Should Mothers Be Forced to Bear Disabled Children Against Their Will?

Twenty-week abortion bans compel women to carry profoundly disabled children to term.

Washington, DC, USA --- Human fetus at National Museum of Health and Medicine
National Journal
Beth Reinhard
Oct. 10, 2013, 5 p.m.

LITTLE ROCK, Ark. — On their way to the ul­tra­sound ex­am, Ab­bey and Kyle Sanders stopped at Ba­bies”R”Us. They picked out a navy sun­dress with white flowers for a girl, navy shorts with white stripes for a boy. Close friends were in­vited over for a “gender re­veal” party the next day. Ab­bey was nearly 20 weeks preg­nant.

“It’s a little girl,” the ul­tra­sound tech­ni­cian said. Ab­bey star­ted cry­ing. “You’re hav­ing a daugh­ter!” she said to Kyle. Ab­bey texted her moth­er: healthy baby girl. Kyle no­ticed that the poker-faced tech­ni­cian didn’t of­fer any re­as­sur­ance about the baby’s health.

The doc­tor walked in. “I’m very con­cerned,” he said, and Ab­bey’s tears turned to sobs. He re­ferred the couple to a high-risk fetal-medi­cine spe­cial­ist, who did a more soph­ist­ic­ated ul­tra­sound and found that the fetus’s brain was fail­ing to di­vide and was grow­ing out­side the skull, a cham­ber was miss­ing from the heart, and there was a prob­lem with the kid­neys.

“Is there any chance of the baby sur­viv­ing?” asked Kyle, an Air Force pi­lot. “No. This baby will not sur­vive to term” was the re­sponse.

The new­ly­weds were dev­ast­ated. The baby’s kicks now felt like a tor­tur­ous re­mind­er that they would nev­er be par­ents to this child. She was dy­ing. The right thing to do, the mor­al thing to do, Ab­bey and Kyle be­lieved, was to ter­min­ate the preg­nancy. A suc­tion abor­tion this late in preg­nancy could have dam­aged 29-year-old Ab­bey’s cer­vix, so four days after the second ul­tra­sound, a doc­tor in­jec­ted the baby with a heart-stop­ping drug.

And then they waited. For nine days, they barely left the house. Ab­bey spent most of the time curled up in bed. She felt what she thought were con­trac­tions and went to the hos­pit­al, but was told to come back the fol­low­ing day. Ten days after the in­jec­tion, Ab­bey checked in­to the ma­ter­nity ward. She was barely show­ing, un­like all the oth­er fully dis­ten­ded moth­ers around her.

She was giv­en a drug to ac­cel­er­ate the con­trac­tions and an epi­dur­al for the pain dur­ing labor. In con­trast to the cries she and Kyle heard down the hall, their still­born baby was si­lent. They held the 8-ounce in­fant wrapped in a pink blanket and cried. They were asked if they wanted a pic­ture or hand­print. No, thank you, they said, head­ing home to grieve.

Her name was Amelia. The date was Aug. 3, 2012.

Sev­en months later, the Arkan­sas Le­gis­lature banned wo­men from get­ting abor­tions after 20 weeks of preg­nancy. Ab­bey had been a day or two over that line when her preg­nancy ended. The law in­cludes ex­cep­tions for rape and in­cest vic­tims and for health emer­gen­cies in­volving the wo­man, but not for fetal ab­nor­mal­it­ies.

Had the law been in place last year, Ab­bey would have had to con­tin­ue an ag­on­iz­ing preg­nancy, pos­sibly for weeks, and any doc­tor will­ing to end it would have risked a felony charge. An early ul­tra­sound and a blood test had de­tec­ted noth­ing wrong. Ab­bey had asked for the second scan at 19 weeks, ex­cited to find out the baby’s gender, but the doc­tor’s of­fice urged her to wait a few days. Ul­tra­sounds are typ­ic­ally done at 20 weeks to get a clear look at de­vel­op­ing or­gans, es­pe­cially the heart. It can take sev­er­al days, even weeks, to sched­ule ad­di­tion­al tests, weigh the res­ults, and ar­range for an abor­tion. There’s only one clin­ic in Arkan­sas that provides second-tri­mester abor­tions, aside from some private hos­pit­als.

Ab­bey, a nurse who comes from a con­ser­vat­ive Chris­ti­an fam­ily in Ok­lahoma, nev­er labeled her­self “pro-choice” or “pro-life.” Now she pic­tures thrust­ing her sono­gram and med­ic­al files at the law­makers who voted for the abor­tion ban. “Would you let your own baby die slowly like that?” she would ask them. “If your wife was in these cir­cum­stances, would you force her to carry that baby?” She adds now, “I don’t think I could have gone on any longer, and any wo­man who was forced to would have lost her mind.”

