Unconscionable cruelty:
Nebraska’s 20 week law meets the real world

Danielle Deaver in interview on the loss of her baby

Screenshot of ABC News broadcast of interview with Danielle Deaver

“Nebraska’s new abortion law forced Danielle Deaver to live through ten excruciating days, waiting to give birth to a baby that she and her doctors knew would die minutes later, fighting for breath that would not come. And that’s what happened. [After the baby girl was born]… Deaver and her husband Robb watched, held and comforted the baby as it gasped for air, hoping she was not suffering. She died 15 minutes later.”

This deeply sad—and cruel—incident, which occurred several months ago in Nebraska, and was reported recently in the press, is not only an obvious tragedy for the parents involved, but a teachable moment for those who are following the consequences of the latest round of extreme abortion policies put in place by antiabortion legislators. Ms. Deaver was nearly 23 weeks pregnant when she found out she had suffered anhydramnios, a premature rupture of the membranes before a fetus has achieved viability. This diagnosis meant that if she carried to term her baby would almost certainly die in great discomfort shortly after birth.

The Deavers sought an abortion. But Nebraska has recently passed a law that forbids abortions after 20 weeks, on the scientifically disputed ground that 20 weeks marks the point at which fetuses can feel pain. (The view most accepted in the medical community comes from an article published in the Journal of the American Medical Association by a group of scientists at the University of California, San Francisco, who concluded that a human fetus probably does not have the capacity to experience pain until the 29th week of pregnancy at the earliest). The only exception permitted by Nebraska’s law is a threat to the pregnant woman’s life. Several other states are now considering similar legislation.

The first, most obvious, lesson to be drawn from this incident is the growing fanaticism among anti-abortion state legislators and advocates with respect to abortion regulation, and their corresponding indifference to parental wishes. Like numerous other cases of later abortion with which I have become familiar in the course of my research, the Deavers sought an abortion, in this case of a much-wanted pregnancy, precisely to avoid the kind of suffering that their baby ended up enduring.

Nebraska State Senator Mike Flood

Nebraska State Senator Mike Flood (press photo)

But the parents’ wishes, not to mention the newborn’s agonizing 15 minutes of struggle before she died, are of little consequence to those who promote such measures. As Nebraska legislator Senator Mike Flood told the press, “Even in these situations where the baby has a terminal condition or there’s not much chance of surviving outside of the womb, my point has been and remains that it is still a life.” A leader of Nebraska Right to Life similarly told the press that it was “more humane for the baby to die in a loving manner with comfort care and in the arms of her parents than by the intentional painful death through abortion.” Reading these statements, I could not help but be reminded of a very different response to parents, in situations similar to the Deavers, that was told to me by a chaplain who worked with the late Dr. George Tiller in Wichita, offering pastoral counseling to those receiving later abortions because of fetal anomalies: “This was holy work we were doing here. We gave the parents the gift of not having to make their babies suffer.”

A second lesson that emerges from this incident is the misguided nature of the recent calls by two prochoice writers for their colleagues in the abortion rights community to relent on the defense of post-first trimester abortions. Both Frances Kissling, the founder of Catholics for Choice, and William Saletan,* of Slate.com, have argued that the prochoice movement is losing ground—“caught in a time warp” as Kissling put it in a widely disseminated Washington Post op-ed—because of its refusal to acknowledge “the existence and value of the fetus.” In order to regain public support, both authors suggest, the movement must be willing to question the legitimacy of abortions in the second trimester and beyond. To be sure, when Kissling wrote that “we need to firmly and clearly reject post-viability abortions except in extreme cases,” she also went on to list several exceptions, including “when the fetus suffers from conditions that are incompatible with a good quality of life.”

Kissling and Saletan’s call for a retreat on procedures after the first trimester may indeed be good politics, in that the American public as a whole is considerably more supportive of abortion in the first trimester than later. But the Nebraska case illustrates why their proposal is such bad policy. As noted above, Kissling makes quite clear her view that an abortion for a fetus in a situation similar to this Nebraska case would be justified, at 23 weeks and presumably later. Probably most Americans, when confronted with the facts, would reach the same conclusion. But the only relevant point here is that a majority of Nebraska legislators, in their refusal to allow any exceptions except a threat to the woman’s life, did not!

Kissling and Saletan offered their proposals as if there exists in the United States universal consensus as to what constitutes justifiable exceptions to abortion laws. But in my view this approach is naïve, considering the enormous politicization of the abortion issue. As just mentioned, the Nebraska legislators did not see fit to make fetal anomalies an allowable exception to the 20-week cutoff date.

Moreover, even when legislation does contains such exceptions as “threats to a woman’s life,” “serious health risks” to a woman, or “poor quality of life” for a fetus if the pregnancy continues, what these exceptions actually mean in practice are not always clear, and rely on subjective judgments by physicians—and often lawyers. And that is why the legal as well as legislative climate in the particular place where a contested pregnancy occurs is so consequential. Consider this press account of the deliberations of Danielle Deaver’s physician after she and her husband requested an abortion.

Screenshot of ABC News broadcast of interview with Danielle and Robb Deaver

Screenshot of ABC News broadcast of interview with
Danielle and Robb Deaver

Dr. Todd Pankcatz, her primary physician…. said he asked several attorneys to review the law to see whether he could fulfill the family’s request to terminate the pregnancy…. Because of the uncertainty, Pankcatz said he was advised not to fulfill the family’s request. ‘There were criminal charges that I would potentially face by intervening in a pregnancy like this,’ Pankcatz said. Physicians who break the law face felony charges that could result in five years in prison and a $10,000 fine.”

For me, the overriding lesson to be drawn from the Deavers’ tragedy is that abortion rights advocates have to keep explaining to the American people why ideologically driven abortion restrictions have no place in a compassionate society.

*Tracy Weitz and I have written an earlier piece on the ANSIRH blog extensively critiquing Saletan’s position on the question of second trimester abortions and related topics pertaining to abortion policy.

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  • Jillian St. Andre:

    You said the Deavers sought abortion. In fact, they did not seek abortion, they sought induced labor or c-section — they wanted to deliver a live baby Elizabeth prematurely without having to wait, and the Nebraska law prevented them. Since a preemie’s chance of survival at that stage would have been about fifty-fifty, by allowing the child to go through the trauma of ten days in a womb experiencing contractions with no amniotic fluid, well — I’m not a doctor, but it sounds to me like the pro-life movement might have killed that child.

    • carole joffe:

      Jillian, thank-you for this. It sounds like you are personally acquainted with the Deavers. I hope they are doing as well as can be expected. Please convey to them my good wishes, and my thanks for their willingness to go public in the midst of such a harrowing time. carole

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