Reading the decision, I find it a bit heartening that it formally makes a distinction between “child” (a term that appears in numerous laws) and “unborn child / fetus” (which does not), and declines to choose to interpret the former to include the latter.
ETA: it belatedly occurs to me that this thread is still in GQ and I’m venturing opinion and not fact, so I’ll absent myself further pending a change of venue.
Whether the child was “born alive” is also a matter of definition in that case, the decision mentions the child being “essentially brain-dead” due to lack of oxygen in the uterus.
I suppose this is one of those hair-splitting logic cases where it’s up to the judge(s) to decide if actions taken before birth, before there is another person, can be interpreted as causing harm to another person.
Note though the case mentioned is about parental neglect, not deliberate murder. I suppose the other judgement is whether actions taken by the mother should foreseeably result in damage to the child. After all, not every maternal high causes the death of a fetus, whereas an abortion has a specific goal in mind for the fetus.
“Abortions” the day before the due date are also called caesarian sections. And they’re done all the time to protect the health of both the mother and the baby. If really necessary, they can be done weeks or months before the due date.
I’ve tried to make this argument with a few anti-abortion folks in the past, and I have found that there is a steadfast belief that there are THOUSANDS and THOUSANDS of such abortions performed every year. Boggles my mind.
Very true. Intent as a major factor in how the law chooses to treat an action… imagine that.
I see. But is there any provision in laws that permit late-term abortions that addresses a physician who is dealing with a fetus who is perfectly viable in every way, but still opts to abort (using saline, dismemberment or whatever) vs. just delivering the live baby?
I believe caesarian section and abortion generally refer to different things. The most common method to perform a late-term abortion is intact dilation and extraction, which involves cutting a hole in the fetal skull and removing the brain, which is not very protective of the health of the baby.
Regards,
Shodan
So I guess it is possible that someone could get an abortion of a perfectly viable fetus the day before the due date, provided they could find a qualified physician who would agree under the above clause that the mother’s life or health were at risk.
The question is, how likely is it that all those circumstances would come together to make that happen? How many women decide after 8 months, “You know what? I changed my mind.” how many doctors want to do the operation? How many are willing to bet their license that the medical association will agree with their assessment of the woman’s health risk?
All the replies to the OP refer to the woman’s life being endangered, and that’s true, but it also
[Bolding mine.]
Prior to this change, women in New York whose pregnancy was beyond 24 weeks who found out their fetuses had conditions that would invariably prove fatal just before or shortly after delivery had to travel to one of four states that allowed abortions after 24 weeks.
One such condition is osteogenesis imperfecta type 2. This is a rare condition in which the fetal bones are so fragile, merely moving in utero causes multiple bone fractures. (Fetuses can’t feel pain, which is essentially a brain function, until sometime in the third trimester.) The mortality rate is 100%, either in utero or at/very shortly after birth.
The abortion procedure involves administering an injection directly into the fetus that stops the heart. The woman undergoes a medical procedure to deliver the fetus in 4-7 days.
Other conditions, such as an absence or severe deformity of fetal lungs, would also fall into this category of fetal inviability.
I guess I’m reacting to the implication that a doctor would just go along with aborting a fully formed fetus without any medical, as in physical rather than emotional, reason for it. If the fetus is viable and it’s fully developed, what would be the point, for the doctor, of not doing a caesarian? Or inducing labor? If a woman is fragile enough that she can’t survive a regular delivery (or waiting for a regular delivery) and can’t survive a caesarian, would she have a better chance of surviving a D&E? And will that be true often enough to be more than a theoretical concern?
If the fetus isn’t viable, I can see doing whatever is least damaging to the mother. And I can see some people objecting to giving God another two weeks to come through with that miracle. And that would be something that law would cover and I fully approve of that. But it would be odd to find out that late and I don’t know if a D&E would be safer than inducing labor.
I just don’t think that “I don’t want this baby” is likely to be much of a consideration that far along in the pregnancy. I also expect that if there’s a medical reason to terminate the pregnancy that late, odds are that the doctor will be trying to save both the mother and the baby. And odds are that the mother would demand that.
