Medical
Advancements Work Both Ways
The opinion in Roe v. Wade states that, for “the State's important . . . interest in the health of the mother, the "compelling" point . . . is at approximately the end of the first trimester. This is so because . . . until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth,” (Roe, p. 1220). The fact that earlier abortions are safer than childbirth does not necessarily imply that all later ones are more dangerous. While it may have been the case in 1973 that second trimester abortions posed a greater risk to the health of a woman than normal childbirth, that is no longer generally true. As stated in Planned Parenthood v. Casey, “advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973,” (Casey, Part III A 4). While one class of medical advances continues to lower the age of fetal viability, thereby lengthening the time during which the State has a compelling interest in preserving potential life, another class of advances continues to postpone the point in gestation when abortion becomes more dangerous than childbirth, thereby shortening the time during which “a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health,” (Roe, p. 1220).
The recently-passed Partial-Birth Abortion Ban Act of 2003 states that the procedure described therein “poses significant health risks to a woman upon whom the [it] is performed,” (S.3 Sec. 2.5). However, for abortions performed at 16-20 weeks gestation, when the so-called “partial-birth” abortion procedure begins to be commonly performed, patient mortality rates are only one per 27,000 abortions, or about 3.7 per 100,000 abortions.[1] This is to be contrasted with the mortality rate for childbirth, which has remained at about 7.5 per 100,000 live births since 1982.[2] That is to say, carrying a fetus to term is roughly twice as dangerous as getting a mid-second trimester abortion. So to use the reasoning of Roe, one might argue that the state cannot restrict abortion ostensibly in the interest of maternal health until at least 20 weeks gestation. In fact, it could be argued that any restriction of abortions prior to that time would be unconstitutional, because to preserve her own health, a woman should be able to obtain an abortion at any time prior to the point when that procedure becomes more dangerous to her than normal childbirth.
Advancing
medical technology may on the one hand continue to push the age of fetal
viability earlier and earlier, while at the same time pushing the point at
which abortions are safer than childbirth later and later. This leaves us with a significant question as
to what happens if abortion at a time in gestation when the average fetus is
viable is in general safer than carrying that fetus to term. According to Casey, “viability marks
the earliest point at which the State's interest in fetal life is
constitutionally adequate to justify a legislative ban on nontherapeutic
abortions,” (Casey, Part III A 4, emphasis added). If there came to be an overlap between the
period when abortion is safer than childbirth and the period when the average
fetus is viable, it would likely be determined that the criteria that must be
met for an abortion to be therapeutic would not include a mere probabilistic
difference in associated risk. However,
nothing in Casey states that bans on all nontherapeutic postviability
abortions would be necessarily constitutional; it merely finds that bans on
earlier abortions are not. Those in the
pro-life movement may find that the increasing capabilities of medical
technology end up working against their agenda.