Science Has Advanced Since Roe v. Wade But Abortion Laws Haven’t

Doctor holding a baby picture of the fetus.

In 1973, the U.S. Supreme Court ruled in Roe vs. Wade that abortion was a constitutional right and limited the power of governments to restrict abortion.

The key components of the decision included a ruling that governments couldn’t regulate abortion to protect the life of the fetus until it reached viability — the ability of a fetus to survive outside the uterus after birth — and a conclusion that “viability is usually placed at about seven months (28 weeks).”

In the 43 years since the Roe vs. Wade decision, medical technology in obstetrics, the field of medicine concerned with childbirth, has advanced so dramatically that fetuses can now survive outside the womb 22 weeks after a pregnancy begins. In addition, the medical community now knows that fetuses react to pain within 18 weeks of conception, according to a 2008 article in The New York Times Magazine entitled “The First Ache.”

Unfortunately, though, laws in many states don’t reflect the advances in obstetrics — although the U.S. Supreme Court itself concluded in its 1992 Planned Parenthood vs. Casey decision upholding the principle that abortion is a constitutional right that fetuses born 22 weeks after conception could survive.

In other words, the Supreme Court essentially ruled in 1992 that governments could enact laws protecting the life of 22-week-old fetuses rather than waiting until the fetuses were 28 weeks old.

The New York Times took a look at current state laws in a 2016 article entitled “Which States Restrict Abortion After a Certain Point in Pregnancy.” It found that:

* Seven states and Washington, D.C. “do not have specific laws prohibiting abortion after a certain point in pregnancy.” The seven states are Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont.

* Three states — Massachusetts, Nevada, and New York — ban abortions at 26 or 27 weeks, but abortions on fetuses that can survive are legal for four or five weeks.

* Seven states — Florida, Iowa, Pennsylvania, Rhode Island, South Carolina, South Dakota and Virginia — ban abortions 24 weeks after conception, but abortions on fetuses that are viable are legal for two weeks.

* Twenty states ban abortions when fetuses can viably survive, but The New York Times article reports that viability occurs 24 to 26 weeks after conception. It’s unclear how many of the 21 states have explicitly concluded that viability occurs after 22 weeks. It’s clear that The New York Times’ scientific assessment is wrong.

* Eleven states now ban abortion after 22 weeks. They are Alabama, Arkansas, Indiana, Kansas, Louisiana, Nebraska, North Dakota, Oklahoma, Texas, West Virginia, and Wisconsin.

* Two other states, Mississippi and North Carolina, ban abortions after 20 weeks.

It is a moral outrage that at least 17 states permit abortions after a fetus can survive outside the womb. These 17 states are essentially killing babies.

Liberal: “State Laws Must Change”

The scientific evidence that late-term abortions — which is often defined as abortions after the fetus is capable of surviving outside the womb – kill a significant amount of babies. It’s so significant that “state laws must change,” wrote self-identified progressive Mark Osler in a 2012 article for CNN entitled “Changes in medicine should prompt new limits on abortion.”

In the article, Osler, a University of St. Thomas (Minn.) School of Law professor whose work focuses on ending capital punishment in the United States, reports that a 2009 Swedish study concluded that 53 percent of fetuses born 23 weeks after a pregnancy begins live and the survival rates improve to 67 percent after 24 weeks and 82 percent after 25 weeks.

“Children who would have died if born late in the second trimester in 1973 would more than likely live if they were born now,” wrote Osler. “In the same way that the law had to change to accommodate advances in DNA evidence that can exonerate those on death row, state laws must change to accommodate that with modern medical care, a child born at 27 weeks is very likely not only going to live, but live a fairly normal life.”

The Centers for Disease Control and Prevention (CDC) reported that 51,923,070 abortions have been reported to the CDC from 1970 to 2012, the most recent year it reported statistics. From 1977 to 1997, there were more than 1 million abortions annually in the United States. The number of abortions has been steadily declining in recent years and was 699,202 in 2012, the lowest figure since 1974.

The CDC does not report whether the decline in abortions is due to advances in obstetrics and/or more restrictive anti-abortion laws, but it has reported that about 1.4 percent of abortions were performed at least 21 weeks after the mother became pregnant. In other words, state laws that were more concerned about fetuses that were already capable of surviving could save a few thousand lives in the United States per year.

Lower Courts: Roe Is Obsolete

Should unborn children be protected by state laws before they can survive outside the womb?

The U.S. Court of Appeals for the Eighth Circuit says “yes” — and it urged the U.S. Supreme Court to “reevaluate” its abortion decisions in 2015. The court, which has jurisdiction over seven states (Ark., Iowa, Minn., Mo., Neb., N.D., and S.D.), made its plea after declaring unconstitutional a North Dakota law that outlaws abortion after the unborn child has a “detectable heartbeat.”

“Although the North Dakota law was struck down, the three-judge panel made it clear it ruled that way because the Court had given it no choice, but that it was troubled at having to do so,” wrote SCOTUS blog author Lyle Denniston in a blog entitled “Appeals court wants Court to take new look at abortion.” “State legislatures, not courts, should be making decisions about the state of medical science, it said.”

The Appeals Court said fetal heartbeats can be detected approximately six weeks into a pregnancy so a Supreme Court decision that gives states the power to enact laws that consider the rights of the unborn could have a profound impact.

“The Court’s viability standard has proven unsatisfactory because it gives too little consideration to the `substantial state interest in potential life throughout pregnancy’,” the Appeals Court’s decision said. “By deeming viability “the point at which the balance of interests tips,” id. at 861, the Court has tied a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn. This leads to troubling consequences for states seeking to protect unborn children.”

The Appeals Court’s decision says that past Supreme Court decisions do not account for “advances in medical and scientific technology [that] have greatly expanded our knowledge of prenatal life” and points out that “a baby develops sensitivity to external stimuli and to pain much earlier than was. . . believed [when Roe was decided].”

There is, in fact, substantial evidence that fetuses can feel pain. “The First Ache” article in The New York Times says the evidence includes:

* “Fetuses as young as 18 weeks react to an invasive procedure with a spike in stress hormones and a shunting of blood flow toward the brain.”

* The production of stress hormones was halved in fetuses that were injected with a painkiller.

* “Fetuses can feel pain by 20 weeks gestation (that is, halfway through a full-term pregnancy) and possibly earlier.”

The scientific advances in learning about fetal pain have made the issue a key focus of anti-abortion laws in the past few years. Hopefully, the science on this issue will lead to the U.S. Supreme Court re-evaluating its Roe vs. Wade decision, a decision that the federal judges on the U.S. Court of Appeals for the Eighth Circuit suggest very strongly is obsolete.


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