The New England Journal of Medicine had a glimmer of good news this month for parents confronted with the heartbreak of an extremely premature birth: A tiny minority of infants born at 22 weeks can survive with intensive medical intervention.
While the study doesn’t contain major revelations—the American College of Obstetricians and Gynecologists has pointed to studies dating back more than a decade that reached similar conclusions, and the most recent study represents hospitals with highly sophisticated neonatal units—it does illustrate vital advances in reproductive and neonatal health care. For parents of extreme preemies, those scientific developments may mean the difference between lost hope and a blessed outcome.
But I knew the story would not end there.
Sure enough, like clockwork, the study was appropriated as political fodder by those who seek to ban safe and legal abortion. And as a lawyer and reproductive rights advocate, I’m now being asked if I’m concerned the study will upend the constitutional protections of Roe v. Wade.
The simple and perhaps surprising answer is: No.
The Supreme Court’s legal reasoning in its long history of decisions on abortion rights anticipated such medical developments. And the Court’s rulings share the same inescapable fact and inescapable implication as this new study: Every pregnancy is unique and shaped by a multitude of extremely complex circumstances, and decisions surrounding each pregnancy must be left to each individual woman and the health care professionals she has chosen to provide counsel and care.
When women are faced with premature birth and the fact that the vast majority of 22-week-old babies do not survive even with intensive treatment, the circumstances under which parents’ hope for survival may be realized and when it cannot will continue to be based on highly individualized decisions about the baby’s development, the family’s preference, their doctors’ advice, and the hospital’s capabilities, practices, and policies.
That is as it should be. There is no single approach that works under all circumstances. No two pregnancies, medical situations, or families’ perspectives are the same.
Further, the Supreme Court has rejected any one-size-fits-all approach with respect to the intimate personal decision about ending a pregnancy. The Court has recognized and respected the legitimate range of individual values and beliefs concerning the meaning of procreation and human responsibility for it. It has rejected a fixed gestational age at which abortion may be banned and established that line at viability, understanding that scientific developments may move that line earlier in pregnancy. The Court also has made clear that even after viability a women must be allowed access to an abortion when her pregnancy endangers her life or health. Because every pregnancy is different, and every woman’s circumstance is different, making a blanket rule unacceptable.
I am frequently reminded of the wisdom of recognizing the highly individualized nature of pregnancy, and entrusting decisions to the individuals most affected. Women—and men—often share their stories with me. In just one recent example, a friend and her husband experienced the emotional rollercoaster of troubling news during a sonogram at 20 weeks, followed by further genetic testing, and then another devastating sonogram. After adjusting to each piece of news with a commitment to go forward with the pregnancy, they eventually came to the decision to end it.
They needed family support, good medical care, time to mourn, and each other. What they didn’t need was a politician’s view on the matter.
The highly personal decisions of reproduction cannot be reduced to black and white. When should aggressive medical intervention be undertaken for an extremely premature baby and when should nature be allowed to take its course? When should a pregnancy go forward and when should it be ended? To what extent should a mother risk her life and health in childbearing and delivery? How far should a couple go to conceive a child on the spectrum from simple forms of assisted reproductive technology to the use of a surrogate carrier?
There are no easy answers. In all of these decisions, no matter which path is chosen, there is the possibility of human suffering. Which path to take will heavily depend on matters of personal belief and family circumstances. In the end of the day, it is the promise of our Constitution that individuals are in the best position to make these decisions.
I don’t know whether someday one of my children will be a parent standing prayerfully over a neonatal incubator or stunned when a sonogram brings bad news. What I want for them—and for everyone—is the ability to make the important decisions about their lives and their families for themselves.
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