Late-Term Abortions as a Current Example
The debate over late-term abortions provides a current context demonstrating the coming dilemma. Late-term abortions are generally defined as abortions that occur at a state of fetal development that would give the fetus a high probability of survival if born alive. Using that definition, late-term abortions exclude all first-trimester abortions; include all third-trimester abortions; and include some second-trimester abortions and exclude others. Late-term abortions are seen as necessary when fetuses are discovered to have congenital defects or to save the life of the mother. Only a fraction of late-term abortions performed, however, are done for fetal anomalies or to save the life of the mother; many are done for non-medical, elective reasons. Of the estimated 30,000 late-term abortions performed each year, as many as eighty percent of these may be ‘elective,’ that is, the vast majority of these late-term abortions are performed in the twenty-plus week range on healthy fetuses and physically healthy mothers. Even where the pregnancy poses a threat to the woman's life at gestational stages when late-term abortions are typically performed, immediate delivery of the fetus with vigorous supportive care would result in survival of many fetuses.
Whatever the reasons that prompt them, late-term abortions are intended to ensure that an unwanted fetus/infant is not born alive. Because of the size of the fetus, more common abortion techniques such as “suction curettage” are unsuitable in late-term procedures. More common late-term procedures include amino infusion and “dilation and extraction.” However, some of these procedures have resulted in some undesired live births or serious complications. All “late-term” methods have the following in common: they require that a doctor induce labor to dilate the cervix, and terminate the fetus before delivery. Another procedure, “Dilation and Extraction” (D&X) or partial-birth abortion was specifically developed in response to the live birth problem. D&X involves inducing labor, rotating the fetus so that the feet and legs delivers first and causing the death of the fetus before its head can be born. Thus, because labor is induced and the fetus is “born,” a D&X or “partial-birth abortion” involves no more physical risk to the woman than if she decided to have the fetus born alive. This technique is used when the fetus/infant is too large for an abortion by dilation and evacuation and to assure that there is not a failed abortion and the fetus/infant is born alive.
In Gonzalez v. Carhart, the Court focused on which procedure a state might legally ban, however, in line with the Court's previous rulings, a state might legally ban all late-term abortions that resulted in a dead fetus. The American College of Obstetricians & Gynecologists (ACOG) found no circumstances where D&X would be the only option to save the life or preserve the health of the woman. Because labor is induced and the fetus/infant is “born,” a D&X or “partial-birth abortion” involves no more physical risk to the woman than if she decided to have the fetus/infant born alive. There is, of course, some danger to the fetus/infant of a pre-term delivery. At less than twenty-four weeks, fetal/infant survival is about thirty percent, between twenty-four and twenty-six weeks gestation fetal/infant survival is between fifty and seventy-five percent.
The problem with the intact D&E/partial-birth abortion debate specifically, and the abortion debate in general, is that it is based on the false presumption that the full authority on whether to reproduce is housed solely in the woman. Thus, partial-birth abortion allows the woman to make both the decision to remove the fetus/infant from her body and the decision to kill the fetus/infant. While commentators argue that intact D&X/partial-birth abortion are the lesser of several evils because they are substantially safer for the mother than the other leading methods of late-term abortion, they make no assertion about the comparative safety between intact D&X/partial-birth abortion and giving birth to a live fetus/infant. In fact, they cannot make that assertion; intact D&E/partial-birth abortion carries inherent health risks more significant than childbirth. In Gonzales v. Carhart, the state law banned a particular procedure, when the state might have just as easily, and more successfully, chosen to ban all post-viability procedures that result in a terminated fetus.