When Is A Fetus Viable? The Supreme Court Has Upheld A Missouri Law That Says A Woman 20 Weeks Pregnant Or More Must Be Tested Before An Abortion To See If The Fetus Can Survive Outside The Womb. But, Medical Experts Say, No 20-week Fetus Can Live. So What Purpose Does The Testing Serve?

Posted: July 16, 1989

Their numbers alone seemed impressive - 885 law professors and 167 scientists and physicians, including 11 winners of the Nobel Prize. They were out to show the U.S. Supreme Court that it was senseless to curb the rights of women who were seeking abortions in the second trimester of pregnancy.

In legal briefs filed March 30, they implored the judges to overturn an anti-abortion law enacted three years ago in Missouri. This law requires that Missouri doctors, before performing abortions on women 20 weeks pregnant or more, must first conduct tests to determine whether the fetuses could survive outside the womb. No "viable" fetus can be legally aborted in Missouri.

The scholars and scientists pointed out that these "fetal viability" tests were, by definition, a waste of time - because no human fetus is mature enough to survive at 20 weeks. In fact, few have survived even at 24 weeks. Furthermore, they said, nobody has the technology to lower the age of viability below 24 weeks. And any hope for such technology, they said, "is pure science fiction."

The high court listened to all that, and, in effect, said: "So what?"

On July 3, the court, in its most pivotal abortion decision since Roe v. Wade, voted 5-4 to uphold the law requiring fetal testing - thus sanctioning new state roadblocks for women seeking second-trimester abortions, and foreshadowing a broader assault on abortion rights in the years ahead.

Most immediately, however, the ruling in Webster v. Reproductive Health Services has focused attention on the tests themselves, on the role of doctors, and, above all, on the women in Missouri who now must submit to such tests - and face possible health risks, not to mention higher medical costs - before a decision can be made about their pregnancies.


In a sense, fetal testing is peripheral to the abortion debate; only one percent of all abortions are performed after 20 weeks. Newly released figures

from the federal Centers for Disease Control reveal that in 1985, the last year for which numbers are available, 13,280 abortions - out of 1.3 million nationwide - occurred after the 20th week. In New Jersey two years ago, only 49 of 33,395 abortions were performed after 20 weeks; that year in Pennsylvania, which records late abortions beginning at 18 weeks, the total was 148 out of 51,630.

The anti-abortion movement has long recognized that the specter of viable fetuses being aborted packs an emotional punch. Both sides agree that the public becomes increasingly queasy about abortion as pregnancy progresses. So second-trimester abortions, few in number but largely protected under the 1973 Roe decision, have become a key battleground.

And today, medical experts predict that, in Missouri, the testing provisions - which were kept in legal limbo until the Webster ruling - will fall heaviest on those groups of women who traditionally have tended to seek abortions during the second trimester. They include:

* Low-income women, who often can't raise the necessary money in time for a first-trimester abortion. Missouri, like most states, won't fund abortions through Medicaid.

* Women, usually over the age of 35, who learn through amniocentesis tests that their babies will be born with Down's syndrome or other abnormalities.

* Teenagers who need time to raise the money, or who can't act quickly

because of parental consent requirements, or who simply deny their predicament until their bodies make it impossible to deny any longer. Nationally, young women 15 to 19 comprise the largest group seeking abortions after the 20th week, 36.7 percent of the total.

Also affected, of course, are Missouri doctors, who are required by the state law to perform "such medical examinations and tests as are necessary" to determine the age, weight and lung maturity of the fetus, and to "enter such findings . . . in the medical records of the mother."

"The court has made a serious error," says David Grimes, former senior surgeon for the U.S. Public Health Service, now an obstetrics professor at the University of Southern California Medical School, as well as a practicing physician. "They're lawyers trying to practice medicine. These tests are a form of harassment, absolutely useless. As a physician, I'm offended by this invasion into my area of expertise."

