School Notes

Abortion and Brain Waves

By GREGG EASTERBROOK
Issue date: 01.31.00
Post date: 01.24.00

No other issue in American politics stands at such an impasse. Decades after Roe v. Wade, the abortion debate remains a clash of absolutes: one side insists that all abortions be permitted, the other that all be prohibited. The stalemate has many and familiar causes, but a critical and little-noticed one is this: Public understanding has not kept pace with scientific discovery. When Roe was decided in 1973, medical knowledge of the physiology and neurology of the fetus was surprisingly scant. Law and religion defined our understanding, because science had little to say. That is now changing, and it is time for the abortion debate to change in response.

Quietly, without fanfare, researchers have been learning about the gestational phases of human life, and the new information fits neither the standard pro-choice position nor the standard pro-life position. As far as science can tell, what happens early in the womb looks increasingly like cold-hearted chemistry, with the natural termination of potential life far more common than previously assumed. But science also shows that by the third trimester the fetus has become much more human than once thought–exhibiting, in particular, full brain activity. In short, new fetal research argues for keeping abortion legal in the first two trimesters of pregnancy and prohibiting it in the third.

This is a message neither side wants to hear. But, as the Supreme Court prepares to take up the abortion issue for the first time in nearly a decade, new fetal science may provide a rational, nonideological foundation on which to ground the abortion compromise that currently proves so elusive. And, curiously enough, by supporting abortion choice early in pregnancy while arguing against it later on, the science brings us full circle–to the forgotten original reasoning behind Roe.

Many religious interpretations today hold that life begins when sperm meets egg. But this has not always been so; until 1869, for example, the Catholic Church maintained that life commenced 40 days after conception. Derived from interpretation rather than from Scripture–the Bible says nothing about when the spark of life is struck–the notion that sacredness begins when sperm meets egg hinges on the assumption that it is God’s plan that each act of conception should lead to a baby.

But new science shows that conception usually does not produce a baby. “The majority of cases in which there is a fertilized egg result in the non-realization of a person,” says Dr. Machelle Seibel, a reproductive endocrinologist at the Boston University School of Medicine. What exists just after conception is called a zygote. Research now suggests that only about half of all zygotes implant in the uterine wall and become embryos; the others fail to continue dividing and expire. Of those embryos that do trigger pregnancy, only around 65 percent lead to live births, even with the best prenatal care. The rest are lost to natural miscarriage. All told, only about one-third of sperm-egg unions result in babies, even when abortion is not a factor.

This new knowledge bears particularly on such controversies as the availability of “morning after” birth-control pills, which some pharmacy chains will not stock. “Morning after” pills prevent a zygote from implanting in the uterine wall. If half of all fertilized eggs naturally do not implant in the uterine wall, it is hard to see why a woman should not be allowed to produce the same effect using artificial means.

More generally, the evidence that two-thirds of conceptions fail regardless of abortion provides a powerful new argument in favor of choice in the early trimesters. Perhaps it is possible that God ordains, for reasons we cannot know, that vast numbers of souls be created at conception and then naturally denied the chance to become babies. But science’s new understanding of the tenuous link between conception and birth makes a strong case that what happens early in pregnancy is not yet life in the constitutional sense.

Yet, if new science buttresses the pro-choice position in the initial trimesters, at the other end of pregnancy it delivers the opposite message. Over the past two decades it has become increasingly clear that by the third trimester many fetuses are able to live outside the mother, passing a basic test of personhood. Now research is beginning to show that by the beginning of the third trimester the fetus has sensations and brain activity and exhibits other signs of formed humanity.

Until recently most physicians scoffed at the idea of fetal “sentience.” Even newborns were considered incapable of meaningful sensation: until this generation, many doctors assumed that it would be days or weeks before a newly delivered baby could feel pain. That view has been reversed, with the medical establishment now convinced that newborns experience complex sensations. The same thinking is being extended backward to the third-trimester fetus.

