Late-Term Abortion Law: Understanding The Complexities And Controversies

Late-term abortion, also known as late termination of pregnancy, is a politically controversial topic that describes the termination of pregnancy by inducing labour during a late stage of gestation. The exact point at which an abortion is considered late-term is not clearly defined, with different medical publications and countries using varying gestational age thresholds. In the context of US law, late-term abortions refer to abortions that occur after the fetus is considered viable, or able to survive outside the uterus. The Supreme Court's ruling in Roe v. Wade gave states the power to individually regulate abortion, with some states implementing bans on abortions before the 24-week mark, which is generally considered the point of viability. The legality and accessibility of late-term abortions vary across different states and countries, with some imposing restrictions or bans, while others allow abortions without any term restrictions.

Late-term abortion definition

Late-term abortion is an imprecise term, and the exact point at which an abortion is considered late-term is not clearly defined. The term is not recognised in medicine, and is instead a political one. Generally, late-term abortions refer to abortions at least in the second trimester of pregnancy, or after 20 weeks of gestation. However, some sources state that late-term abortions refer specifically to abortions in the third trimester, from 27 weeks of gestation to delivery.

Late-term abortions are sometimes referred to as post-viability abortions, as they can refer to abortions after the foetus is viable, or able to survive outside the uterus. The point of viability is not fixed, but is generally considered to be between 24 and 28 weeks after a patient's last menstrual period.

In the United States, more than 90% of abortions occur before the 13th week of pregnancy, 1.3% take place after the 21st week, and less than 1% occur after 24 weeks. Abortions after 21 weeks are rare, and only account for around 1% of all abortions in the US.

Viability and late-term abortions

Late-term abortions are sometimes referred to as post-viability abortions, as they are often related to the viability of the foetus, i.e. the ability of the foetus to survive outside the uterus. However, it is important to note that the exact point when an abortion is considered late-term is not clearly defined and varies across different medical publications and countries. In the context of late-term abortions, viability is generally considered to be between 24 to 28 weeks after a patient's last menstrual period.

In the United States, the Supreme Court's ruling in Roe v. Wade gave states the power to individually regulate abortion or even ban it completely before viability. This has resulted in a variety of gestational limits on abortion across different states. Some states ban abortions at a specific number of weeks, such as 18, 20, or 22 weeks, while others ban abortions in the third trimester, which starts at around 25 weeks. A few states also have laws that do not specify a limit and leave it to the abortion provider's judgment to determine whether a foetus is viable.

The debate around late-term abortions is often centred on the question of foetal viability. There is no sharp limit of development, age, or weight at which a foetus becomes viable. Studies have shown that the chance of survival for a premature foetus varies based on interventions available, as well as the weight and sex of the foetus. For example, a 2015 study found that no infants born at less than 22 weeks survived, even with active treatment. However, an infant born at 21 weeks and one day in 2021 did survive. At 23 weeks, the survival rate without severe impairment is less than 2%, increasing to up to 30% at 25 weeks.

Late-term abortions are highly controversial, with critics arguing that they cross the line from abortion to infanticide. One example is the partial-birth abortion (PBA) procedure, where a substantial portion of the living child is delivered outside the mother's body before being killed. PBA is often used in the middle and last months of pregnancy when dismembering the foetus becomes more difficult due to stronger bones and ligaments. This procedure has been banned in some states, and the Supreme Court has ruled that Congress may ban certain late-term abortion techniques.

In contrast, abortion rights advocates argue that late-term abortions are necessary to protect the health and well-being of the pregnant woman. They contend that abortion bans and restrictions create barriers that lead to later abortions. Additionally, they highlight the lack of consensus on foetal viability and the fact that abortion providers are qualified to make medical judgments about the viability of the foetus.

Partial-birth abortion

The Partial-Birth Abortion Ban Act of 2003 is a United States law that prohibits this procedure, referred to in medical literature as intact dilation and extraction. The Act defines "partial-birth abortion" as:

> "An abortion in which the person performing the abortion, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus."