Ultrasound tests (which could hike the cost of an abortion by as much as $250) can yield findings on fetal age and weight. But, as Webster court records show, the only known test for lung maturity is amniocentesis, a

procedure that involves sticking a needle into the uterus and has serious health risks such as internal bleeding, ruptured membranes and premature labor. Amniocentesis also adds as much as $450 to the abortion tab, medical experts say. Furthermore, as a lung test, it's not even reliable until the seventh month of pregnancy.


So what worries David Grimes is, in his words, this "very real" Missouri scenario:

A pregnant woman is screened for fetal defects because she is 35. She undergoes amniocentesis in her 17th week, and receives the bad news, typically three or four weeks later, that her baby has Down's syndrome. She wants to have an abortion - but there's a hitch. She's now in her 21st week, and she lives in a state that requires doctors to test for viability. Ultrasound tests prove inconclusive, and the doctors, required by law to perform "necessary" tests for lung maturity, order more amniocentesis.

Test results come back a month later, still inconclusive. Now the woman is in her 25th week, or beyond. It is now so late in her pregnancy that the very option of abortion, for any reason, has become moot. The fetus is potentially

viable. So, she is left with no choice at all; the baby with Down's syndrome will be born.

"This is a typical example of what can happen," says Grimes, "when lay people attempt to dabble in medicine."


Even Antonin Scalia, arguably the most fervent anti-abortion judge on the high court, wasn't persuaded that the tests were useful. He said during oral arguments April 26 that "there is a good deal of evidence that (the lung test) is, number one, useless information, and, number two, very difficult to find without some risk to the pregnant woman."

In defense of the law, William Webster, the Missouri attorney general for whom the case is named, says, "I don't believe the statute requires the physician to perform any tests that would be unnecessary" in the judgment of the doctor. But critics say that Webster is fudging the facts. The statute, they say, is worded in a way that will compel doctors to perform all viability tests, necessary or otherwise, to protect themselves from prosecution.

"As a practical reality," says Philadelphia lawyer Kathryn Kolbert, who attended the oral arguments and helped prepare the pro-choice case against the Missouri law, "no doctor is going to want to rely solely on his own judgment. These tests interfere with the doctor's job to protect his patient's health. What Webster does is open the door to a wider range of local regulations."

In the end, Scalia's skepticism about the tests didn't stop him from upholding the law that required them. In fact, analysts agree that what's most noteworthy about Webster is how the court arrived at its conclusions. The five judges (three of whom were named by President Reagan) didn't contradict the evidence presented by the 885 professors and 167 scientists. In fact, they agreed that the 20-week fetus isn't viable; that the mandated tests would confirm "in many cases" that the fetus isn't viable; and that 24 weeks is ''the earliest point" at which viability may exist.

But their ruling indicated that science was beside the point. The point was to make a value judgment on behalf of the fetus.

Roe had drawn a line, protecting the rights of women up to the point of fetal viability; in Webster, the majority re-crossed this line: "We do not see why the state's interest in protecting human life should come into existence only at the point of viability," but not before it. Therefore, the testing was upheld because it "permissibly furthers the state's interest in protecting potential human life."


If the judges can set aside such irrefutable scientific evidence as irrelevant, say the court's critics, then the forces of retrenchment are truly in ascendance.

Justice Harry Blackmun, architect of the Roe ruling, attacked the tests in his strongly worded dissent, calling them "an arbitrary imposition of discomfort, risk and expense, furthering no discernible interest except to make the procurement of an abortion as arduous and difficult as possible."

"Abortion will be treated differently in the future," says Kathryn Kolbert. "The court majority will give fetal rights more consideration, and will wipe away (a woman's) privacy rights at earlier and earlier stages of pregnancy. . . . They forget that there's a woman involved here, an autonomous person who can make decisions affecting her life and health. To them, it's like the woman is just an incubator for the fetus."

But the scientific evidence on viability was "moot" in Webster, says conservative legal scholar Bruce Fein, who had close ties to Attorney General Edwin Meese 3d during the Reagan years. What mattered, he says, was sending a message: "The court has positioned itself to overrule Roe next year. The focus is now on abortion itself, which is what society ought to be thinking about - the callousness toward human life, discarding the fetus like it's a candy wrapper."


