Privacy

By Claudia Wallis

It is a scene of miracle working repeated often enough in hospitals throughout the country. A tiny human being, weighing merely a pound, enters the world with premature haste. His lungs are too rudimentary to admit vital air, his kidneys too weak to cleanse blood. Neonatologists, nurses and technicians descend, stabilizing his heartbeat and temperature, blanketing him in plastic and whisking him off to the intensive-care unit.

On a nearby corridor, a very different scene unfolds. A woman who is six months pregnant undergoes an abortion. Her decision to end the pregnancy so late most likely involves some kind of tragedy: the child she is carrying is seriously defective or perhaps she has learned that she has cancer and requires immediate treatment that would poison her child. Whatever the reason, the aborted fetus is just a few weeks younger than the preemie staffers are furiously working to save.

The juxtaposition of these two images has long preoccupied people on both sides of the abortion debate. If medicine can save the life of an immature fetus, how can society allow the termination of an advanced pregnancy? When does the constitutional obligation to protect a potential citizen begin? How are the fetus' interests weighed against the mother's right to liberty and privacy?

The U.S. Supreme Court attempted to address these questions in its landmark Roe v. Wade decision of 1973. The court's solution rested on the concept of viability, defined as the time the fetus is "potentially able to live outside the mother's womb albeit with artificial aid." Until that point, said the majority, a woman's decision to terminate a pregnancy was guaranteed by the privacy rights implicit in the 14th Amendment, which has been interpreted to include personal rights relating to marriage, procreation and contraception. But once viability occurs, the court ruled, a state may limit or proscribe abortion in the interest of preserving new life. The pivotal moment, according to Roe, is usually placed at about 28 weeks, or the end of the second trimester.

In reality, things have never been so clear-cut. Medical advances have enabled increasing numbers of babies as young as 24 weeks to survive. Indeed, the framework of Roe v. Wade makes jurisprudence dependent on technological developments. If the moment of viability is pushed back much further toward conception, the state's right to limit abortions will gradually increase. The Roe decision, concluded Justice Sandra Day O'Connor in a 1983 opinion on an abortion-related case, is "on a collision course with itself."

Right-to-Lifers have latched onto this argument as a principal weapon in their war to overturn Roe v. Wade. Given the uncertainty of the viability standard, they claim, potential life should be recognized from conception. They point to medical technologies such as sonography and fetal-heart monitoring that have literally raised the visibility of the unborn well before viability. "It's now common for young couples to see their ((unborn)) little baby moving around, sucking his thumb," says John Willke, president of the National Right to Life Committee.

Even so, abortion advocates and most doctors argue that the viability debate is still largely academic. "The fact is that the threshold of viability is not that much different from what it was at the time of Roe v. Wade," says Dr. Alan Fleischman, director of neonatology at New York City's Montefiore Medical Center. "There is a biological limit to what we can do." Even at the most sophisticated hospitals, babies born before the 24th week of gestation or weighing less than 500 g (1.1 lb.) have virtually no chance of survival. Meanwhile, fewer than 1% of the 1.5 million abortions performed in the U.S. each year occur after the first 20 weeks of pregnancy. Unless there are major technological breakthroughs, concludes Janet Benshoof, director of the Reproductive Freedom Project of the American Civil Liberties Union, "there is no 'collision course.' "

Not yet anyway. Benshoof concedes that development of an artificial womb could change the picture. A handful of U.S. medical centers now use a constellation of devices that can assume some heart, lung, kidney and even digestive functions for full-term babies born with certain problems. Because the machines require the use of anticoagulants, they do not work for most preemies, who risk brain hemorrhages if given such drugs. But should technology leap this hurdle, it could reduce the viability standard to an absurdity. Asks David Rothman, professor of social medicine at the Columbia College of Physicians and Surgeons: "Are we then going to say to women, 'Either you keep the fetus inside of you, or we'll take it out and keep it alive ourselves'?"

Both sides in the bitter abortion dispute agree that a technology-dependent viability standard provides a weak foundation for constitutional rights. A new Reagan appointee to replace Justice Lewis Powell could tip the court majority. But any effort to find a new basis for the nation's abortion law would have to reckon with the essentially irresolvable conflict between society's obligation to protect a newly independent life and the mother's right to privacy.

With reporting by Christine Gorman/New York