Premature Births and Abortion

The story of premature infant Amillia Taylor has prompted anti-choice groups and the media to draw a connection between Amillia's survival and the issue of abortion.  While this connection is not always clearly spelled out, some see an anomaly between Amillia's birth and the fact that states may allow abortions of fetuses of the same gestational age as Amillia.  For example, a story on LifeSite asserts: "Comments posted on Newsbusters pointed out that at 35 weeks from conception, Amillia is still three weeks from her natural birth date and could legally be aborted in many states if she had remained in her mother‘s womb."

But the constitutional framework that the Supreme Court applies to abortion is based not on a particular gestational age, but rather on viability.  The test established in 1973 in Roe v. Wade, and upheld in relevant part in 1992 in Planned Parenthood v. Casey, allows states to ban abortions (with life and health exceptions for the woman) after viability, whenever that may occur.  In Casey,  the Court stated:

"[V]iability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future."

Of course, what exactly constitutes "viability" is a tricky question, one that neither Roe nor Casey fully answer.  The Court stated in Roe:  "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb."  In Planned Parenthood v. Danforth, the Court noted that viability is "a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability."  One need only read the news stories about Amillia Taylor to see how difficult it can be for physicians to make such determinations.  From Life at 21 Weeks: Immature Lungs and a Handful of Fragile Skin and Pain (ABC News):

But the medical triumphs that allow a tiny 10-ounce baby to survive are often fraught with trauma and tragedy.

Consider this: At 25 weeks gestation or younger, a tiny baby can fit in the palm of a hand. Its skin is gelatinous — red and shiny and prone to infection like a burn victim — and sloughs off in the doctor's hand. The baby's windpipe is so small it can be crushed by a breathing tube.

And there is the pain, treated with narcotics that can cause dependency and withdrawal symptoms.

The long-term prognosis for babies this young includes mental retardation, blindness, deafness, cerebral palsy and — in the best scenario — learning disabilities.

But, if one agrees that viability is the correct marker, it's hard to imagine that we would be better off having legislators or courts decide when it occurs.  In any event, most doctors, including the ones who delivered and cared for Amillia, seem to agree that Amillia's survival was an exceedingly rare occurrence, and should not be taken as a sign that infants born this prematurely will routinely survive.