Over the past decade, pediatric surgeons have learned to conduct within-womb operations on late-term fetuses with correctable congenital conditions. As they operated within the womb, doctors found that the fetus is aware of touch, responds to sound, shows a hormonal stress reaction, and exhibits other qualities associated with mental awareness. “The idea that the late-term fetus cannot feel or sense has been overturned by the last fifteen years of research,” says Dr. Nicholas Fisk, a professor of obstetrics at the Imperial College School of Medicine in London.

Most striking are electroencephalogram (EEG) readings of the brain waves of the third-trimester fetus. Until recently, little was known about fetal brain activity because EEG devices do not work unless electrodes are attached to the scalp, which is never done while the fetus is in the womb. But the past decade has seen a fantastic increase in doctors’ ability to save babies born prematurely. That in turn has provided a supply of fetal-aged subjects who are out of the womb and in the neonatal intensive care ward, where their EEG readings can be obtained.

EEGs show that third-trimester babies display complex brain activity similar to that found in full-term newborns. The legal and moral implications of this new evidence are enormous. After all, society increasingly uses cessation of brain activity to define when life ends. Why not use the onset of brain activity to define when life begins?

Here is the developmental sequence of human life as suggested by the latest research. After sperm meets egg, the cells spend about a week differentiating and dividing into a zygote. One to two weeks later the zygote implants in the uterine wall, commencing the pregnancy. It is during this initial period that about half of the “conceived” sperm-egg pairings die naturally. Why this happens is not well-understood: one guess is that genetic copying errors occur during the incipient stages of cellular division.

The zygotes that do implant soon transform into embryos. During its early growth, an embryo is sufficiently undifferentiated that it is impossible to distinguish which tissue will end up as part of the new life and which will be discarded as placenta. By about the sixth week the embryo gives way to the fetus, which has a recognizable human shape. (It was during the embryo-fetus transition, Augustine believed, that the soul is acquired, and this was Catholic doctrine for most of the period from the fifth century until 1869.) Also around the sixth week, faint electrical activity can be detected from the fetal nervous system. Some pro-life commentators say this means that brain activity begins during the sixth week, but, according to Dr. Martha Herbert, a neurologist at Massachusetts General Hospital, there is little research to support that claim. Most neurologists assume that electrical activity in the first trimester represents random neuron firings as nerves connect–basically, tiny spasms.

The fetus’s heart begins to beat, and by about the twentieth week the fetus can kick. Kicking is probably a spasm, too, at least initially, because the fetal cerebral cortex, the center of voluntary brain function, is not yet “wired,” its neurons still nonfunctional. (Readings from 20- to 22-week-old premature babies who died at birth show only very feeble EEG signals.) From the twenty-second week to the twenty-fourth week, connections start to be established between the cortex and the thalamus, the part of the brain that translates thoughts into nervous-system commands. Fetal consciousness seems physically “impossible” before these connections form, says Fisk, of the Imperial College School of Medicine.

At about the twenty-third week the lungs become able to function, and, as a result, 23 weeks is the earliest date at which premature babies have survived. At 24 weeks the third trimester begins, and at about this time, as the cerebral cortex becomes “wired,” fetal EEG readings begin to look more and more like those of a newborn. It may be a logical consequence, either of natural selection or of divine creation, that fetal higher brain activity begins at about the time when life outside the mother becomes possible. After all, without brain function, prematurely born fetuses would lack elementary survival skills, such as the ability to root for nourishment.

At about 26 weeks the cell structure of the fetal brain begins to resemble a newborn’s, though many changes remain in store. By the twenty-seventh week, according to Dr. Phillip Pearl, a pediatric neurologist at Children’s Hospital in Washington, D.C., the fetal EEG reading shows well-organized activity that partly overlaps with the brain activity of adults, although the patterns are far from mature and will continue to change for many weeks. By the thirty-second week, the fetal brain pattern is close to identical to that of a full-term baby.