Analysts on both sides of the fetal viability issue have seen this coming for a long time.

After Roe declared in 1973 that a woman's right to choose was protected until fetal viability, which it pegged at 24 to 28 weeks, the anti-abortion forces fired back on two fronts, arguing that viability was an arbitrary standard with no constitutional footing and that states should be allowed to regulate in favor of the fetus at any stage of pregnancy - including the testing of pregnant women at 20 weeks.

The anti-abortionists also argue that, even if one accepts the viability concept, new medical technology will soon make it possible for younger fetuses to survive. This has become a common rallying cry among abortion foes; Gary Bauer, former Reagan domestic policy adviser, says, "The age of viability is getting earlier and earlier."

The first official prognostication on the viability issue was made by Supreme Court Justice Sandra Day O'Connor in an abortion case six years ago. O'Connor, an opponent of abortion, was in the minority then. In a dissent, she wrote that medical advances were pushing viability "further back toward conception," to the point where fetal survival in the first trimester "may be possible in the not too distant future."

However, several of the medical experts cited by O'Connor in that opinion say that she simply misread their work. Arthur Kopelman, head of neonatology at East Carolina School of Medicine, wrote an article that was noted by O'Connor. But, as the court record in Webster indicates, Kopelman believes that O'Connor distorted his views: "My article does not in any way, shape or form support (her) contention."

Top medical experts flatly contradict O'Connor's prediction. A fetal survivability study conducted recently for New York Gov. Mario Cuomo, and cited repeatedly in the Webster record, noted that lung maturity is the most important determinant - specifically, the development of air sacs through which gases are passed to and from the bloodstream. But air sac development doesn't occur until 23 weeks at the very earliest, said the New York report. And by definition, no known technology can accelerate the date at which air sacs begin to form and link up with the crucial blood vessels.

"It's disappointing to see biology become a political football," says Alan Fleischman, chairman of neonatology at Albert Einstein College of Medicine in New York. He also chaired the medical panel that wrote the New York report, and serves on the bioethics committee of the American Academy of Pediatrics. "Webster wasn't even a principled judgment. Because of the powerful forces lobbying against abortion, it was a political decision, not based on science."

Anti-abortion forces respond that the original Roe decision, 16 years ago, was a political one itself. In Roe, Blackmun, seeking to balance fetal and women's rights, chose the idea of viability as a compromise.

"Who cares about the Roe standard?" scoffs Bruce Fein, whose scholarly views were influential inside the Reagan Justice Department. "It was a hollow political compromise, the kind you'd expect out of a legislature. It's just not appropriate for a court."

How widespread viability-testing provisions will become, in the wake of Webster, is anyone's guess. The anti-abortion forces are attempting to promote the Missouri law as a model for other states. And on the technology issue, the critics' message is this: Don't put too much faith in the experts.

"They say technology can't push back viability (toward conception), but that may not be true 10 years from now," insists Fein. "Those views come

from the same kind of 'experts' who used to predict that nuclear power was going to be cheap and that we'd be out of oil by now. I wouldn't put a shred of reliance on their projections."

"The fact that some doctors maintain there is a bottom line in science boggles the mind," says Richard Glasow, education director for the National Right to Life Committee. He acknowledges that 23 to 24 weeks is the viability threshold - for now, anyway. Doctors "are trying to bolster that, and say it is good forever," he says. "It isn't, and the next decade will prove it."

All told, says Fein, testing won't even touch 99 percent of those who seek abortions. "And maybe now this will result in even more first-trimester abortions," he says, if women get the word that there are roadblocks beginning at 20 weeks.

Besides, he says, "if the pro-choice people really feel they have wisdom on their side, they're quite entitled to propose a constitutional amendment (upholding the women's rights granted in Roe). But I don't think they can convince most people that they have a monopoly on wisdom. This debate we're having (nationwide) is all to the good. It causes us to reflect on the vexing questions about human life. It's healthy. It makes us grow as a citizenry."

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