Twelve states, as well as the House of Rep­res­ent­at­ives, have voted to out­law abor­tion after 20 weeks — the ex­act mo­ment when some par­ents are just learn­ing about severe or even fatal de­fects. Only Geor­gia, Louisi­ana, and Texas in­clude ex­cep­tions for fetal impair­ment. And while these 20-week bans af­fect a tiny frac­tion of abor­tions — only 1.3 per­cent oc­cur after 21 weeks, the bench­mark used by the fed­er­al gov­ern­ment — they pre­dom­in­antly tar­get wo­men who are car­ry­ing gravely im­paired ba­bies or whose preg­nan­cies are put­ting their own health at risk. With very few ex­cep­tions, these are wo­men who had every in­tent to carry their ba­bies to term un­til forced, at five months preg­nant, to make a swift and ex­cru­ci­at­ing de­cision.

“Our ex­per­i­ence has been that par­ents who have gone through this don’t talk about it,” Kyle says. “We wanted to tell our story for the people who didn’t feel like they could. A fam­ily friend said it was like join­ing a secret club that no one wants to join.”

Ban­ning abor­tions after 20 weeks rep­res­ents the new fron­ti­er of the an­ti­abor­tion move­ment, aimed at push­ing past the bound­ar­ies set by the Su­preme Court in 1973. The Roe v. Wade de­cision leg­al­ized abor­tions un­til a fetus is vi­able out­side the womb, around 24 weeks. The an­ti­abor­tion move­ment’s case for earli­er re­stric­tions is that a fetus can feel pain at 20 weeks, but the ul­ti­mate goal is much more sweep­ing: to send a leg­al chal­lenge to the Su­preme Court that would over­turn Roe. 

The con­sti­tu­tion­al im­plic­a­tions aren’t lost on Ab­bey, who em­phas­izes that she lives in Arkan­sas only be­cause her hus­band is sta­tioned there. She’s also seen him through de­ploy­ments to Ir­aq and Afgh­anistan. “I would have had to leave the state as a mil­it­ary spouse to get an abor­tion,” Ab­bey says. “That seems un­fair when I don’t have a choice about where I live. I think it’s un­con­sti­tu­tion­al, and my hus­band sup­ports and de­fends the Con­sti­tu­tion on a daily basis.”

There are also pub­lic-policy con­sequences. Half of the dozen states that have passed 20-week abor­tion bans — Alabama, Arkan­sas, Geor­gia, Louisi­ana, Ok­lahoma, and Texas — are in the South, which has the highest poverty and un­in­sured rates and the low­est me­di­an in­comes in the coun­try, ac­cord­ing to the Census Bur­eau. That means fam­il­ies in these states are among the most dis­ad­vant­aged when it comes to caring for un­wanted and dis­abled chil­dren. Arkan­sas, for ex­ample, ranks near the bot­tom in un­in­ten­ded and teen preg­nancy rates (46th), num­ber of doc­tors per res­id­ent (44th), and pub­lic health as meas­ured by obesity, smoking, and dia­betes (48th), ac­cord­ing to data from non­profit or­gan­iz­a­tions and the fed­er­al gov­ern­ment. Nearly one in five people in Arkan­sas have no health in­sur­ance. About the same pro­por­tion are liv­ing be­low the fed­er­al poverty line.

“The very same folks who are adam­ant about wo­men not hav­ing choice [on abor­tion] are not equally as adam­ant about mak­ing sure the safety nets are in place for the par­ents and the chil­dren,” says Demo­crat­ic state Rep. Joyce El­li­ott, who rep­res­ents a pre­dom­in­antly low-in­come, black dis­trict near Little Rock. “There is a mor­al im­per­at­ive to en­sure such safety nets are there.”

MOV­ING THE NEEDLE

The gen­es­is of the 20-week ban on abor­tion was the 2009 murder of one of the only late-term abor­tion pro­viders in the coun­try, Dr. George Tiller. He was work­ing as an ush­er Sunday morn­ing at his church in Wichita, Kan., when an an­ti­abor­tion act­iv­ist shot him in the head. A friend and col­league who as­sisted him part time in Wichita, LeRoy Car­hart, vowed to pick up the torch by per­form­ing late-term abor­tions at his own clin­ic in sub­urb­an Omaha, Neb. Ground zero of the abor­tion battle moved one state to the north, as con­ser­vat­ive law­makers feared Neb­raska was be­com­ing the late-term abor­tion cap­it­al of the Mid­w­est.

