The New England Journal of Medicine (NEJM) reported May 7 that with aggressive treatment a quarter of premature infants now born at 22 weeks (i.e., five months) survive. This is good news: Medical research and scientific advances increasingly are making it possible to save the lives of preterm infants (www.nejm.org/doi/full/10.1056/NEJMoa1410689).
But reading about the report in the New York Times (www.nytimes.com/2015/05/07/health/premature-babies-22-weeks-viability-study.html) reminded me of the film character Franck Eggelhoffer, who famously said in Father of the Bride, “Every party has a pooper . . . that’s why we invited you.”
The Times saw two problems with the report. One was that such premature infants often suffer long-term health problems. The other was that pushing infant viability back could imperil the touchstone of all freedom, liberty, and decency in the world: Roe v. Wade.
In a widely cited 1970 editorial describing the nation’s shifting moral landscape, California Medicine, the official journal of the California Medical Association, observed that two diametrically opposed ways of looking at life were in contention: the traditional “sanctity of life” ethic and an emerging “quality of life” one. The former, the editors wrote, “has always placed great emphasis on the intrinsic worth and equal value of every human life regardless of its stage or condition.” In order to accommodate the new “quality of life” ethic, they continued, “[i]t will become necessary and acceptable to place relative rather than absolute values on such things as human lives, the use of scarce resources and the various elements which are to make up the quality of life or of living which is to be sought.”
This kind of thinking was especially apparent in many of the Reader’s Comments that accompanied the Times article. Some who espoused the quality-of-life ethic suggested that it was in the best interest of the premature child to “go gentle into that good night.” Others were baldly utilitarian: The cost of providing aggressive treatment to children who might remain permanently less-than-fully-healthy was simply not a good investment of society’s resources.
Children born at 22 weeks will indeed have problems. In the ordinary path of human development, 40 weeks of intrauterine gestation is optimal. To pare that almost in half inherently means that the child is not going to be fully mature, i.e., he or she will be premature.
Medical workers who consider it their task to save lives will recognize and accept the challenge to protect these preemies and to provide, as far as possible, for healthy outcomes. The fact that survival rates for premature babies are now nearing the midpoint of pregnancy attests to what medical research and technology have accomplished in the four decades since Harry Blackmun, author of the majority ruling in Roe v. Wade, opined that viability probably occurred at 28 weeks—six weeks later than some babies today are surviving outside the womb.
But not all the doctors quoted in the Times article supported attempts to save the lives of infants born at 22 weeks—the line where survival becomes questionable. The NEJM study, the Times reported, “found that hospitals with sophisticated neonatal units varied widely in their approach to 22-week-olds, ranging from a few that offer no active medical treatment to a handful that assertively treat most cases.”
Matthew Rysavy, a medical student at the University of Iowa and one of the study’s two leaders, told the Times that “We can’t really say whether the differences [in treatment rates] revolve around differences in values, that for some physicians and parents the risk of impairment might outweigh the decision for treatment.” His partner, Dr. Edward Bell, a pediatrics professor at the University, said he thinks 22 weeks is “a new marker of viability,” even though “this is a pretty controversial area . . . I guess we would say that these babies deserve a chance.”
The Times article doesn’t consider whether refusing treatment necessary for a premature infant’s survival due to a present or anticipated “impairment” would in fact be discriminating on the basis of a pre-existing or a possible disability. Once upon a time, our government aggressively opposed such discrimination, but enforcement is in my view currently unlikely. The rationale for government action is not, as one commenter claimed, to get “politicians involved.” In a society where rights—first and foremost the right to membership in the society itself—are based on rule-of-law decisions, a person’s survival cannot be left to familial caprice. If it were, society could not punish parental negligence when it came to providing medical care for a child. Let us hope we have progressed beyond the Roman patria potestas.
The other “bad news” in the story for the Times is that the regression of viability imperils the abortion liberty guaranteed by Roe. As previously noted, current science has established that viability occurs several weeks earlier than Justice Blackmun stipulated. Back in 1983, Sandra Day O’Connor recognized that this regression would put Roe “on a collision course with itself.” Justice O’Connor subsequently sought to rescue Roe from such a fate in her 1992 Casey opinion. But any decision that reckons with viability—something American law cannot avoid as long as the ability to survive past the moment of “birth” invests the infant with rights—is always going to be at an uneasy peace with scientific advance.
There may be ways of evading the implications of that collision course. Limiting the right to spend one’s own money on medical care—a feature of most socialized medical schemes—is one of them. Others include making allocation of medical resources dependent on committee decisions; encouraging district attorneys to be derelict in their duty to intervene on behalf of premature infants; denying guardians ad litem access and ridiculing them in public.
Ultimately, the “best” way to avoid the collision with viability would be to embrace fully the quality-of-life ethic California Medicine anticipated 45 years ago. The notorious 2012 Minerva-Giubilini Journal of Medical Ethics article collapsing the distinction between abortion and infanticide (i.e., justifying post- as well as prenatal homicide) is a harbinger of bioethical battles to come. One Reader Comment illustrated this succinctly: “Viability should be determined by the ability to survive with a blanket for warmth and a teat for sustenance. Access to a Category IV neonate unit is not survival outside the womb; it is survival in an artificial womb.” Of course “viability” then becomes simply meaningless; on those terms, even sick or disabled full-term newborns could be justifiably abandoned.
Finally, the Times article omits one other aspect of the viability debate now threatening the Reign of Roe: fetal pain. The recent flurry of State legislation banning dismemberment abortions generally set the term for the prohibition at 20 weeks. The recently vetoed Montana bill, which would have established a State default policy to anesthetize an unborn child about to be aborted (unless his mother objected), set that requirement at 20 weeks. The federal “Pain-Capable Unborn Child Protection Act” (HR 36), passed by the House on May 13th, also contains a 20-week threshold.
The fact that an unborn child is already pain-sensitive at 20 weeks, and the progress of neonatal medicine making his or her survival at 22 weeks increasingly likely, are twin pincers squeezing Roe’s nostrums about viability and challenging its central holding. Because if this “blob of tissue” feels pain and that “mass of cells” can survive birth, then maybe they’re not just masses of cells and blobs of tissue, but human beings deserving of protection. Such recognition would constitute a significant challenge to the Court’s authority—and be very bad news for party poopers at the New York Times.
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John M. Grondelski (Ph.D., Fordham) is former associate dean of the School of Theology, Seton Hall University, South Orange, NJ.