The Act states that any physician who performs a partial-birth abortion and thereby kills a human fetus can be fined, imprisoned for up to two years, or both. Notably, the Act does not include an exception for the protection of the woman's health, only her life, which has been a point of contention and criticism.

The constitutionality of the Act was challenged and initially deemed unconstitutional by three U.S. district courts due to the omission of a health exception. However, in 2007, the U.S. Supreme Court upheld the Act in a 5-4 decision in Gonzales v. Carhart, finding that the Act sufficiently defined the banned procedure. This decision was considered a significant shift in abortion jurisprudence, with some commentators noting a change in focus from the woman's health to the fetus.

Gestational limits on late-term abortions

Late-term abortion, also known as the "late termination of pregnancy", is a politically charged term that describes the termination of pregnancy by inducing labour during a late stage of gestation. The exact point at which an abortion is considered "late-term" is not clearly defined and varies across different medical publications and countries. In the context of the United States, late-term abortions are sometimes referred to as post-viability abortions, referring to the ability of the fetus to survive outside the uterus.

In the United States, the legality of abortion and the specific gestational limits vary from state to state. As of 2024, 14 states have laws banning abortions starting at fertilization, while six states and Washington, D.C., impose no term restrictions. The majority of states fall somewhere in between, with restrictions starting at various points from six weeks to 24 weeks or the third trimester.

The specific laws and restrictions surrounding late-term abortions have been a subject of debate and conflict in the U.S. courts. While some states, such as Illinois and Wisconsin, have upheld bans on late-term abortions, others, like Nebraska, Arkansas, and Iowa, have had similar bans overturned due to imprecise wording that could lead to the prosecution of doctors performing legally protected procedures.

The debate around late-term abortions is often emotionally charged and influenced by social and religious views. Critics of late-term abortions argue that it crosses the line from abortion to infanticide, especially when referring to procedures like partial-birth abortion (PBA), which involves delivering a substantial portion of the living child before terminating its life. However, it is important to note that late-term abortions are typically sought due to medical concerns, fetal anomalies, or maternal life endangerment, rather than personal choice.

State laws on late-term abortions

The definition of "late-term abortion" is politically and socially contentious. While a "full-term" pregnancy is generally considered to be between 39 and 40 weeks, with "late-term" referring to 41 weeks, anti-abortion activists use the term "late-term abortion" to describe abortions that happen much earlier, at 15 or 20 weeks. This language is intended to confuse, shame, and spread misinformation.

In the United States, the point at which an abortion becomes "late-term" is often related to fetal viability, or the ability of the fetus to survive outside the uterus. However, the exact point of viability is not clearly defined and varies depending on the source. The Supreme Court's ruling overturning Roe v. Wade gave states the power to individually regulate abortion, and many states now have gestational limits on the procedure.

• Six weeks: Florida, South Carolina, and Georgia ban abortions when cardiac activity is detected, which is typically around six weeks.
• 12 weeks: Nebraska and North Carolina ban abortions at the 12-week mark.
• 15 weeks: Arizona and Florida ban abortion at 15 weeks.
• 18 weeks: Utah is the only state with a ban at 18 weeks.
• 20 weeks: Iowa bans abortion starting at 20 weeks post-fertilization.
• 22 weeks: Iowa, Kansas, Ohio, and Wisconsin ban abortions at 22 weeks.
• 24 weeks or later: Four states ban abortions starting at 24 weeks.
• Viability: More than a dozen states ban abortions after the fetus is considered viable. Some laws leave the determination of viability up to the abortion provider's judgment.
• Third trimester: Virginia is the only state that prohibits abortions in the third trimester, which starts at around 25 weeks.
• No limit: Six states and Washington, D.C., do not impose any term restrictions.

It is important to note that most states with restrictions have exceptions, such as to preserve the life or health of the pregnant person, but these exceptions are often narrowly defined.

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