Enter Mary Spauld­ing Balch, a soft-spoken, Pep­perdine-trained law­yer who has worked at Na­tion­al Right to Life for 25 years. After hear­ing about the con­cerns in Neb­raska, Balch draf­ted a bill called the Pain-Cap­able, Un­born Child Pro­tec­tion Act. To abor­tion-rights act­iv­ists, the bill was par­tic­u­larly dan­ger­ous be­cause it moved the needle to­ward over­turn­ing Roe v. Wade by tap­ping in­to pop­u­lar dis­com­fort with late abor­tions. A United Tech­no­lo­gies/Na­tion­al Journ­al Con­gres­sion­al Con­nec­tion Poll in Ju­ly found that a plur­al­ity, 48 per­cent, of Amer­ic­ans, sup­por­ted a ban on abor­tions after 20 weeks, ex­cept in cases of rape and in­cest. Re­cent sur­veys by Quin­nipi­ac Uni­versity and ABC News/Wash­ing­ton Post found even high­er, ma­jor­ity sup­port for cut­ting off abor­tions after 20 weeks.

“The idea of the un­born child’s pain was something we knew the Amer­ic­an people could em­brace,” says Balch, hailed as the ar­chi­tect of the 20-week strategy. “My job is to hu­man­ize the un­born child, and if this is the tool that does that, I’m happy to be part of it.” 

Her mod­el le­gis­la­tion was cir­cu­lated around the coun­try, and three years later, 12 states have ad­op­ted bans on abor­tions after 20 weeks. Court chal­lenges have blocked the re­stric­tions in Ari­zona, Geor­gia, and Idaho. (A court has also blocked an Arkan­sas law that bans abor­tion after just 12 weeks of preg­nancy, passed in the same le­gis­lat­ive ses­sion as the 20-week ban, which still stands.) In Ari­zona, Mari­copa County At­tor­ney Bill Mont­gomery has asked the U.S. Su­preme Court to con­sider a fed­er­al Ap­peals Court rul­ing that struck down that state’s 20-week ban. The an­ti­abor­tion es­tab­lish­ment wel­comes the leg­al battles. “We are open to a chal­lenge be­cause we think it’s one we can win,” Balch says.

While sty­mied at the fed­er­al level by the Demo­crat­ic Party’s con­trol of the White House and the Sen­ate, an­ti­abor­tion act­iv­ists have staked out friendly turf with­in state cap­it­als since the Re­pub­lic­an wave of 2010. In Arkan­sas, Re­pub­lic­ans net­ted a num­ber of le­gis­lat­ive seats that year, and in 2012 won con­trol of both cham­bers for the first time since Re­con­struc­tion.

{{ BIZOBJ (video: 4499) }}

The im­pact was dra­mat­ic and im­me­di­ate. In 2011, 10 of 11 an­ti­abor­tion bills failed, many of them blocked by the Demo­crat­ic chair­wo­man of the House Pub­lic Health Com­mit­tee, Linda Tyler. She lost a state Sen­ate bid the fol­low­ing year to a fiddle-play­ing, tea-party con­ser­vat­ive, Jason Rapert. Two weeks after the start of the 2013 le­gis­lat­ive ses­sion, the newly min­ted state sen­at­or in­tro­duced a bill mak­ing it a crime to per­form an abor­tion if a fetal heart­beat could be de­tec­ted. That threshold can come as early as six weeks in­to a preg­nancy.

Rapert, an or­dained min­is­ter and the own­er of a fin­an­cial-ser­vices com­pany, doesn’t sug­ar­coat his view of wo­men’s motives in seek­ing abor­tion. “Amer­ica, quit us­ing abor­tion as birth con­trol,” he ad­mon­ished dur­ing an in­ter­view in his le­gis­lat­ive of­fice.

The 41-year-old fath­er of two daugh­ters, who has a buzz cut and fa­vors dark, pin-striped suits, wiel­ded in­cen­di­ary com­par­is­ons to make his case. Abor­tion op­pon­ents are like ab­ol­i­tion­ists, he said. Roe v. Wade is like the 1857 Su­preme Court’s Dred Scott de­cision, which denied cit­izen­ship to Afric­an-Amer­ic­ans. Abor­tion is one of the worst at­ro­cit­ies in hu­man his­tory, com­par­able to the re­cent gass­ing of in­no­cent ci­vil­ians by Syr­i­an Pres­id­ent Bashar al-As­sad.

