Author's Note: This post was updated at 3:06 pm on June 3rd, to clarify a sentence earlier referring to the third trimester. The sentence now reads "There are different definitions of what constitutes a "late term abortion," but most definitions refer to abortions at or after 24 weeks or in the third trimester."
In all the extensive coverage of the assassination in his church of Dr. George Tiller by a murderer affiliated with extremist right-wing groups, little has been said to shed light on what late-term abortions are, who has them and why.
Instead, much of the media and talking heads pontificating on this subject have constantly focused on Tiller's being "one of the very few doctors who perform late-term abortions," without providing any context as to why he did so and under what circumstances.
As a result, the dominant narrative is one which perpetuates an assumption that people are electing to have late-term abortions for the sake of convenience. This public perception is shaped by the constant intonement that Tiller was "killing babies" coming from irresponsible journalistic hacks like Bill O'Reilly, the suggestions by Chris Matthews [15] that women are blithely electing to abort fetuses that are viable outside the womb, and the statements of inconsistent moralizers like Will Saletan [15] that "there are cases where there's no real medical situation other than some teenager in denial and it went on for five months [where the argument is] you should make an exception because of the so-called mental health of the girl."
The narrative is one in which women are shamed for choosing abortion, no matter the circumstances, and in which Dr. Tiller is portrayed even indirectly as a despicable aide in their shame.
This narrative is so pervasive that even among those who consider themselves pro-choice, many people are left to wonder: Are these women just waking up one day, deciding over coffee they are tired of being pregnant, and opting for an abortion at 24 weeks? Are there a lot of third trimester abortions? Are they just, as Chris Matthews likes to call them, "elective procedures?"
In fact, in the past two days I have found the misunderstanding about late-term abortion to be widespread even among many of those in the public health advocacy community.
So here are some facts:
Late-term abortions are very rare. About one percent of all abortions performed in the United States occur after 21 weeks [16]. There are different definitions of what constitutes a "late term abortion," but most definitions refer to abortions at or after 24 weeks or in the third trimester.
Late-term abortions are severely restricted by law.
In 1973, the U.S. Supreme Court ruled that the constitutional right to privacy extends to the decision of a woman, in consultation with her physician, to terminate a pregnancy.
The Court also determined, however, that this right is not absolute and it must be balanced against the state's legitimate interest in protecting both the health of the pregnant woman and the developing human life. Therefore, according to Roe, the state's interest in protecting potential life becomes compelling at the point of fetal viability (when the fetus has the capacity for sustained survival outside the uterus). States are allowed to, and indeed have, severely restricted access to abortion in the third-trimester, except, as the Supreme Court has ruled, when necessary to preserve the woman's life or health. In subsequent cases, the Court made clear that viability is a medical determination, which varies with each pregnancy, and that it is the responsibility of the attending physician to make that determination.
As the Guttmacher Institute points out in a brief [17] on this issue, the Supreme Court has held that:
- even after fetal viability, states may not prohibit abortions “necessary to preserve the life or health of the mother;”
- “health” in this context includes both physical and mental health;
- only the physician, in the course of evaluating the specific circumstances of an individual case, can define what constitutes “health” and when a fetus is viable; and
- states cannot require additional physicians to confirm the physician’s judgment that the woman’s life or health is at risk.
What is viability?
Viability is a medical, not a legal definition.
As pointed out in another excellent brief [18] by Planned Parenthood Affiliates of California:
A fetus is viable when it reaches an "anatomical threshold" when critical organs, such as the lungs and kidneys, can sustain independent life. Until the air sacs are mature enough to permit gases to pass into and out of the bloodstream, which is extremely unlikely until at least 23 weeks gestation (from last menstrual period), a fetus cannot be sustained even with a respirator, which can force air into the lungs but cannot pass gas from the lungs into the bloodstream.
The brief continues by underscoring that:
While medical advances have increased the survival of infants born between 24 and 28 weeks of gestation, the point of viability has moved little over the past decade; at the earliest, it remains at approximately 24 weeks, where it was when the Supreme Court decided Roe -- a fact acknowledged by the court in its recent decision in PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY. A study of infant survival by researchers at Case Western Reserve University Medical School found that the rate of survival for infants born before 25 weeks gestation has not improved appreciably in recent years.
Most states restrict late-term abortions.
The Guttmacher brief notes that:
- 37 states prohibit some abortions after a certain point in pregnancy.
- 24 states initiate prohibitions at fetal viability.
- 5 states initiate prohibitions in the third trimester.
- 8 states initiate prohibitions after a certain number of weeks, generally 24.
The circumstances under which procedures are permitted after that point vary from state to state. For example:
- 29 states permit abortions to preserve the life or health of the woman;
- 4 states permit abortions to save the life or health of the woman, but use a narrow definition of health;
- 4 states permit abortions only to save the life of the woman.
Some states require the involvement of a second physician when a later-term abortion is performed. Nine states require that a second physician attend in order to treat a fetus if it is born alive. Ten states require that a second physician certify that the abortion is medically necessary.
Kansas law is strict on the issue of late-term abortions.
Kansas law requires that such procedures can only be performed after viability if two independent doctors agree that not to do so would put the mother at risk of irreparable harm by giving birth.
A huge gap in the narrative.
There is a vast gap between the descriptions of Dr. Tiller by members of the extremist right -- who incite lunatics to violence by protraying Tiller as a mass murderer -- and the many women and men who have been served by Dr. Tiller, who refer to him as heroic, kind, compassionate, professional. This gap speaks to the fact that very few--not least the mainstream media--understand what he was doing and, and more to the point, why we are asking the wrong people to comment.