Summing up, Paul Grobstein, a professor of neurology at Bryn Mawr University, notes, “I think it can be comfortably said that by the late term the brain of the fetus is responding to inputs and generating its own output. The brain by then is reasonably well-developed. But we still don’t know what within the fetal brain corresponds to the kind of awareness and experience that you and I have.” The fetus may not know it is a baby or have the language-ordered thoughts of adults. But Grobstein points out that from the moment in the third trimester that the brain starts running, the fetus can experience the self/other perceptions that form the basis of human consciousness–since the womb, to it, represents the outside world.

In 1997, the Royal College of Obstetricians and Gynecologists, Britain’s equivalent to a panel of the National Academy of Sciences, found that, because new research shows that the fetus has complex brain activity from the third trimester on, “we recommend that practitioners who undertake termination of pregnancy at 24 weeks or later should consider the requirements for feticide or fetal analgesia and sedation.” In this usage, “feticide” means killing the fetus the day before the abortion with an injection of potassium that stops the fetus’s heart, so that death comes within the womb. Otherwise, the Royal College suggests that doctors anesthetize the fetus before a third-trimester termination–because the fetus will feel the pain of death and may even, in some sense, be aware that it is being killed.

If a woman’s life is imperiled, sacrificing a third-trimester fetus may be unavoidable. But the American Medical Association (AMA) says late-term abortions to save the mother’s life are required only under “extraordinary circumstances”; almost all late-term abortions are elective. In turn, the best estimates suggest that about 750 late-term abortions occur annually in the United States, less than one percent of total abortions. (An estimated 89 percent of U.S. abortions occur in the first trimester, ethically the least perilous time.) Pro-choice advocates sometimes claim that, because less than one percent of abortions are late-term, the issue doesn’t matter. But moral dilemmas are not attenuated by percentages: no one would claim that 750 avoidable deaths of adults did not matter.

On paper the whole issue would seem moot, because Supreme Court decisions appear to outlaw late-term abortion except when the woman’s life is imperiled. But in practice the current legal regime allows almost any abortion at any time, which turns out to be a corruption of Roe.

In its 1973 opinions in Roe and a companion case called Bolton, the Supreme Court established an abortion hierarchy: during the first trimester, there would be essentially no restrictions; during the second trimester, states could regulate abortion, but only to insure that procedures were carried out by qualified practitioners; during the third trimester, states could prohibit abortion, except when necessary “to preserve the life or health of the mother.” (In abortion law, the Supreme Court sets ground rules, but states enact the regulations; Congress can sometimes intervene.) Roe’s third-trimester standard was considered largely theoretical, because in 1973 doctors were generally unable to perform safe late-term abortions. That would change.

Roe was premised on the idea that the Constitution protects medical privacy, an important concept in law for everyone, not just women. But even constitutional rights may be regulated, as, for example, libel laws regulate free speech. Roe did not grant an unqualified privilege: it held that a woman’s claim to make her own medical choices is strong in the first trimester of pregnancy, moderate in the second, and weak in the third, at which point the state acquires a “compelling” interest in the protection of new life. The court’s inclination to permit abortion in the first two trimesters and all but ban it in the third was both morally defensible and helpful to physicians and regulators, because the beginning of the third trimester can be objectively determined within a week or so. Whatever one thinks of the legal reasoning in Roe–the opinion is sometimes attacked even by liberal scholars for its shaky use of precedent–its attempts at rights-balancing are a model of conscientious jurisprudence.

The problem is that Roe’s third-trimester protections were brushed aside by two descendant Supreme Court cases, Danforth in 1976 and Colautti in 1979. Danforth tossed out Roe’s clear, comprehensible third-trimester distinction and substituted a “viability” standard so vague it was impossible to make heads or tails of it. Unlike the third trimester, which can be objectively delineated, viability is subjective. Some babies are viable at the biological frontier of 23 weeks; others die even if carried to term; there is no way to know in advance. Danforth went so far as to prohibit states from drawing clear lines at the third trimester–that is, it forbade states from using the logic of Roe.

