Unconscionable Cruelty: Nebraska?s Twenty-Week Law Meets the Real World

Unconscionable Cruelty: Nebraska?s Twenty-Week Law Meets the Real World

Carole Joffe: Nebraska?s Twenty-Week Law Meets the Real World

“Nebraska?s new abortion law forced Danielle Deaver to live through ten excruciating days, waiting to give birth to a baby that she and her doctors knew would die minutes later, fighting for breath that would not come. And that?s what happened. [After the baby girl was born]?Deaver and her husband Robb watched, held and comforted the baby as it gasped for air, hoping she was not suffering. She died 15 minutes later.?

This deeply sad?and cruel?incident, which occurred several months ago in Nebraska, and was reported recently in the press, is not only an obvious tragedy for the parents involved, but a teachable moment for those who are following the consequences of the latest round of extreme abortion policies put in place by anti-abortion legislators. Ms. Deaver was nearly twenty-three weeks pregnant when she found out she had suffered anhydramnios, a premature rupture of the membranes before a fetus has achieved viability. This diagnosis meant that if she carried to term her baby would almost certainly die in great discomfort shortly after birth.

The Deavers sought an abortion. But Nebraska has recently passed a law that forbids abortions after twenty weeks, on the scientifically disputed grounds that twenty weeks marks the point at which fetuses can feel pain. (The view most accepted in the medical community comes from an article published in the Journal of the American Medical Association by a group of scientists at the University of California, San Francisco, who concluded that a human fetus probably does not have the capacity to experience pain until the twenty-ninth week of pregnancy at the earliest). The only exception permitted by Nebraska?s law is a threat to the pregnant woman?s life. Several other states are now considering similar legislation.

The first, most obvious lesson to be drawn from this incident is of the growing fanaticism among anti-abortion state legislators and advocates with respect to abortion regulation, and their corresponding indifference to parental wishes. Like numerous other cases of later abortion with which I have become familiar in the course of my research, the Deavers sought an abortion, in this case of a much-wanted pregnancy, precisely to avoid the kind of suffering that their baby ended up enduring.

But the parents? wishes, not to mention the newborn?s agonizing fifteen minutes of struggle before she died, are of little consequence to those who promote such measures. As Nebraska legislator Senator Mike Flood told the press, ?Even in these situations where the baby has a terminal condition or there?s not much chance of surviving outside of the womb, my point has been and remains that it is still a life.? A leader of Nebraska Right to Life similarly told the press that it was ?more humane for the baby to die in a loving manner with comfort care and in the arms of her parents than by the intentional painful death through abortion.? Reading these statements, I could not help but be reminded of the very different approach to parents in situations similar to the Deavers taken by the chaplain who worked with the late Dr. George Tiller in Wichita. He told me of the pastoral counseling he offered to those receiving later abortions because of fetal anomalies: ?This was holy work we were doing here. We gave the parents the gift of not having to make their babies suffer.?

A second lesson that emerges from this incident points to the misguided nature of the recent calls by two pro-choice writers for their colleagues in the abortion rights community to relent on the defense of post?first trimester abortions. Both Frances Kissling, former president of Catholics for Choice, and William Saletan, of Slate.com, have argued that the pro-choice movement is losing ground??caught in a time warp,? as Kissling put it in a widely disseminated Washington Post op-ed?because of its refusal to acknowledge ?the existence and value of the fetus.? In order to regain public support, both authors suggest, the movement must be willing to question the legitimacy of abortions in the second trimester and beyond. To be sure, when Kissling wrote that ?we need to firmly and clearly reject post-viability abortions except in extreme cases,? she also went on to list several exceptions, including ?when the fetus suffers from conditions that are incompatible with a good quality of life.?

Kissling and Saletan?s call for a retreat on procedures after the first trimester may indeed be good politics, in that the American public as a whole is considerably more supportive of abortion in the first trimester than later. But the Nebraska case illustrates why their proposal is such bad policy. As noted above, Kissling makes quite clear her view that an abortion for a fetus in a situation similar to this Nebraska case would be justified, at twenty-three weeks and presumably later. Most Americans, when confronted with the facts, would probably reach the same conclusion. But the only relevant point here is that a majority of Nebraska legislators, in their refusal to allow any exceptions except a threat to the woman?s life, did not!

Kissling and Saletan offered their proposals as if there exists in the United States universal consensus as to what constitutes justifiable exceptions to abortion laws. But in my view this approach is naïve, considering the enormous politicization of the abortion issue. As just mentioned, the Nebraska legislators did not see fit to make fetal anomalies an allowable exception to the twenty-week cutoff date.

Moreover, even when legislation does contain such exceptions as ?threats to a woman?s life,? ?serious health risks? to a woman, or ?poor quality of life? for a fetus if the pregnancy continues, what these exceptions actually mean in practice is not always clear, and relies on subjective judgments by physicians?and often lawyers. And that is why the legal as well as legislative climate in the particular place where a contested pregnancy occurs is so consequential. Consider this press account of the deliberations of Danielle Deaver?s physician after she and her husband requested an abortion.

Dr. Todd Pankcatz, her primary physician?said he asked several attorneys to review the law to see whether he could fulfill the family?s request to terminate the pregnancy?Because of the uncertainty, Pankcatz said he was advised not to fulfill the family?s request. “There were criminal charges that I would potentially face by intervening in a pregnancy like this,” Pankcatz said. Physicians who break the law face felony charges that could result in five years in prison and a $10,000 fine.

For me, the overriding lesson to be drawn from the Deavers? tragedy is that abortion rights advocates have to keep explaining to the American people why ideologically driven abortion restrictions have no place in a compassionate society.

An earlier version of this post appeared at RH Reality Check.