In the words of one of the hundreds of people writing messages on the memorial website to Dr. Tiller:
Dr. Tiller was a hero, plain and simple. I am thankful for his life and the gift of high quality health care he provided his patients. My thoughts are with his family, friends and community and my thanks to you for your support of Dr. Tiller despite the tough cirumstances.
Dr. Tiller was one of the few doctors providing late-term abortions to people in need in part because he was a commited, ethical, moral medical professional who took seriously his oath to serve the best interests of his patients, and because he was dedicated to supporting women's rights even at the risk of his own life and even under unimaginable daily pressure and threat.
Another poster on his memorial site states:
I think this is an absolute outrage, George Tiller was the only one I had to turn too during an awful moment in my life. He gave my life back and the choice I had to make was painful, personal, and heartwrenching. God bless his family, the church, and everyone who is hurt by this violent act.
He also was one of the few because laws in many places restrict women's access, and because fewer and fewer doctors are trained in these life-saving operations, due to the actions of the far right. Many doctors from out of state referred patients to Dr. Tiller and many revered him.
If you listen to the voices of women served, you understand far more than what the media has told us about who chooses late-term abortion and why.
For these women and their partners, Tiller was not "an abortionist" but a life-saver. He was a man who put himself in jeopardy to ensure that a woman would not have to lose her life to infection or complications in an already-doomed pregnancy. He was a doctor who ensured that women carrying a fetus with fatal or catastrophic abnormalities could make the decision--if they so chose--to spare themselves and their families the agony of watching a newborn that could not live endure countless operations and medical procedures in futile attempts to keep it "alive."
A 2006 amicus brief [19] prepared for Gonzales v. Planned Parenthood Federation of America, a case focused on the availability of second trimester abortions, contains a number of stories of women who had to seek out later-term abortions, such as that of Carrie, a 40-year-old woman from the Southwest who was happily married for nine years when she became pregnant. She described the timing of her genetic testing and decision to end her pregnancy:
On November 11, 2005, I elected to have [a] CVS test. . . . Then, the test results came in. . . . We knew chromosome 14 was incompatible with life, and chromosome 22 could mean Cat Eye Syndrome. Both my husband and I wanted the baby very much, and neither one of us was willing to terminate the pregnancy on a “maybe.” . . .
I had the amnio on 12/26/05, and the results came in on Jan. 13, 2006. It confirmed without doubt – she had Cat Eye Syndrome tetrasomy in every cell of her body. The last 3 sonograms showed . . . our baby’s kidneys were beginning to malfunction. . . .We made this decision because we loved our daughter so much. We didn’t want her to suffer the definite and the untold problems she was sure to endure, if she even made it. We made the best decision we could with the information we
had. We fought for her. We wanted her. But we didn’t want to condem[n] her to [a] life of agony.
Or that of Cara, a married Catholic woman with an almost-three-year-old son, who had “always dreamed of having a big family.” She described the time it took to obtain information needed about her pregnancy:
I was about 17 weeks pregnant at the time. . . .[T]hey scheduled us for our Level II ultrasound a few weeks early so they could look in more detail at the baby. . . . A few days [after the ultrasound], we received the news that would change our lives forever. Our son was infected with CMV (cytomegalovirus). This was the worst possible scenario (of the possibilities we were given). . . . Although I have always been pro-choice, I had winced at the thought of late-term abortions or "partial birth” abortions, thinking that it was just inhumane or irresponsible. Now I know differently. In my case, we were not able to confirm our diagnosis until 19 or 20 weeks gestation. I terminated at 22 weeks. . . . I was completely heartbroken. . . .
Numerous other such stories are contained in this brief.
Authors on RH Reality Check, such as Lynda Waddington [20] and Susan Ito [21], have shared their stories about late-term abortion and the excruciatingly difficult decisions they had to make.
Others have written at length about their experiences of finding their wanted pregnancies were doomed to fail, of facing their own possible death in carrying to term, and leaving their children without a parent.A collection of "Kansas Stories" [22] can be found, for example, on the site, A Heartbreaking Choice, such as that by Nicholas' Mom [23], by K.M. [24], and by several others...parents who looked forward to bringing a child into their family but were faced with fetal deformities so severe their child either would not survive pregnancy, would be born only to die, or in which carrying the pregnancy to term would threaten survival of the mother. Other stories are being collected here on RH Reality Check [25], Facebook, on a website memorial to Dr. Tiller and elsewhere.
None of these women made their choices lightly and it is profoundly disrespectful of them--indeed it is dangerous to women--to suggest otherwise for political gain, not to mention commit the horrific acts of violence against providers such as Dr. Tiller who help so many women and men through this agony.
What can you do?
Obviously in this climate, constant political vigilance is needed against the erosion of women's rights in law and in policy, and against the public narrative that shames women and providers, as well as against the actions of the extremist right that daily puts them at risk. This will be increasingly true in the coming months.
More immediately, in honor of Dr. Tiller and the patients he and other providers serve, we are also providing the following links to funds already set up to receive donations in his name. We urge you to consider giving as much as you can.
Two of the funds available in memory of Dr. Tiller include:
George Tiller Memorial Abortion Fund
c/o National Network of Abortion Funds
42 Seaverns Ave.
Boston, MA 02130
Or you may donate to the Tiller Memorial Fund at NNAF online. [26]
The Women's Reproductive Rights Assistance Project is also accepting donations in Dr. Tiller's name [27].
Follow Jodi Jacobson on Twitter, @jljacobson [28]