“When you think of tra­gedies, you think of gen­o­cide, of the Holo­caust “¦ you think of Rwanda, you think of 9/11, but what about us?” Rapert de­mands. “What about in­sert­ing a device in­to a wo­man to suck and tear apart a fetus in her womb? Who’s the mon­sters? We are leg­ally tak­ing the lives of in­no­cent chil­dren.”

By the time Rapert’s bill passed, the dead­line was amended from de­tec­tion of a heart­beat to 12 weeks, still leav­ing it one of the most re­strict­ive in the coun­try. Demo­crat­ic Gov. Mike Beebe ve­toed that bill as well as the 20-week ban, ar­guing that their un­con­sti­tu­tion­al­ity would cost the state in leg­al fees; the Le­gis­lature over­turned both ve­toes. In one of the most suc­cess­ful le­gis­lat­ive ses­sions ever for an­ti­abor­tion act­iv­ists, Arkan­sas also banned in­surers in the ex­change cre­ated by the new health care law from cov­er­ing abor­tion, re­quired abor­tion clin­ics to re­port child ab­use and to pre­serve fetal tis­sue from abor­tions on minors un­der 14, gave preg­nant wo­men the right to use deadly force to de­fend their un­born child, and ex­pan­ded the fetal-hom­icide law to cov­er an en­tire preg­nancy (so that a drunk driver, for ex­ample, who kills a preg­nant wo­men could also be charged with killing a fetus less than 12 weeks old).

“Over the last 20 years, we’ve seen Arkan­sas be­come one of the most pro-life states in the na­tion,” says Jerry Cox, founder of the Arkan­sas Fam­ily Coun­cil, a lead­ing an­ti­abor­tion group. “It took a lot of hard work, go­ing up to the Cap­it­ol year after year, time after time.”

The nat­ive Arkansan in a short-sleeved plaid shirt poin­ted to memen­tos of his achieve­ments in his small, wood-paneled of­fice: the pen former Re­pub­lic­an Gov. Mike Hucka­bee used to sign a law re­quir­ing wo­men to get in­form­a­tion about the med­ic­al risks of abor­tion; a let­ter signed by former Demo­crat­ic Gov. Bill Clin­ton sup­port­ing a law re­quir­ing minors to no­ti­fy their par­ents. Cox’s earli­est vic­tory was a 1988 amend­ment to the state con­sti­tu­tion that bans pub­lic fund­ing for abor­tion and de­clares: “The policy of Arkan­sas is to pro­tect the life of every un­born child from con­cep­tion un­til birth, to the ex­tent per­mit­ted by the Fed­er­al Con­sti­tu­tion.” That means Arkan­sas is well po­si­tioned to en­act even stricter abor­tion lim­its if Roe v. Wade is re­versed, says Cox, who backed both the 12-week and 20-week bans passed by the Le­gis­lature. “Let’s throw whatever we can against the wall and see what sticks,” he says.

Bet­tina Brown­stein is on the oth­er side of that fight. The South­ern Cali­for­nia nat­ive looks the part of a pro­gress­ive act­iv­ist with dark-framed glasses and sil­very spiky hair. She’s the Amer­ic­an Civil Liber­ties Uni­on law­yer rep­res­ent­ing the state’s lone sur­gic­al abor­tion clin­ic in chal­len­ging the 12-week ban, which has been tem­por­ar­ily blocked.

“It is such a no-brain­er that this is not con­sti­tu­tion­al,” Brown­stein says over a bur­ger and fries, be­tray­ing the wear­i­ness she feels from 25 years of fight­ing for abor­tion rights in Arkan­sas. She’s con­fid­ent that the 20-week ban is also un­con­sti­tu­tion­al but con­ceded, “It’s more sens­it­ive in terms of the mes­saging.” That law has not been yet chal­lenged in court.

The 12-week ban would have a much lar­ger im­pact than the 20-week ban. Of the 3,782 abor­tions re­por­ted to the Arkan­sas Health De­part­ment last year, the vast ma­jor­ity — 3,148 — oc­curred in the first tri­mester. Only 64 came at 20 weeks of preg­nancy or later.

“It’s like a wave across the coun­try with all of these Re­pub­lic­an le­gis­latures mov­ing in­to that thin edge of the wedge,” Brown­stein says. “I don’t think they can over­turn Roe v. Wade, but they will drive out the abor­tion pro­viders. There’s the leg­al — and then there’s the prac­tic­al.”

Case in point: Neb­raska’s law ban­ning abor­tion after 20 weeks worked ac­cord­ing to plan, even­tu­ally for­cing LeRoy Car­hart to be­gin see­ing pa­tients in­stead in Mary­land, a state far more pro­tect­ive of abor­tion rights, and leav­ing wo­men in the Mid­w­est seek­ing second- and third-tri­mester abor­tions in the lurch.

