F.A.Q. on late-term abortion

F.A.Q. on late-term abortion February 11, 2016

Well, my post yesterday was a bit of a bust.  I was hoping to spur some discussion on the implications of supporting an R&I exception (either in law or in personal opinion of what’s right or wrong), but I really don’t have the right audience for that among regular readers and couldn’t manage (at least yesterday) to attract others, since the group I really wanted to reach were those who either support the exception or who, while genreally supportive of abortion rights, view prolifers who oppose R&I abortions as particularly heinous.

But in any case, some issues raised in the comments spurred me to dig up a bit of data on late-term abortions, which I’m sharing as an F.A.Q. without (much) commentary.

What has the Supreme Court said about late-term abortions?

There are three relevant decisions here.  The famous Roe v. Wade decision Wikipedia summarizes as follows:

The trimester framework addressed when a woman’s fundamental right to abortion would be absolute, and when the state’s interests would become compelling. In the first trimester, when it was believed that the procedure was safer than childbirth, the Court left the decision to abort completely to the woman and her physician. From approximately the end of the first trimester until fetal viability, the state’s interest in protecting the health of the mother would become “compelling.” At that time, the state could regulate the abortion procedure if the regulation “reasonably relate[d] to the “preservation and protection of maternal health.” At the point of viability, which the Court believed to be in the third trimester, the state’s interest in “potential life” would become compelling, and the state could regulate abortion to protect “potential life.” At that point, the state could even forbid abortion so long as it made an exception to preserve the life or health of the mother.

Doe v. Bolton, which was announced on the same day as Roe v. Wade, defined “health”:

the medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient. All these factors may relate to health.

Planned Parenthood v. Casey (1992) modified the prior framework somewhat, redrawing the line at which states may ban abortion with life & health exceptions at viability, rather than the third trimester.

What do state laws say, now?

According to Guttmacher, 25 states ban late abortions, except to preserve the “life or health” of the mother.  14 states permit late abortions only to preserve the mother’s “life or physical health.”  And 4 states limit late abortion only to cases of saving the woman’s life.  These restrictions apply varyingly at 20 weeks, 24 weeks, the third trimester, or “viability.”

Note that, in one case, in South Carolina, the “health” requirement requires that, rather than a rubber-stamping, the woman receive certification from an independent psychiatrist.

But what about the broad “Doe” health definition?

Interestingly, Guttmacher labels the 4 “life only” and the 14 “life or physical health” bans as “unconstitutional,” presumably for this very reason.

Why are they still on the books, then?

Dunno.  Possibly they simply aren’t enforced so that abortion-rights groups have never had a suitable test case, or perhaps any potential test case wouldn’t generate sufficient public sympathy.

Here’s the only example I was able to find of an attempt to prosecute a case of “criminal late term abortion,” from Michigan, where Guttmacher reports that post-viability abortions are banned except to save the life of the mother, from a 2001 ABC News report, “Doc Charged for Late-Term Abortion“:

Under a state law that predates the U.S. Supreme Court’s legalization of abortion, Michigan prosecutors have charged Dr. Jose Higuera with felonious abortion.

Higuera is the first doctor in Michigan, and may be the first in the country, to be criminally prosecuted for abortion since the U.S. Supreme Court’s landmark 1973 decision in Roe vs. Wade.

The 61-year-old gynecologist says the 1994 abortion was protected by doctor-patient privacy and that Michigan’s statute is unconstitutional. No trial date has been set. . . .

The state claims the fetus aborted by Higuera was 28 weeks.

Higuera’s crime, according to state prosecutor Mark Blumer, is that he did not have a clear medical or health reason to perform the late abortion.

“Had the mother’s health been jeopardized by the pregnancy, there would not be a criminal prosecution. There’s no doubt about that,” Blumer said.

“What we’ve got is the classic gray area. A woman went in to the doctor’s office and wanted an abortion for no good reason. And we have a doctor who was willing to give it. That’s why this case is so different.”

In the case, the woman who underwent the procedure testified she wanted to end her pregnancy because she was no longer married to the father and had other children.

The outcome of the case is reported elsewhere:  charges were dropped in exchange for a guilty plea to the charge of falsifying medical records (that is, because he had falsely documented that the abortion occured at 24 weeks).

How often do late abortions happen, anyway?

According to a “Fact Check,” referencing Guttmacher, 1.2% of abortions occur after 20 weeks.

Are these all for medical reasons?

No, not really.  The above Fact Check references another (paywalled) study by Guttmacher, which reports that

The study’s primary finding was that “[i]n many ways, women who had later abortions were similar to those who obtained first-trimester procedures.” It found that those who delayed abortions until later in their pregnancies were more likely to be younger women, those with limited financial resources and those who experienced logistical delays such as the need for extended travel to an abortion provider.

