Sandra Day O'Connor

What is 'medical futility'? Reporters covering 'heartbeat' bill need to ask an essential question

What is 'medical futility'? Reporters covering 'heartbeat' bill need to ask an essential question

In yet another U.S. Supreme Court ruling on abortion — City of Akron v. Akron Center for Reproductive Health in 1983 — Justice Sandra Day O’Connor found herself pondering the potential impact of advanced medical technology on the trimester framework at the heart of Roe v. Wade.

Hang in there with me for a moment. I am bringing this up because the information is highly relevant to news coverage of the bitter debates surrounding efforts to pass a “heartbeat” bill in Georgia. That was the subject of recent post by our own Bobby Ross, Jr., that ran with this headline: “Culture war winner: Atlanta newspaper delivers fair, nuanced coverage of anti-abortion 'heartbeat bill'.”

Just to be clear: I agree with Bobby that this particular Atlanta Journal-Constitution article contained a wider than normal range of voices explaining how different groups view that abortion legislation. That’s good. However, there was one crucial, and I mean CRUCIAL, point in the article that confused me. Digging into that topic a bit, I found more confusion — at AJC.com and in some other news outlets, as well.

In the end, I will be asking a journalism question, not a question about law or science.

Let’s walk into this carefully, beginning with this long quote from Justice O’Connor in 1983:

Just as improvements in medical technology inevitably will move forward the point at which the state may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the state may proscribe abortions except when necessary to preserve the life and health of the mother. … In 1973, viability before 28 weeks was considered unusual. However, recent studies have demonstrated increasingly earlier fetal viability. It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future.

The Roe framework, then, is clearly on a collision course with itself.

This is, of course, precisely what is happening. At this point, it is commonly accepted that the viability of unborn children — weight is crucial — has moved back to between 22 and 24 weeks into a pregnancy. Will science make even more progress there, in terms of helping premies survive outside the womb?

Now, onto the “heartbeat” bill debates. When can scientists detect the heartbeat of an unborn child? That would be six weeks into the pregnancy. Parents can usually hear the heartbeat, with assistance, at nine to 10 weeks. Note this passage in the story that Bobby critiqued:

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Science meets the big questions: The Atlantic examines strategic changes in pro-life movement

Science meets the big questions: The Atlantic examines strategic changes in pro-life movement

This should have been the think piece for a week ago, timed to coincide with the March for Life and other related events that weekend. I guess that includes the March For Women, as well.

Lots to think about, when the calendar gets that crowded.

However, even a week later, readers have continued to alert me to yet another Emma Green feature at The Atlantic, this time with the headline, "Science Is Giving the Pro-Life Movement a Boost." I know that I often start these pieces with the actual overture from the piece, but that truly is the logical place to start this time around. So here goes.

The first time Ashley McGuire had a baby, she and her husband had to wait 20 weeks to learn its sex. By her third, they found out at 10 weeks with a blood test. Technology has defined her pregnancies, she told me, from the apps that track weekly development to the ultrasounds that show the growing child. “My generation has grown up under an entirely different world of science and technology than the Roe generation,” she said. “We’re in a culture that is science-obsessed.”
Activists like McGuire believe it makes perfect sense to be pro-science and pro-life. While she opposes abortion on moral grounds, she believes studies of fetal development, improved medical techniques, and other advances anchor the movement’s arguments in scientific fact. “The pro-life message has been, for the last 40-something years, that the fetus … is a life, and it is a human life worthy of all the rights the rest of us have,” she said. “That’s been more of an abstract concept until the last decade or so.” But, she added, “when you’re seeing a baby sucking its thumb at 18 weeks, smiling, clapping,” it becomes “harder to square the idea that that 20-week-old, that unborn baby or fetus, is discardable.”
Scientific progress is remaking the debate around abortion. When the U.S. Supreme Court decided Roe v. Wade, the case that led the way to legal abortion, it pegged most fetuses’ chance of viable life outside the womb at 28 weeks; after that point, it ruled, states could reasonably restrict women’s access to the procedure. Now, with new medical techniques, doctors are debating whether that threshold should be closer to 22 weeks.

Now, this is a strong, fascinating piece -- as reader after reader has noted. However, I do have one critical observation.

 

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