By Dave Andrusko
Surprise, surprise, am I surprised. As our readers know, at the center of Mississippi’s Gestational Age Act, which protects unborn babies after 15 weeks, is the moving target of “viability.” The Supreme Court heard oral arguments on HB1510 back on December 1.
And, as hard as it is to believe, a habitual cheerleader for abortion, the Washington Post, ran a thoroughly sympathetic story today under the headline “Medical advances saving premature babies pose thorny issues for abortion rights advocates.”
Former Supreme Court Justice Sandra Day O’Connor anticipated these “thorny issues” back in her 1983 Akron dissent. She wrote, “The Roe framework is clearly on a collision course with itself . . . As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”
Ariana Eunjung Cha’s engaging essay begins with the story of Kourtney Vier and her very premature baby boy, Zeke. The first hospital would not accept her (she “had just crossed the line between her 22nd and 23rd week of pregnancy”) but the University of Iowa, which specializes in delivering very premature babies, did.
“It was at 10:30 p.m. at 22 weeks and six days, when the baby would no longer wait,” Ariana Eunjung Cha reported, “Two hours later, on May 14, Zeke Vier was born.”
According to Cha, “The antiabortion movement is harnessing advances in neonatology to suggest that the notion of viability laid out in Roe v. Wade, the U.S. Supreme Court’s 1973 ruling establishing a constitutional right to abortion, will soon be obsolete as a matter of science and of law.”
The greatly improved chances for survival for extremely premature babies was not the product of a single gigantic leap forward, but incremental improvement. Whereas once relatively few hospitals would give aggressive care to babies under 24 weeks, “A growing number are offering aggressive treatment to babies in that difficult 22- to 23-week ‘gray zone,’ — or even younger — resulting in an estimated 5,000 extremely premature babies born each year.”
Eventually, the medical establishment took notice, and updated their protocols. “A consensus statement updated in 2019 by the American College of Obstetricians and Gynecologists and the Society for Maternal-Fetal Medicine describes borderline viability as 20 weeks to 25 weeks and six days,” according to Cha. “Instead of offering specific guidelines, the medical groups note that when “delivery is anticipated near the limit of viability, families and health care teams are faced with complex and ethically challenging decisions.”
Then in September, “the American College of Obstetricians and Gynecologists took a major step recognizing that the viability threshold is moving by recommending that doctors consider giving steroids to a pregnant person at 22 weeks, if premature birth appears likely.”
Not perfect, but a major step forward.
“Viability” is not only a moving target, but incoherent as a standard for when abortion is “permissible.” We can hope the Supreme Court sees that inconsistency as well.