That wording seems to mean exactly what the actual wording means, quoting from Snopes:
A health care practitioner, acting within his or her lawful scope of practice, may perform an abortion when, according to the practitioner’s reasonable and good faith professional judgment based on the facts of the patient’s case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.
Sure, it doesn’t say “reached through informed decision,” but it would be unlawful for a doctor to perform their practice without consent. And it does say 24 weeks, not 28. And it does say “health care practitioner,” as who can perform abortions is defined elsewhere.
But otherwise, it seems to say the same thing. If anything, it seems more restrictive, since the practitioner can’t merely believe an abortion is “appropriate,” but either the life of the fetus or life or health of the mother is in jeopardy.
According to the CDC, excluding California, Maryland, and New Hampshire, there were 8,296 abortions in 2015 at or after 21 weeks.
He was responding to this:
21 weeks is closer to halfway through the gestation period of 40 weeks. Do you have stats for, say, 38 to 40 weeks to dispute the claim?
The data aren’t real clear, but
Cite. More nuanced than “I just don’t want this baby”, but not very much. Most late-term abortions are on a healthy fetus with a healthy mother.
Not if she is seeking an abortion. The abortion law in the OP is not about women who want to have a child.
Regards,
Shodan
There are very rare and tragic cases where delivering the baby via c-section would kill the mother, and delivering vaginally would kill the mother. A choice needs to be made on which life to save. That choice is made by the only person who can make that choice - the mother whose life is being traded. The law understands this, and therefore allows you to abort at any time.
That’s 16+ weeks. Those are more mid-term abortions.
I agree with your points. However, the reason I mentioned that case was because a statute can overrule the common law “born alive” rule.
So I think it would be reasonable to argue that under this NY statute, if a doctor performed a late term abortion, in compliance with all of the vague terms of the statute, and the child was “accidentally” born alive, the doctor could point to the statute as a defense.
Like in the case, it would be absurd to criminalize conduct that was not illegal when it occurred, and would still have not been illegal had the conduct been successful, but only springs into criminality because of fortuitous circumstances.
One of the unexplored areas of the Louk case above would be that it was not her choice or a natural circumstance that caused her child to be born alive. If the case came out the other way, and the mother was conscious, could she refuse all medical help so that the child/fetus would die inside her, thereby immunizing her from criminal liability? That seems an absurd result.
Plus, look at the #1 reason - 71% of women were unaware they were pregnant or misjudged gestation.
I’ve dated two different women over the years who mentioned their mothers were unaware they were pregnant until several months in. (Google “decidual bleeding”) which is also a reason to think conception happened more recently than it did. Plus, some women could be in denial. (There are also many women who are unaware they are pregnant until they give birth - it happens, you see it every so often in the news.) But generally there’s an undeniable symptom of pregnancy that becomes obvious to most women except the morbidly obese by the fifth month. Five calendar months is about 24 weeks or later; “16 weeks or later” is quite a bit earlier. Lest than a quarter of women seeking abortions in that study waited to 16 weeks.
I will repeat - I don’t think there’s a herd of doctors chomping at the bit to perform abortions on perfectly viable third-trimester fetuses simply because the mother wants to, let alone doing so in the current USA political climate.
Nope. Though I’ve seen these stats on various sites–particularly anti-abortion sites–they’reinaccurate for discussions of late-term abortions. The 31-year-old Guttmacher Institute data referred to in this Wiki article are, as noted, reasons given by women for abortions after 16 weeks. Abortions that occur between 16 and 20 weeks are considered mid-term, not late-term abortions. Since around 90% of abortions take place before the 12-week mark, and 1.3% take place at or after 21 weeks, we can infer that the reasons listed are much more likely to apply to mid-term and not late-term abortions.
For instance, it’s much more likely that a women having an abortion at 16 weeks were unaware they were pregnant or misjudged gestation than at, say, 24 weeks.
It’s a blow for those prefer to vilify women who seek late-term abortions,. It’s far easier to condemn them as selfish creatures who decide they’d rather end their pregnancies late in the term because swimsuit season is approaching than to have compassion for them due to the heart-rending choice they face in nightmarish circumstances.
I’ll keep it GQ. It does not take a “herd” of doctors to perform late term abortions. It only takes one in the entire state. The women will then go to that doctor.