Pondering the abortion ban

Something that always bothers me about the abortion debate is the tendency to cast it in black and white terms. Proponents of South Dakota’s new abortion law seem to think abortion is used only for birth control. Opponents tend to focus on rape and incest and the desirability of letting the woman choose whether to continue a resulting pregnancy. What tends to be overlooked are the gray areas.

Gray areas often come from “what ifs.” Does or should changing this or that fact in any particular situation affect the handling and outcome? There’s plenty of what ifs in the abortion law. Here’s a couple that come to mind:

Item one: The law’s “findings” state that “life begins at the time of conception” and the statute defines an “unborn human being” to exist from the moment sperm penetrates the ovum. Assume a married couple goes to a fertility clinic and, as is common, multiple embryos are created. Those embryos not used in the first fertilization attempt are placed in cyropreservation. That first procedure is successful. Under the statute, the remaining embryos are an “unborn human being.” At the same time, the statute appears to only prohibit procedures performed on a pregnant woman. As none of the embryos have been implanted, does the statute protect the embryos if mom and dad decide they should be destroyed?

Item two: The only exception to the law is “to prevent the death of a pregnant mother,” with the physician being required to make reasonable efforts “to preserve both the life of the mother and the life of her unborn child.” Assume a woman two months pregnant is diagnosed with cancer. There is a 90 percent survival rate if she immediately begins a course of radiation or chemotherapy. The survival rate drops to 50 percent if she carries the fetus to term. There is a 100 percent chance either treatment will cause irreversible and potentially fatal damage to the fetus. Does the exception allow mom a choice here? Or does the fact she still has a 50-50 chance if she carries the baby to term mean only the “health” of the mother is endangered, an exception the South Dakota Legislature specifically rejected? Where is the dividing line between acting to protect the health of the mother and acting to prevent her death? Is it when the chances of survival drop to 40 percent, 25 percent or 10 percent?

Item three: A far more common variation of the prior scenario would be an ectopic pregnancy, where a fertilized egg implants somewhere other than the uterus (e.g., the fallopian tubes). Because it is impossible for an ectopic pregnancy to go to term, the only treatment is terminating the pregnancy. Since a fertilized egg is, by definition, an “unborn human being” does the sole exception to the statute forbid surgical or nonsurgical medical treatment that would terminate the pregnancy if mom’s life is not at risk? Must a doctor wait until mom is in danger of dying before embarking on treatment? Must death be imminent, likely or only a possibility?

Item four: Prenatal tests reveal the fetus has anencephaly, a condition in one out of 1,000 live births. A fetus with this condition never gains consciousness and, if not stillborn, usually dies within a few hours or days after birth. The law apparently would require mom to carry the fetus to term because there is, by definition, an unborn human being and the condition does not pose a risk of death to mom. I know a woman who faced this situation a few years ago. She and her husband decided to carry the pregnancy to term. The baby — which would have been their first — was stillborn. No one would wish that situation on anyone. There is no good answer and it would be difficult to criticize them for whatever decision they made. But the key is my friend and her husband were allowed to decide themselves, something the new law would forbid.

Situations like these are what make my state’s actions so disconcerting. No one wants to face these issues in their own life. Unfortunately, the rhetoric that has surrounded this legislation too often ignores those who do and the law plainly does so.

[A]bortion raises moral and spiritual questions over which honorable persons can disagree sincerely and profoundly. But those disagreements did not then and do not now relieve us of our duty to apply the Constitution faithfully.

Thornburgh v. American College of Obstetricians, 476 U.S. 747, 772 (1986)

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