The House Subcommittee on the Constitution held a mark-up hearing this week on a bill that would ban abortions during the final four months of pregnancy with exceptions for when the life and physical health of the mother is at risk. To the “millions of women who value their personal autonomy,” said Rep. Jerrold Nadler of New York, the subcommittee's ranking Democrat, this bill looks “like just another battle in the perpetual Republican war on women.”
During the hearing, Nadler called the bill "facially unconstitutional" because he said it would ban abortions prior to viability, the point at which a baby can survive long-term outside the womb, and the point at which the Supreme Court has ruled abortion bans may be enacted.
But medical studies show that Nadler is factually wrong: Some babies born 20 weeks after conception--the point at which the bill would ban most abortions--can survive long-term outside the womb. "In June 2009, the Journal of the American Medical Association reported a Swedish series of over 300,000 infants," Dr. Colleen Malloy testified before Congress in 2012. "Survival to one year of life of live born infants at 20, 21, 22, 23, and 24 weeks postfertilization age was 10%, 53%, 67%, 82%, and 85%, respectively."
Nadler's factual error was partly to blame on his misreading the bill under consideration in the House. Nadler said that the federal bill banned abortions at the same point in pregnancy as did an Arizona law recently struck down by the liberal 9th Circuit Court of Appeals for banning abortions prior to viability.
But as Mother Jones points out, the Arizona law "actually banned abortion 18 weeks after the woman became pregnant," two weeks earlier than the federal bill, a point at which a baby currently has no chance of long-term survival if born. The Arizona law and federal bill use two different (yet equally valid) ways of counting gestation. The Arizona law begins counting from the day of a mother's last menstrual period, whereas the federal bill begins counting the age of the baby two weeks later, when a child is actually conceived.
Of course, even accounting for this discrepancy, Nadler still said that viability begins two weeks later than it actually does. (Nadler isn't alone in making unscientific claims about viability. Slate's William Saletan recently said that "the mere expulsion of the fetus--even at 21, 22, or even 23 weeks--is itself fatal. That fetus is not prepared to survive outside the womb.")
Following Tuesday's congressional hearing, I asked Nadler about medical studies showing that viability begins at 20 weeks after conception. "Eventually it may be possible to take a fertilized egg and never implant it in the womb and do it entirely artificially. I think what [Supreme Court justices] mean by viability is naturally viable," Nadler said.
What does it mean to be "naturally" viable? "I don't know. I don't know," Nadler said. "All I'm saying is it's clear the courts have basically said 24 weeks."
What the 1992 plurality opinion in Planned Parenthood v. Casey said is that viability begins at "23 to 24 weeks," which is the equivalent of 21 to 22 weeks after conception. The ruling made no mention of the "natural viability" concept Nadler mentioned. The Casey opinion declared that "there may be some medical developments that affect the precise point of viability." Indeed, in the past 21 years medical developments have moved viability up to 20 weeks post-conception.