Three years later, Colautti essentially said that, since no one could understand Danforth, it would henceforth be up to each woman’s physician to determine whether a fetus was viable and thus legally protected. Here a misjudgment was poised atop an error, given that no doctor can ever be sure that a fetus is viable. Since the person making the determination may also perform the abortion, all a physician has to do under Colautti is hazard a guess that the fetus is not viable, and a late-term abortion may proceed. There is no accountability for, or review of, the physician’s judgment. And, if an abortion occurs, no disproof of the doctor’s judgment is possible, since the chance of viability ends.

The blurry viability standard was reinforced in the 1992 Supreme Court case called Casey. Again the Court appeared to outlaw late-term abortion, saying that a viable fetus should be constitutionally protected. But it rejected bright-line definitions of the onset of life, specifically forbidding states to employ the third trimester as a clear, enforceable standard. Instead the Court cryptically declared that viability confers protection “whenever it may occur”–medically close to meaningless, since there is no sure means to determine viability. Under Casey, as under Colautti, it is the abortion provider who deems whether a third-trimester fetus is viable, which makes almost any late-term abortion permissible. That is the status quo today.

Casey appeared to grant states the authority to restrict late-term abortion so long as they do not “unduly” burden women seeking early abortions. Thirty states proceeded to enact third-trimester restrictions, but most of these have been struck down, either for being too vague to enforce or for containing Trojan-horse language meant to erode Roe itself.

Recently, some states have opted for legislation intended solely to prevent a form of late-term abortion called D&X, in which delivery is induced, the fetus is partly born, feet first, and then the skull is crushed and the brains vacuumed out. There is no moral distinction between aborting a late-term fetus via D&X and doing the same via the D&E procedure, in which death occurs within the womb: either both are defensible or neither is. (See “Sideshow,” by Jeffrey Rosen, November 29, 1999.) Yet D&X is undeniably barbaric. The AMA has recommended that its members not perform this procedure, adding that “there does not appear to be any identified situation” in which it is required for the health of the mother. In many nations, the technique is unthinkable: Fisk, of the Imperial College School of Medicine, notes, “I’ve never known a respectable physician who has done a D&X.”

This fall, the U.S. Court of Appeals for the Seventh Circuit upheld a Wisconsin statute that prohibited D&X abortion but allowed D&E. (The opinion was by my brother Frank, an appellate judge, who had no connection to the writing of this article.) Editorialists declared that, for the first time, a federal court had “banned” late-term abortion, though the decision did nothing of the kind–it simply found that Wisconsin could regulate types of late-term procedures, so long as women retained the rights delineated under Roe. Also this fall, the U.S. Court of Appeals for the Eighth Circuit overturned a Nebraska law that restricted D&X but made no provisions for threats to the life of the mother. Faced with conflicting opinions among the appellate circuits, the Supreme Court said last week that it would hear the late-term abortion issue again, setting the stage for the first important abortion ruling of this generation.

Meanwhile, each year since 1995, Congress has enacted legislation to restrict late-term abortion, and each year President Clinton has either vetoed or threatened to veto it. During the sequence of votes and vetoes, each side has gone out of its way to make itself look bad. Pro-life members of Congress have proposed absolute bans that make no provision for protecting the life of the mother, which undermines their claim to revere life. Senator Diane Feinstein of California, in what was surely one of the all-time lows for American liberalism, brought to the Senate floor a bill intended to affirm a woman’s right to terminate a healthy, viable late-term fetus. Both sides have opposed a reasonable middle ground. In 1996, for example, Representative Steny Hoyer of Maryland, a liberal Democrat, offered a bill to ban late-term abortions except when necessary to avert “serious adverse health consequences” to the woman. Rather than rally around this compromise, pro-lifers and pro-choicers mutually assailed it.

