Roundup: The More Science Changes, The More Viability Remains the Same

Robin Marty

Science and technology has changed a lot in the last 15 years, but none of that has made a dent in the survival rate of fetuses born before 24 weeks.

Nebraska threw the fetal viability line into the spotlight with its recently passed law.  But viability isn’t as cut and dry as the 24 week threshold, and I don’t mean because of some vague science claiming “pain” possibilities.

Anti-choice advocates are claiming that medical science is constantly changing, and that soon fetuses will be surviving earlier and earlier outside of the womb.  However, even with all of the advances in technology seen in the past two decades, none appear to have done anything to advance viability.

Despite increasing efforts by doctors and advances in medicine, survival rates for babies born before the existing 24 week limit have not changed since the 1990s, a study has found.

The findings clash with previous research from one hospital in London which suggested that 40 per cent of babies born at 23 weeks survived.

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That was used in evidence to MPs considering whether the abortion time limit should be lowered.

The latest study however, published in the journal Archives of Disease in Childhood, suggests survival rates are much lower than 40 per cent for very premature babies – and are not improving.

The experts analysed infant deaths among 229 babies born alive at 22 or 23 weeks in Newcastle from 1993 to 2007.

The length of time the babies lived gradually increased over that time – from 11 hours to 3.7 days – reflecting lengthier and more active treatment such as resuscitation and surgery.

However survival rates did not. In total, only 19 survived. Six survived between 1993 and 1997; six survived between 1997 and 2002; and seven survived between 2003 and 2007.

Doctors remind people using the data that the other difference is that extreme measures were used to attempt to keep these planned babies alive, and even with the interventions many of them were still lost.

Co-author Dr Nicholas Embleton, of the Newcastle Neonatal Service at the Royal Victoria Infirmary in Newcastle upon Tyne said: “Over the last 15 years, increasing numbers of babies less than 24 weeks received active resuscitation.

“Overall survival has not changed, but non-survivors endured significantly longer durations of intensive care.

“Some will feel that the prolonged periods of intensive, but unsuccessful, care demonstrated in this report are either futile or inappropriate.”

Rebecca Findlay spokesperson from FPA, formerly the Family Planning Association, said: “The survival rates of preterm babies are often used by people against abortion as evidence to cut the 24 week time limit for abortion. This research shows again that sadly, the chance of babies born under 24 weeks surviving is very small so this shouldn’t be used as justification for reducing the time limit

“Only a small number of women seek an abortion over 20 weeks of pregnancy and they’re often in very tragic circumstances.”

And that is the real point.  Abortion near or after 20 weeks overwhelmingly a case of an intended, wanted pregnancy being found nonviable, or dangerous to the mother or fetus’s health.  It is simply about taking away a woman’s ability to choose how to best manage her own physical health in the face of a catastrophe.

But, anything to have a chance to enforce your will over that of a woman’s, right?

[S]urely the main point should be a woman’s right to choose and not whether a baby might survive with medical intervention?

If the two are always linked, the length of time available for a woman to have an abortion will gradually decrease as medical science progresses and increasingly premature babies survive. This, of course, would suit prolifers down to the ground as they’d love to make all abortion illegal.

The need to take away a woman’s ability to deal with a medical issue on a wanted pregnancy after 20 weeks, the desire to force her to jump through hoops to rid herself of an unwanted pregnancy much earlier on, and the fear mongering scare tactics in pushing talking points that abortion causes cancer, are all ways for one section of society to decree what it believes is best for women.

Dan Savage puts it best in his latest column:

What most anti-choice activists have a problem with—almost all of them motivated by our sex-hating, woman-hating religious “traditions”—is sexually active women, period, whether they’re using birth control or not, whether some seek to terminate their pregnancies early or late. They want to punish sexually active women. They want to deny women access to the life-saving HPV vaccine, they want to deny women access to birth control, they want to deny women access to abortion services. And when they can’t outright deny women access to abortion—and for now they can’t—they will do all they can to make sure obtaining an abortion is a humiliating and traumatizing ordeal.

April 21, 2010

Obama: No ‘litmus’ tests on abortion in choosing Supreme Court nominee – NewsOK.com

American Idol Gives Back: To groups that support abortion! – Examiner.com

Abortion doc’s killer files petition; hearing set – The Associated Press

We mustn’t meddle with the abortion time limit – Mirror.co.uk

Dr. Dog Digs in with Shame, Shame – The Portland Mercury

Pro-life discrimination in Garden State halted – OneNewsNow

Oklahoma Senate Passes Five Controversial Abortion Bills – truthout

Wisconsin AG asked for legal opinion on abortion issue – FOX 21 Online

Oklahoma joins push for new restrictions on abortion – The Guardian

Florida’s Christian Family Coalition throws tantrum over parental notification … – Examiner.com

