The Fetal Viability Laws that Focus on Abortion Laws Miss the Mark for Women’s Experiences
The topic has been a hot button issue for years and continues to do so. However, there are many misconceptions that still exist. The topic grabbed media attention and continues to inspire strong emotions, but most of the discussions include numerous misunderstandings.
These debates tend to focus almost exclusively on the status of a presumed healthy fetus: Does it have a heartbeat? Does it feel pain or not? Can it survive outside the body of a pregnant woman? The problem with this framing is that it was not science or medicine, but law and politics who were preoccupied with these fetal developmental markers. Most importantly, the needs and experiences of women who are pregnant were not taken into consideration. We observed that fetal developmental markers shape the experiences of pregnant patients. These markers are important to those who choose abortion, but not to others. Do they consider abortion from the perspective of their developing fetus when making decisions? We analyzed interviews with 30 women who obtained abortions later in pregnancy to answer this question.
A history of limitations
Long before the 2022 U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision overturned the constitutional right to abortion, thousands of people each year in the U.S. were denied abortion services. This was often because the women were past the gestational limits set by their state abortion laws. Some states, like Maine and Washington, allow abortions until a certain developmental point. For example, the presumed viability of a fetus. Even in states that are considered to be pro-abortion, such as California and Illinois, limits based on fetal development still exist today. Since the Dobbs decision, abortions are denied or delayed for longer periods of time because of laws that are based on the idea of fetal markers. But in fact, laws focused on fetal markers often end up jeopardizing the life and health of pregnant patients and furthering suffering, our study shows.
Fetal development markers explained
Fetal development markers sound like they are established clinical terms, but they aren’t. The concept of “potential viability” was first used in 1970s legal theory. Then, when they were incorporated into limits on legal abortion, clinicians had to figure out how to apply them in a health-care setting.
https://www.youtube.com/watch?v=nsuzRy13HcM
Laws premised on fetal development markers around the U.S. have led to a host of lawsuits and general confusion among medical practitioners, as the language they use often doesn’t translate into medical contexts.
It’s worth noting that common shorthand is to assign a specific gestation to a particular marker–for example, saying that viability starts at 24 weeks. But this ignores the fact that fetal viability depends on many factors, including fetal weight, sex, genetics, and availability of neonatal intensive care resources.
Only about half of infants born at 24 weeks of gestation will even survive long enough to be discharged from the hospital. This number rises to over 90% for infants born after 28 weeks. And of course, just looking at whether a baby was discharged from the hospital does not capture the acute impairments that babies born this prematurely experience and ongoing medical care they will require for much, if not all, of their lives.
Focusing on the fetus’ viability overlooks the baby’s viability
When we interviewed women who had abortions after 24 weeks of pregnancy, it became evident that these legal definitions were entirely irrelevant to the realities of their fetuses’ health.
Some described carrying a fetus with a serious health issue that doctors told them would lead to its death soon after birth, just not during pregnancy. One woman told us that her child's diagnosis was likely to be born with cognitive disabilities and regular seizures. It would also be unable to control their own movements. To her, having an abortion was a way to protect her son: "I can't give him that life of pain if I have a choice."Women in similar situations struggled with the way their states’ laws focused on fetal viability but ignored the fact that the life their baby would have would be very brief and characterized by deep, sometimes constant pain. To them, the law reduced “viability” to the ability to survive birth, without consideration of the quality of their child’s life and the degree of its suffering.
Overlooking women’s health
Research and journalism have documented harrowing obstetric emergencies and their physical consequences in states where abortion has been banned. The laws in these states are often responsible for these traumatic incidents, which leave little room to protect the health and life of pregnant patients. Women in our study said that when the state law focuses on “fetal viability”, the future emotional and physical health of the patient is put at risk. She was forced to travel outside of the state for an abortion. In an interview, she stated that the staff of the abortion clinic “saved me life”. It was definitely true. They definitely did. Once it was clear that her fetus had a serious health issue and would die in utero or shortly after birth, she no longer wanted to risk her own health.
“Never mind the suffering, like needless suffering for the baby–I would also have to go through a cesarean surgery for that,” she said. In her state, however, a law based on fetal growth prohibited her from having an abortion. She, too, had to travel in order to get one.
Ultimately, the women we interviewed found the laws based in fetal development markers to be nonsensical and cruel when applied to their pregnancies. The woman who spoke to us, whose severe medical condition could only be diagnosed by doctors after the state’s 24-week cutoff for viability, expressed the issue in stark words. I can’t imagine anybody looking at that and saying, ‘Yes, that was the desired outcome of this policy.'”
This article is republished from The Conversation under a Creative Commons license. The original article can be read. Katrina Kimport, Professor of Sociology, University of California, San Francisco and Tracy A. Weitz, Professor of Sociology, American University.
Disclosure statement: Katrina Kimport receives funding from the Society of Family Planning and an anonymous private foundation. Tracy A. Weitz is funded by the Society of Family Planning Education Foundation of America and William and Flora Hewlett Foundation. She is associated with Cambridge Reproductive Health Consultants (CRHC), Fund Access Forward (FAF), Democracy Forward, Abortion bridge Collaborative, Breast Cancer Action.
