Reproductive Rights Prof Blog

Editor: Caitlin E. Borgmann
CUNY School of Law

A Member of the Law Professor Blogs Network

Friday, February 3, 2012

Post-Viability vs. Third-Trimester Abortion Bans

CNN opinion: Changes in medicine should prompt new limits on abortion, by Mark Osler:

(CNN) -- Thirty-nine years ago, Roe v. Wade was decided. With the passage of nearly four decades, the landscape of abortion has changed in a way that should trouble even those who consider themselves pro-choice.

Right now, 10 states and the District of Columbia have no statutory time limit on when abortions can be performed, while five more states allow abortion up to the end of the second trimester (about 27 or 28 weeks). Yet, we know that by 28 weeks, the great majority of fetuses would survive birth. In other words, we allow the killing of viable infants in our country. This is a fact that progressives (including me) would rather not address. . . .

_______________________________________________________

Osler states that "one part of [Roe v. Wade] lives on in the statutes of some states and the practices of several doctors: The assertion in Roe's majority opinion that 'viability is usually placed at about seven months (28 weeks).'" Osler is apparently referring to the fact that five states prohibit abortions not after viaiblity, but after the second trimester. He seems to be urging those states to change their bans to apply at viability rather than at the third-trimester mark.  They are, of course, free to do that.  Roe v. Wade held that states may ban abortions at fetal viability (provided the ban includes exceptions for women whose life or health is at risk).  Although the Court noted that viability generally (at that time) occurred around 28 weeks, it did not fix viability at any particular point in pregnancy.  The Court recognized that viability varies from one pregnancy to another and must be individually determined by the physician.  In fact, laws that prohibit abortions at a fixed point in pregnancy are unconstitutional under Roe for a reason many don't even think about, namely because they ban abortions of some non-viable fetuses.  A fetus whose brain has not developed, for example, will never be viable -- not at 23 weeks, not at 27, not at 30.  A woman with a wanted pregnancy who learns only in the third trimester that her fetus will not survive should not be forced to continue her pregnancy to the end, constantly confronted by well-meaning friends and strangers asking when she is due and whether she is having a girl or a boy.

-CEB

http://lawprofessors.typepad.com/reproductive_rights/2012/02/push-to-change-viability-to-less-than-28-weeks.html

Abortion, Abortion Bans, Bioethics | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef0167619c26ea970b

Listed below are links to weblogs that reference Post-Viability vs. Third-Trimester Abortion Bans:

Comments

First: A large proportion of preterm babies born before 28 weeks (from last menstrual period), have some, sometimes severe damage. In Switzerland the (unofficial) rule is, not to give life support care to preterm babies before 24 weeks.

Second: the number of 3rd trimester abortions is VERY small. Mainly they are for severe fetal malformation detected too late. Extremely few are done for physical or psychiatric reasons of the woman - women with denial of their pregnancy because of psychiatric problems for instance, highly suicidal women.

3rd trimester abortions should remain allowed for life threatening AND health reasons (physical and mental). Absolutely NO woman or doctor is going to have or do one just out of a whim. Canada has no abortion law at all - the number of very late abortions there is no greater than anywhere else.

Posted by: Anne-Marie | Feb 4, 2012 6:09:47 AM

Post a comment