Viability-based rationale for banning abortions prior to ~22 weeks

[fnr]

The rationale used by state legislatures to ban abortion prior to 20 weeks has been largely based on what I consider to be a pseudo-scientific campaign to prove that unborn children at this age are able to perceive pain. I won’t go into the details of why I think it’s pseudo-science, but instead suggest an alternative rationale that is actually based on proving the legal personhood of the unborn between gestational ages of 22-26 weeks.

My alternative rationale is based on “viability” assessed by the survival of very preterm infants. A 2008 review of studies then available (spanning years of birth from 1991-2000) found that infants survived (in studies using a range of follow-up periods from hospital discharge to 2 years) at varying rates in different studies (mostly done in Europe). Here is the range of survival rates by gestational age from that paper:

Gestational age / Percent Surviving (minimal study - maximum study)
22 weeks / 0-12%
23 weeks / 0-41%
24 weeks / 3-70%
25 weeks / 29-85%
26 weeks / unavailable-88%

The basic argument I make is that if a significant fraction of very early preterm infants are able to survive (and hence qualify as legal persons), then unborn babies of the same gestational age ranges reported in this study also should qualify as legal persons. I don’t think anyone would argue that the parents of a very preterm baby that survives long enough to go home could legally choose to kill that baby (perhaps Peter Singer would… but he’s not a lawyer).

While an infant born extremely prematurely is generally not born by choice of its mother, I don’t think any legal scholar would advocate that the parents have the right to kill their baby once it’s breathing on its own. Similarly, for gestational ages comparable to the studies above (22-26 weeks), the mother may be legally enjoined from terminating her pregnancy. This involves a second argument: that remaining in utero is the best course of action for the “legal person” in her womb. While a very preterm baby can survive, on average, they have elevated rates of profound physical and mental disabilities, including vision and hearing impairment, the inability to walk without assistance, cerebral palsy, and reduced cognitive function as measured by standard diagnostic tests. Legally, the mother may be prevented from terminating the pregnancy after ages 22-26 weeks, even if only by inducing very early labor or removing the baby by Caesarean section, because the baby as a legal person would have a tort claim against the mother.

A counter-argument might be that babies born that early in pregnancy are so beset with disability that quality of life, rather than survival, should be the legal indicator that courts use to assess legal personhood. However, we as Catholics have a good reply: that the government may not legitimately say that one person is more worthy of legal protection than another strictly on the basis of their disability status.

Here’s a more recent study from Australia, following up very preterm infant mortality: ccshrif.org/download/Resource%20Corner%20and%20Tools/Talking%20Points/TP%20-%20References/Doyle_VICS2005at2years_2010%20copy%202.pdf

Thoughts?

 

[robwar]

the premise that it is ok to kill anyone because they are not viable is bogus to begin with. The baby is still a human whether the baby can or cannot survive outside the womb. This can be taken a step further and if someone can’t take care of themselves because of paralysis or some other incompetence, then that would be ok to kill them too? Viability or competence or even ability is no reason to kill someone. Trying to justify murder which is what abortion is based on some changing standard or idea of “viability” is grasping at straws.
The other side is if someone is on their death bed, well, they are going to die so lets just finish them off. The right to one’s life is never dependent on some sort of bogus standard of ability or worth or viability or whatever. I hope this is what you are looking for.

 

[fnr]

the premise that it is ok to kill anyone because they are not viable is bogus to begin with. The baby is still a human whether the baby can or cannot survive outside the womb. This can be taken a step further and if someone can’t take care of themselves because of paralysis or some other incompetence, then that would be ok to kill them too? Viability or competence or even ability is no reason to kill someone. Trying to justify murder which is what abortion is based on some changing standard or idea of “viability” is grasping at straws.

Of course it’s bogus. But within the legal framework of U.S. jurisprudence, the rationale for keeping abortion legal under Roe v. Wade (and implied in subsequent decisions) is that in the U.S., people are free to have different beliefs about the personhood of the unborn and that without a measurable means of determining personhood, the government cannot impose a single understanding of what it means to be a legal person. I believe that our souls are what define us as human, so believe that a person has irreducible humanity from conception to natural death. However, I don’t think a court would ever recognize this.

Pro-life legislators have attempted to justify bans on abortion after the 20th week of gestation by appealing to selective evidence that unborn babies show evidence of pain at this age. However, the evidence they cite is selective. If you search medical databases (e.g., pubmed.org), it is clear that from a scientific perspective, there is not agreement on the ability of unborn babies at 20 weeks to actually feel pain.

I’m not saying, “we have no king but Caesar,” but instead saying that there are likely to be more effective ways to reduce abortion than the strategies used by some pro-life organizations.

As such, I think that the epidemiology studies that quantify how many premature babies are born in different gestational weeks provides a better and verifiable way to identify which babies a court would be required to consider a legal person.