Much of the pro-life community is excited over the passage last week of a bill in the Texas House of Representatives restricting abortions after twenty weeks. On the surface, this sounds like a bill that everyone who is pro-life should support. After all, the legislation is based on findings that unborn babies experience pain beginning at the twentieth week of development. Indeed, some assert that they experience pain before then, but that beginning in the twentieth week they can experience excruciating pain. Why would anyone who considers himself pro-life be deeply disappointed in legislation that would restrict abortions that inflict excruciating pain? Why, indeed?
Yet I am deeply disappointed in this bill. I am not disappointed because of what it restricts, but because of what it explicitly and positively permits.
Specifically, the bill contains findings that “substantial medical evidence recognizes that an unborn child is capable of experiencing pain by not later than twenty weeks after fertilization” and that, as a result, “the state has a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that these children are capable of feeling pain.” In addition, the legislative findings state:
Restricting elective abortions at or later than 20 weeks post-fertilization, as provided by this Act, does not impose an undue burden or a substantial obstacle on a woman’s ability to have an abortion because: (A) the woman has adequate time to decide whether to have an abortion in the first 20 weeks after fertilization; and (B) this Act does not apply to abortions that are necessary to avert the death or substantial and irreversible physical impairment of a major bodily function of the pregnant woman or abortions that are performed on unborn children with severe fetal abnormalities.
The bill then prohibits all abortions after twenty weeks from fertilization except for the instances just listed. In the definition section, the bill refers to an existing statutory definition of “severe fetal abnormality,” which provides that “a ‘severe fetal abnormality’ means a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of life saving medical treatment, is incompatible with life outside the womb.”
So what do I find problematic with this?
In the legislation, the state finds that an unborn child can feel pain not later than at twenty weeks after fertilization and that this gives the state a compelling interest in protecting the child. Yet the state refuses to protect such a child when he has a “severe fetal abnormality.” In other words, if the poor little baby is going to die from his disabilities after birth anyway, the state of Texas will explicitly allow his being killed in the womb despite the pain it will cause him. Permitting the killing of someone who will die soon anyway is the position of those who favor euthanasia. In fact, it is also the argument made by those who favor infanticide of babies born with serious disabilities that will likely result in their death shortly after birth. The legislation permits euthanasia by abortion.
As is often pointed out, the law acts as a teacher. The lesson here is that unborn babies who have “severe fetal abnormalities” are not worthy of the same protections of other unborn children. I’m sure Princeton professor Peter Singer, who advocates permitting infanticide of disabled newborn infants, can make use of this lesson for his argument that the same applies after birth. And what would be the answer when he does? That killing before birth is different from killing after birth? Isn’t that the argument of those who call themselves pro-choice?
When I’ve raised this argument, the response is invariably, “Don’t you care about the babies this bill will save?” Of course I want to save babies from abortion. However, it is unlikely that this bill will save very many babies, if any. In the United States, 98.5 percent of all abortions occur before the twentieth week. That means that this bill only reaches 1.5 percent of all abortions that occur under existing law. In Texas, the percentage is even smaller. Of 85,000 abortions performed each year, only about one thousand occur after the twentieth week, or about 1.2 percent. Further, this bill has three exceptions to the twenty-week restriction. The first is the one which is the cause of my objection to the legislation. The second is to protect the mother’s life. The third is to protect the mother from “substantial and irreversible physical impairment of a major bodily function.”
Without question, many abortions that occur after the twentieth week involve one of those three exceptions. Probably almost all late-term abortions would fall under one of these three exceptions. Most women who elect to have an abortion for other reasons are not going to wait until halfway through their pregnancy. Indeed, more than 94 percent of all abortions occur before the sixteenth week. And any woman who might be torn about whether to have an abortion this late in her pregnancy has the explicit legislative affirmation from the state of Texas that she may freely have the abortion so long as she doesn’t wait past the twentieth week. In other words, don’t delay trying to make up your mind or it will be too late.
But surely this bill may save some lives. Whose lives are those likely to be? Arguably, it will be babies who are diagnosed with fetal abnormalities that are not likely to result in their deaths shortly after birth. So how many babies might be diagnosed with such abnormalities after the twentieth week? Likely very few. The prenatal tests normally performed to detect such abnormalities are usually done between the fifteenth and twentieth week. That is, these tests are performed within the time frame in which the Texas legislation, by its own terms, “does not impose an undue burden or a substantial obstacle on a woman’s ability to have an abortion.” And while some of these tests now occur after the twentieth week, the bill just enacted creates an incentive to schedule such testing before the twentieth week if the mother wants to have the option of a legal abortion under the new law.
Yet it is possible that such non-fatal abnormalities might be detected after the twentieth week. Indeed, it is likely that such will continue to be the case in rare circumstances. This is where I must get personal. My third of four children and youngest daughter was born with an extremely rare chromosomal abnormality, Rubinstein-Taybi Syndrome (RTS), an abnormality that occurs in about one out of 125,000 births. RTS is not detectible by any existing prenatal testing. Make no mistake about it, I love my daughter and I would do anything morally permissible to protect the life of any child, born or unborn, who has a disability. Those babies left unprotected under Texas’ new law are just as much made in the image of God as my disabled daughter and her siblings.
And sometimes doctors are wrong. Just last week, there was a story from Britain about a normal, healthy girl who is turning ten whose mother was told would have only a 1 percent chance of survival and was encouraged to get an abortion. Bella Santorum has Trisomy 18, a condition that results in the death of 90 percent of those who have the disorder within a year of birth, and yet Bella is now four. The Texas law will permit the killing of children who doctors may erroneously believe cannot survive long after birth.
Am I saying that it would be better to do nothing? Absolutely not. It would be better to enact legislation that protects all babies after the twentieth week (or even earlier, as have Arkansas and North Dakota), when they can feel pain, and not explicitly refuse to protect a subset of these babies. The legislation enacted in Texas is not the only option. Several states already ban abortion after the twentieth week. Georgia and Louisiana have exceptions similar to the ones enacted in Texas. None of the others make an exception for congenital anomalies. States with a twenty-week, or earlier, ban on abortion which protect all babies, including those with severe fetal abnormalities, include Alabama, Idaho, Kansas, Nebraska, North Dakota, and Oklahoma. The United States House of Representatives passed similar legislation last month. Those are better bills. It is a tragedy that the Texas legislature did not follow those examples.
North Dakota provides even more protection to unborn babies who are diagnosed with “a genetic or a potential for a genetic abnormality.” This spring, that state’s legislature enacted, and the governor signed into law, a bill that expressly forbids abortions for purposes of sex selection or because “the unborn child has been diagnosed with either a genetic abnormality or a potential for a genetic abnormality.” That law, the first of its kind in the nation, is currently being challenged in federal court. It may be struck down, in whole or in part. But for now, those restrictions are in force.
So, while I recognize the hard work and good intentions of those who have worked for the enactment of the Texas bill, I must voice my strong objection to this exception. I urge those who have supported this bill, many without even being aware of this explicit exception, to now turn their attention to repealing the provision making this exception and to enacting protections such as those enacted in North Dakota earlier this year.
Gregory K. Laughlin is Associate Professor of Law and Law Library Director at the Cumberland School of Law at Samford University in Birmingham, AL.
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