The Right To Birth: Abortion Law's Ethical Dilemma

The topic of abortion has been a highly debated issue in the United States, with laws and public opinions varying across states. While some states have imposed bans on abortions after a certain gestational period, others have implemented laws that allow abortions without restrictions up to the point of birth. The debate surrounding abortion often centres around the question of when a fetus can be considered a person with legal rights, and whether the procedure is necessary to protect the life or health of the pregnant individual. In recent years, there has been a push for more restrictive abortion laws, with 14 states currently banning abortion at any stage of pregnancy and 11 others implementing gestational limits. On the other hand, six states and Washington, D.C., impose no term restrictions on abortions. The discussion on abortion is often fraught with misinformation, with claims of abortions occurring moments before birth or even after birth, which medical experts have deemed false and illegal in the United States.

Partial-birth abortion

The PBA procedure has been banned by the US Supreme Court, which upheld a federal law passed by Congress in 2003. The Supreme Court's decision was criticised by several organisations, including the American College of Obstetricians and Gynecologists, Planned Parenthood, and the American Civil Liberties Union, as a step towards prohibiting abortion. The court's conservative majority, influenced by the appointment of Samuel Alito by former President George Bush, was seen as a shift from prioritising a woman's health to focusing on the fetus.

The PBA procedure is distinct from the more commonly used dismemberment method, where the mother's cervix is manually dilated to remove the foetus's severed body parts. PBA is also different from another alternative procedure, which involves killing the foetus by injection and inducing labour, a method considered less safe and less commonly used in the US.

The debate around PBA and abortion laws in the US continues to be a highly contested issue, with advocates on both sides presenting strong arguments. While some view PBA as a necessary procedure to protect the health and well-being of the mother, others argue that it crosses a moral and ethical line by ending the life of a partially delivered child.

Born-alive abortion

The "Born-Alive Abortion Survivors Protection Act" is a piece of legislation that has been introduced in the US House of Representatives and Senate, with the stated aim of protecting infants born alive following an attempted abortion. The bill would require healthcare practitioners to provide the same degree of care to infants born alive after an attempted abortion as they would to any other child born alive at the same gestational age. This includes ensuring that the infant is immediately admitted to a hospital. The bill also includes criminal penalties, including fines and up to five years in prison, for healthcare practitioners who fail to provide the required degree of care.

The bill has been a subject of debate between Republicans and Democrats, with Republicans arguing that it is necessary to protect newborn babies and Democrats countering that it is unnecessary and aimed at restricting access to legal abortion. The bill was defeated in the Senate in 2019, with most Democrats voting against it. However, it was reintroduced in 2023 and passed the House, but it is unclear if it became law.

In addition to the federal legislation, some states have also enacted their own born-alive laws. For example, Minnesota enacted the Born-Alive Infants Protection Act in 2015, which required the state to report the number of babies born alive after an attempted abortion and what happened to them. However, this law was repealed in 2023, with supporters of the repeal arguing that it served no purpose other than to make it harder to get an abortion.

The born-alive abortion debate centres around the question of whether additional legislation is needed to protect infants born alive after an attempted abortion. While some argue that it is necessary to ensure these infants receive appropriate medical care and to prevent infanticide, others maintain that existing homicide laws already make it illegal to kill a baby, and that born-alive laws only serve to restrict access to legal abortion.

Late-term abortion

The term "late-term abortion" is not a medically accepted term, and there is no precise definition of when an abortion becomes "late-term". Generally, it refers to abortions obtained at or after 21 weeks, but this is an arbitrary cutoff based on how the CDC collects data on abortions. The American College of Obstetricians and Gynecologists (ACOG) has stated that "late-term abortion" has no medical meaning. The exact point of when an abortion is considered late-term varies across different medical publications, with some sources citing 20 weeks of gestation, and others 28 weeks.

In the US, late-term abortions are sometimes referred to as post-viability abortions, as they are related to the fetus's ability to survive outside the uterus. However, viability is difficult to define precisely and depends on various factors, including gestational age, fetal weight and sex, and available medical interventions. While viability is often presumed at 24 weeks, this can vary depending on the individual pregnancy and the resources available in the hospital where the infant is delivered.

The reasons for late-term abortions include situations where the pregnant woman's health is at risk, or when lethal fetal abnormalities are detected. In some cases, women may not discover their pregnancy until later in the term, or they may face barriers to accessing abortion services earlier in the pregnancy.

The legality of late-term abortions has been a subject of debate and legislative action in the US. While the Supreme Court's decision in Roe v. Wade protected the right to abortion, this decision was overturned in 2022 in Dobbs v. Jackson Women's Health, allowing states to set their own policies on abortion. As a result, 14 states have banned abortion at any stage, and 11 states have gestational limits on abortion. Additionally, 16 states ban abortion at or near "viability", and four states prohibit abortion after a certain number of weeks, usually 22 weeks from the last menstrual period.

The "Born-Alive Abortion Survivors Protection Act", a bill introduced in the US Senate in 2019, sparked further debate on late-term abortions. The bill would have mandated medical providers to resuscitate neonates delivered alive during an abortion process and imposed penalties and jail time for healthcare practitioners who did not provide certain medical care in such cases. However, the bill was defeated in the Senate, with opponents arguing that it was unnecessary and aimed at restricting access to legal abortion.

Viability

Laws surrounding abortion vary from state to state in the US, and many have restrictions in place only at or after viability. More than a dozen states ban abortions after the fetus is considered viable. Some laws that don't specify a limit say it's up to the abortion provider's "judgment" to determine whether a fetus is viable.

The Partial-Birth Abortion Ban Act of 2003 prohibits a procedure in which a physician "delivers a substantial portion of [a] living child outside his mother's body" and then "kills the child". This procedure is considered by Congress to be inhumane and outside the standard of medical care. However, the American College of Obstetricians and Gynecologists (ACOG) has written that "late-term abortion" has no medical meaning.

Abortions at or after 21 weeks are uncommon and represent only 1% of all abortions in the US. They are expensive, often requiring travel and lost wages, and are performed by a small subset of abortion providers. Claims that abortions occur "moments before birth" or even "after birth" are false and do not occur in the US.

State laws

Some states ban abortion at or before 18 weeks of gestation, while others ban it at some point after 18 weeks. The bans are often based on the concept of "viability", a non-medical term used to describe the point at which a foetus can survive outside the uterus, which is generally between 24 and 26 weeks.

Many state abortion bans include exceptions for cases of rape or incest. However, these exceptions are often difficult or impossible to access in practice. For example, in some states, rape victims who want an abortion are required to report their assault to law enforcement first. This can be a significant barrier, as many victims are not capable of immediately reporting their rapes, and may be dealing with shock, stigma, or shame in the aftermath of an attack.

In Iowa, doctors must determine whether a rape is "legitimate" before performing an abortion, which threatens the privacy and intimacy of the patient-doctor relationship. In Idaho, victims are entitled to receive a copy of the police report within 72 hours of making it, but some law enforcement agencies have been found to be non-compliant with this rule.

In addition to state-level bans, there have also been attempts to pass federal legislation related to abortion. In February 2019, the "Born-Alive Abortion Survivors Protection Act" was defeated in the Senate. This bill would have amended the federal criminal code to institute penalties and jail time for healthcare practitioners who don't provide certain medical care in the case of an abortion that results in a child born alive.

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