Group Says Abortion Clinic Failed To Report Sex Abuse – WLKY Louisville

Not an excuse for abortion – Deseret News

Pregnant 10-Year-Old Sparks Abortion Debate in Mexico – GlobalShift

Plano man indicted for threatening deadly force to stop abortions at Dallas … – Dallas Morning News

Dallas-area man indicted in abortion threat case – Dallas Morning News

Abortion Doctor Murderer Says He’s Mistreated in Prison – WLTX.com

Abortion restriction passes General Assembly – Lynchburg News and Advance

Judicial Bouts Reveal Power of Persuasion – New York Times

Va. legislature votes to restrict abortion funding – Washington Post

Okla. lawmakers approve restrictive abortion bills – The Associated Press

Parental notification, consent should be required for abortion – Homer News

McDonnell bid to restrict abortion funding upheld – The Virginian-Pilot

Update right to choose urged – Albany Times Union

16 and Pregnant and Almost True – Mother Jones

Clergy Gather in Albany to Urge Passage of Reproductive Health Act (S.5808) in … – ReadMedia

Family planning groups engage advanced gear – The Observer

Supporters: New Wisconsin law will lead to more voluntary testing for HIV  – FOX6Now.com Milwaukee

New Law Makes HIV Testing Easier– WMTV

HIV treatment should start earlier: Experts – Calgary Herald

HIV rampant in federal prisons: Report – Vancouver Sun

Campaign to End AIDS turns five – Examiner.com

April 22, 2010

Abortion-related bills signed in Nebraska, vetoed in Kansas – The Pilot

Virginia legislature restricts abortion funding – Washington Post

Abortion looms over Supreme Court fight – Washington Times

Veto session a mixed bag – Roanoke Times

Hoeffel — Onorato flipped on abortion – Allentown Morning Call

Shocking New Abortion Bills Require Vaginal Probe Ultrasound and Collection of … – AlterNet

Survival of babies born before 24 week abortion limit ‘not improved’ – Telegraph.co.uk

Abortion foes wage war on old allies – Politico

Group says abortion law needs to be updated – Albany Times Union

Plano man indicted on charges of threatening to use deadly force at Dallas … – Dallas Morning News

Columnist wrong about need for access to abortion – Belleville Intelligencer

Birth Control Pill Turns 50 and More Health News – The Stir

The moral challenge: A Pakistani woman’s fertility – DAWN.com

Global strategies for sex education  – Globe and Mail

Few Boys Receive Counseling On STIs, Contraception, Study Shows – Medical News Today

TIME Magazine’s ‘Love, Sex, Freedom and the Paradox of the Pill: A Brief … – MarketWatch

Teaching Birth Control: Punishable Offense? – The Stir

Miami-Dade County sees surge in STD cases – MiamiHerald.com

Bullying of LGBT youth not a priority – Bay Area Reporter

Teen mom’s message: Don’t do what I did – Journal Times

Utah’s Feticide Law Puts Miscarriage on Trial – WomensRadio

Women Who are Uninsured – Tucson Citizen

US announces midwife training for Afghans in Egypt – Bikya Masr

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.

Roundups Law and Policy

Gavel Drop: Conservatives Try New Tactic to Discredit Fetal Tissue Research

Imani Gandy & Jessica Mason Pieklo

But what they need to do is give up their fight against it.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.
Republicans absolutely refuse to give up on their campaign to discredit fetal tissue research.
Attorneys in Florida are challenging portions of a new anti-abortion law that tries to block Medicaid funding to Planned Parenthood, mandate additional inspections of abortion clinics, and change the definitions of pregnancy trimesters.
So Bill Cosby’s sexual assault trial is moving forward. At least for now.
Meanwhile, some states are reconsidering statutes of limitations in rape cases.
This look at the costs to children and states when a parent is incarcerated is just devastating.
A federal judge ruled Portland, Maine can’t use its noise ordinance to restrict clinic protesters’ access to a local Planned Parenthood.
In other news about clinic protests, a federal appeals court revived a challenge to a Pittsburgh buffer zone ordinance.
Broadly explores how Texas clinic closures are affecting women who are undocumented.
Colorado State University was not illegally using tax dollars to subsidize abortions, ruled a Colorado judge.
Turns out that even the women on the Supreme Court get interrupted more than their male colleagues during oral arguments.
The U.S. women’s soccer team continues to fight for equal playing conditions, this time arguing they have the right to strike if concerns about poor playing conditions and equal pay are not addressed.
Speaking of pushing equality forward, this transgender veteran sued the barber who refused to do their hair.
Justice Stephen Breyer may be driving the Supreme Court’s compromise efforts in Zubik v. Burwell, not Justice Anthony Kennedy as Linda Greenhouse of the New York Times previously thought.