to be killed (by D&E, shredded, dismembered, collapsed and sucked out).   That is what happens something short of  20,000 times a year.  Year in, year out.

The American public, abortionist physicians, the medical profession and AMA, governing legislators and our courts have to acknowledge that “past assumptions and opinions are (continually) being overtaken by time”.

It IS time to move on and give the benefit of the doubt to living and potentially-survivable human beings, small infants in the womb, the most defenseless of God’s creatures.  Babies of 21 weeks’ gestation and beyond should not be aborted (unless the mother’s life is in danger), especially by D&E Dismemberment procedure.  Late-Term 2nd-trimester Abortion by D&E, or by any method should be banned, just as D&X Partial Birth Abortion was banned.  The time is now for bold legislators to put forward a Bill before Congress proposing such a Ban.

Posted in: POLITICS