In 1997, the AMA declared that third-trimester abortions should not be performed “except in cases of serious fetal anomalies incompatible with life,” meaning when the fetus appears fated to die anyway. The AMA supports Roe, backs public funding of abortions, and favors availability of RU-486; it simply thinks that, once a fetus can draw its own breath, a new life exists and must be protected. The AMA declaration had a strong influence on centrists such as Democratic Representative Tim Roemer of Indiana, who has called the D&X procedure “inches from infanticide,” and Senate Minority Leader Tom Daschle, who in 1997 switched from supporting late-term abortion to opposing it.

Daschle offered a bill that would have prohibited third-trimester abortions except to avoid “grievous injury” to the mother and would have required any physician performing a late-term abortion to certify that the fetus was not viable. Under pressure from pro-choice lobbyists, Clinton offered only tepid, pro forma support for the Daschle bill. Pro-life activists rallied against it, asserting that the “grievous injury” clause could justify abortions based upon a woman’s mental rather than physical health. Gridlock has prevailed since.

The issue of mental health is an example of how absolutist thinking cripples both pro-life and pro-choice advocacy. Pro-life forces find it repugnant that a woman might be allowed to terminate a pregnancy to preserve her emotional state, yet it is fair to assume that no man will ever understand the mental-health consequences to a woman of unwanted motherhood. Conversely, pro-choice theory concerns itself only with a woman’s mental health during pregnancy, not afterward. A woman who carries an unwanted child to term and then offers the baby for adoption may suffer physical and psychological hardship and social opprobrium–but, for the rest of her life, her conscience will be clear. Pro-choice absolutism takes no account of the mental health of the woman who aborts a viable child and then suffers remorse for an act she cannot undo.

If women’s health and freedom represent the blind spot of the pro-life side, the moral standing of the third-trimester fetus–the baby, by that point–is the blind spot of pro-choicers. Pro-choice adherents cite the slippery slope, but that apprehension is an artifact of lobbying and fundraising, not of law. Clinton, reflecting the absolutist line, has said that late-term abortion is “a procedure that appears inhumane” but that restrictions “would be even more inhumane” because they would lead to the overturning of Roe. For those who know what’s actually in Roe–a trimester system whose very purpose is to allow early choice while protecting late-term babies–this claim is more than a little ironic.

Women are right to fear that political factions are working to efface their rights. Late-term abortion is simply not the ground on which to stage the defense–because, unless the mother’s life is at stake, late-term abortion is wrong.

It is time to admit what everyone knows and what the new science makes clear: that third-trimester abortion should be very tightly restricted. The hopelessly confusing viability standard should be dropped in favor of a bright line drawn at the start of the third trimester, when complex fetal brain activity begins. Restricting abortion after that point would not undermine the rights granted by Roe, because there is no complex brain activity before the third trimester and thus no slippery slope to start down. Scientifically based late-term abortion restrictions would not enter into law poignant but unprovable spiritual assumptions about the spark of life but would simply protect lives whose humanity is now known.

To be sure, restrictions on late-term abortion would harm the rights of American women, but the harm would be small, while the moral foundation of abortion choice overall would be strengthened by removing the taint of late-term abortion. By contrast, restrictions on early abortions would cause tremendous damage to women’s freedom while offering only a hazy benefit to the next generation, since so many pregnancies end naturally anyway. There are costs to either trade-off, but they are costs that a decent society can bear.

Western Europe is instructive in this regard. In most European Union nations, early abortion is not only legal but far less politically contentious than it is here. Yet, in those same countries, late-term abortion is considered infanticide. All European Union nations except France and the United Kingdom ban abortion in the third trimester, except to save the mother’s life. And, even where allowed, late-term abortion occurs at one-third the U.S. rate. Western European countries have avoided casting abortion as a duel between irresolvable absolutes. They treat abortion in the first two trimesters as a morally ambiguous private matter, while viewing it in the third trimester as public and morally odious. We should follow their lead. All it requires is knowledge of the new fetal science and a return to the true logic of Roe.