Though the study did not include medically necessary late-term abortions, it at least illustrates that there are women receiving abortions after 20 weeks who do so for non-medical reasons.

The author goes on to say that, digging further, there’s not much data out there on the reasons for late-term abortions, except that the “health exception” abortions tend to be performed at hospitals, and are thus not included in the data from abortion clinics.

What does Hillary Clinton have to say about late-term abortion?

Yeah, actually, that was the subject of the Fact Check, and the reason I landed on it.

On September 20, in an interview, she said, “I think that the kind of late-term abortions that take place are because of medical necessity. And, therefore, I would hate to see the government interfering with that decision.”

Subsequently, the fact-checker reports “A spokesman for Clinton’s campaign told us that she meant that many late-term abortions — not all or even most — are because of medical reasons.”

Is she on record as giving a straight answer to the question of what she believes about late-term abortions in which there was no medical basis?

Not that I could easily find.  I would guess that her statement here would likely be what I’ve read elsewhere from defenders:  “in order not to second-guess women in their Time of Need, we need to ensure there are no restrictions.”

What about Bernie Sanders?

His voting record garners him the same 100% NARAL approval as Clinton has, but I couldn’t find any specific statement from him.  Presumably he’s not been challenged on that question.

By the way, don’t the Catholic Church’s Ethical Directives put women at risk?

There’s no simple answer here.

The key is that induced abortions with the direct intention of killing the fetus are never acceptable, but, via the principle of Double Effect, a medical treatment that is intented to treat a pathology, which has the consequence of resulting in the death of the fetus, is acceptable.  The simplest case, which is more of a hypothetical because it’s so simplified, is a drug to treat a serious condition which has a side effect of causing a miscarriage.

As for what has actually happened inpractice, it is genuinely difficult to find information here that’s not stripped down to tell its partisan tale, either accusations of unjust interference in a Catholic hospital’s religious practice, or accusations of Catholic indifference to women’s lives.  The short answer is that, after viability, it is considered ethically appropriate to deliver the baby, however premature, and disputes are largerly centered around claims that the hospital should agree to abortions which intentionally kill the baby rather than to induction or c-sections.  The bigger issue is more around pre-viability medical issues such as miscarriage and premature rupture of membranes.

Here are a couple items:

The Ethical Directives themselves, from the Conference of Catholic Bishops.

An article by the Catholic Hospital Association Senior Ethicist, “Early Pregnancy Complications and the ERDs.”

A blog post providing some context and clarification, “In Defense of the Ethical and Religious Directives for Catholic Healthcare.”

A study in the American Journal of Public Health, “When There’s a Heartbeat: Miscarriage Management in Catholic-Owned Hospitals,” which describes the personal experiences of some doctors interviewed in the course of a larger study.

There appear to be two issues here:

First, the CHA article, in response to situations where it appears that a woman was treated unjustly due to the Directives, for isntance in the Journal article above, says this:

The situations that these and other authors describe are rarely the result of the ERDs themselves, though these tragic events have been attributed precisely to observance of the Directives.
In some instances, there may have been a lack of knowledge about what specific Directives actually say, or a misunderstanding or misapplication of thecertain Directives. But this is not the fault of those Directives that are relevant to early pregnancy complications. In other instances, the Directives simply made and make an easy target. The cause of these situations, assuming they occurred as described, may have had nothing to do with the Directives or with the hospital’s being Catholic.

But, second, the complaint lodged by those objecting to these principles is often that they caused unnecssary hardship and pain for the woman, for instance, in the case of an inevitable miscarriage, where the Catholic ethicist says,

When an inevitable miscarriage is at issue, expectant management and medical therapy would both be morally acceptable. If expectant management is not feasible due to excessive bleeding and/or pain or other factors such as the clinical ability of the facility, the use of a pharmaceutical agent to induce labor is not a direct attack on the fetus, but rather a measure to evacuate the uterus in order to resolve a pathological condition. This would be considered an indirect abortion from a Catholic perspective. Surgical management in this situation is more ambiguous. On the one hand, it would seem to be a direct attack on the fetus. On the other hand, surgical management is aimed at evacuating all the products of conception from the uterus of which the fetus is one. In this sense, could it be considered indirect?

The dispute seems to be whether surgical treatment is ethically acceptable, as well as the medical question of whether a medical labor induction is as effective a treatment, and, beyond this, whether it’s necessary to wait for a woman to begin to show signs of infection before initiating induction or surgery, or simply acting in the knowledge that infection is inevitable.

But here’s where I stop.  I simply don’t have the medical knowledge, nor the ability to acquire that knowledge, to determine, in any of these hard cases, what’s needed medically.

That’s all I have for you.  My next post will be about something completely different (retirement readiness, anyone?), but you are, of course, welcome to discuss with your fellow readers in the comments.


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