By Douglas Johnson, NRLC Federal Legislation Director
WASHINGTON (June 5, 2015) — On May 13, 2015, the U.S. House of Representatives passed the Pain-Capable Unborn Child Protection Act, a bill that would generally prohibit abortion after 20 weeks fetal age, with certain exceptions. The National Right to Life Committee (NRLC) supports this bill — indeed, the core of the bill originated as a model state law proposed by NRLC in 2010 and since enacted in 11 states.
On May 13-14, the New York Times published “House Approves Revised Measure Banning Most Abortions After 20 Weeks,” by Emmarie Huetteman. Throughout the story, Huetteman and/or her editors betrayed an ignorance that there are two different methods for dating pregnancy — each method being valid, each method being employed in different fields of medicine, and either method readily adaptable for legislative purposes, as long as the legislation contains a clear definition of which method is employed.
The Times story referred to the House-passed bill as applying “after 20 weeks of pregnancy” and “20 weeks after fertilization” as though those two phrases meant the same thing, when they do not mean the same thing — 20 weeks “after fertilization” is equivalent to 22 “weeks of pregnancy.” The bill that the House passed applies 20 weeks post-fertilization, which is 22 “weeks of pregnancy.”
From that fundamental confusion, the Times became mired in serious errors, the worst being embodied in this sentence:
Prohibiting most abortions 20 weeks after fertilization would run counter to the Supreme Court’s standard of fetal viability, which is generally put at 22 to 24 weeks after fertilization.
Everything about that sentence is wrong. It was simply erroneous for the Times to assert that “fetal viability . . . is generally put at 22 to 24 weeks after fertilization.” [my italics, for emphasis] It would be much more defensible to say that “viability” is “generally put at 22 to 24 weeks of pregnancy” or “generally put at 22 weeks dating from the last menstrual period,” which would be 20-22 weeks after fertilization.
Moreover, the U.S. Supreme Court has never defined, as a matter of law, “viability” as occurring at a specific number of weeks into pregnancy, by either system of dating. The way the Court has actually defined “viability” for legal purposes is “potentially able to live outside the mother’s womb, albeit with artificial aid.” More on that later.
Beginning on May 14, I endeavored to get the Times to correct the manifest errors embodied in that story, and most especially in the “would run counter” sentence. My effort began with a very short and quite unsatisfactory exchange with the reporter, who immediately cut me off, was unwilling to listen to any explanation on the substance, and suggested that I should “take it up with the people who wrote the bill.” Over the following three weeks, I attempted to communicate with four different editors on the matter. I say “attempted,” because at no point did any editor offer any response, verbally or by email, on the substance of the detailed, documented critiques that I provided by email. At no point did any editor at the Times actually challenge anything I said, or request further documentation, or inquire as to what I thought might constitute an appropriate correction in the event that any error was ultimately conceded. At most I received perfunctory acknowledgments that emails had been received, and then The Gray Wall of Silence.
I think it is fair to say that most people, attempting to educate a newspaper’s editors on a point of fact, would have given up after the first week or so, or sooner. That’s why those “corrections” columns you see in the Times and some other newspapers each day are so short, and seldom contain corrections on the errors that you have personally noticed. But I persisted. After more than three weeks of making a polite pest of myself every couple days or so, we see in today’s Times an extremely parsimonious correction:
Because of an editing error, an article on May 14 about the House’s recent approval of a ban on most abortions 20 weeks after fertilization misstated the Supreme Court’s position on a general standard of fetal viability. Although the court has said that women have a right to an abortion until the fetus is viable outside the womb, it has not said that viability occurs “22 to 24 weeks after fertilization.”
Okay — so now we know, at least, something that the Supreme Court “has not said.” That’s good, as far as it goes. But it doesn’t go very far. The correction fails to acknowledge or correct the manifest confusion that ran through the entire May 13 Huetteman story, regarding the two different medical dating systems for pregnancy, and regarding the point at which “viability” in fact exists under modern medical practice. The correction is completely silent on the second and arguably more important error contained in the May 13 “would run counter” sentence, that being the declaration, made in the Times’s own voice, that viability “is generally put at 22 to 24 weeks after fertilization” [italics added for emphasis], which is equivalent to asserting that viability is generally put at 24 to 26 weeks of pregnancy. It wasn’t the Supreme Court that made this indefensible assertion — it was the New York Times, in its own voice.
It is odd that Times editors did not blink when they said it, especially since the paper had published an article headed “Premature Babies May Survive at 22 Weeks if Treated, Study Finds,” by Pam Belluck, only a week earlier (May 6). The Belluck story summarized findings of a study in the New England Journal of Medicine, widely reported, which found that nearly one-quarter of preemies born at 22 weeks of pregnancy survive long term if given “active” assistance. The findings of that study certainly seem to have some pertinence to the legislation that Ms. Huetteman purported to describe, since again, that bill would generally prohibit abortion, with certain exceptions, beginning at 22 weeks of pregnancy.
[I should take note, however, that the entire sentence (“Prohibiting most abortions 20 weeks after fertilization would run counter to the Supreme Court’s standard of fetal viability, which is generally put at 22 to 24 weeks after fertilization.”) today disappeared from the May 13-14 Emmarie Huetteman story as it appears on the Times’s website.]
If the Times editors had really been interested in repairing the misinformation that the original Huetteman story implanted in the minds of Times readers, they would have run a correction somewhat along these lines:
The “House Approves Revised Measure Banning Most Abortions After 20 Weeks,” May 13, confused two different systems for dating pregnancy, each of which is used by different medical specialties and each of which is sometimes incorporated into legislation. The bill passed by the House of Representatives, the Pain-Capable Unborn Child Protection Act, would prohibit abortion beginning 20 weeks after fertilization, with certain exceptions. This is equivalent to 22 weeks after the woman’s last menstrual period, usually rendered as “weeks of pregnancy” or “weeks gestation.” The story was in error in asserting that viability “is generally put at 22 to 24 weeks after fertilization”; this should have read “generally put at 20 to 22 weeks after fertilization” [or “generally put at 22 to 24 weeks of pregnancy”]. The story was also in error in asserting that “prohibiting most abortions 20 weeks after fertilization would run counter to the Supreme Court’s standard of fetal viability.” The court has said that women have a right to an abortion until the fetus is viable outside the womb; however, the court has not said that viability occurs “22 to 24 weeks after fertilization,” but rather, exists when the fetus is “potentially able to live outside the mother’s womb, albeit with artificial aid.” A Times story titled “Premature Babies May Survive at 22 Weeks if Treated, Study Finds,” by Pam Belluck (May 6), summarized findings of a study in the New England Journal of Medicine which found that about one-fourth of premature infants born at 22 weeks of pregnancy (20 weeks post-fertilization) survive long term if given “active” assistance.
In the top upper-left corner of the daily front page of the New York Times appears that newspaper’s slogan: “All the news that’s fit to print.” I respectfully submit that the motto should be revised to read, “The news — fit to our preconceptions.”