Among the dis­orders that can go un­detec­ted un­til 20 weeks or af­ter­ward, ac­cord­ing to the Amer­ic­an Con­gress of Ob­stet­ri­cians and Gyneco­lo­gists, are anen­cephaly, a fatal con­di­tion in which the brain is miss­ing; ren­al agen­es­is, in which miss­ing kid­neys also cause death be­fore or shortly after birth; limb-body wall com­plex, in which the or­gans are out­side the body cav­ity; hy­dro­cephaly, in which ex­cess­ive flu­id ac­cu­mu­lates with­in the brain; and oth­er severe brain and heart de­fects.

To abor­tion op­pon­ents like Cox, ex­cep­tions for wo­men such as Ab­bey Sanders who re­sort to a late-term abor­tion be­cause of un­fore­seen com­plic­a­tions are not jus­ti­fied. “The dif­fi­culty with fetal ab­nor­mal­it­ies is that there’s a slip­pery slope for the med­ic­al com­munity and par­ents,” he said. “Is Down syn­drome an ab­nor­mal­ity? Spina bi­fida? Doesn’t that cre­ate a search-and-des­troy sys­tem where only the per­fect chil­dren get to be born, and the im­per­fect ba­bies are abor­ted?”

Cox con­cedes, however, that the safety net for wo­men who would be forced to carry un­wanted or dis­abled ba­bies is “very lim­ited.” An an­nu­al re­view by the An­nie E. Ca­sey Found­a­tion that ex­am­ines eco­nom­ic prosper­ity, edu­ca­tion, health, and fam­ily sta­bil­ity ranked Arkan­sas chil­dren 40th in the coun­try. The costs of rais­ing a dis­abled child — in­clud­ing dir­ect, out-of-pock­et costs and the in­dir­ect im­pact on the fam­ily’s earn­ing po­ten­tial — can run as much as $30,500 a year, ac­cord­ing to a study pub­lished by a col­lab­or­a­tion between the Brook­ings In­sti­tu­tion and the Woo­drow Wilson School of Pub­lic and In­ter­na­tion­al Af­fairs at Prin­ceton Uni­versity. The costs vary widely de­pend­ing on the type of dis­ab­il­ity and the pub­lic re­sources avail­able for dis­ad­vant­aged chil­dren.

Yet the over­lap between states with tough­er abor­tion re­stric­tions and lower stand­ards of liv­ing is rarely men­tioned in the well-worn de­bate that pits wo­men’s re­pro­duct­ive free­dom against the rights of the un­born. One study cited by the Guttmach­er In­sti­tute, a re­search group that sup­ports abor­tion rights, es­tim­ated that more than 4,000 wo­men were denied abor­tions in 2008 be­cause of gest­a­tion­al age lim­its and were forced to carry un­wanted preg­nan­cies to term. Most of the wo­men said they were delayed by the costs of abor­tion, in­sur­ance prob­lems, and lack of ac­cess to med­ic­al care.

The 20-week abor­tion ban that passed the House in June did not in­clude an ex­cep­tion for fetal ab­nor­mal­it­ies. Three months later, the House voted to slash $40 bil­lion over the next dec­ade from the food-stamp pro­gram; nearly half of the pro­gram’s re­cip­i­ents are chil­dren.

“However you feel about abor­tion, you can an­ti­cip­ate high­er costs if you pre­vent it, and I don’t think states are pre­pared to deal with that,” says Dean Baker, cofounder of the non­par­tis­an Cen­ter for Eco­nom­ic and Policy Re­search. “If these states aren’t pre­pared to in­crease fund­ing for Medi­caid and for chil­dren with dis­ab­il­it­ies, someone is go­ing to suf­fer.”

AN­OTH­ER PATH

Arkan­sas law­makers nev­er got to hear Ab­bey Sanders’s story be­fore they passed the 20-week ban. She wasn’t ready to speak pub­licly earli­er this year. Le­gis­lat­ors heard an equally emo­tion­al story, however, from the bill’s spon­sor, state Rep. Andy May­berry, and his wife, Ju­lie, at a key House com­mit­tee meet­ing — a story that had a pro­foundly dif­fer­ent out­come.

Ju­lie May­berry de­scribed her­self as a former abor­tion-rights sup­port­er who be­came a born-again Chris­ti­an after mar­ry­ing Andy 16 years ago. “I had a hus­band who prayed for me,” ex­plained the at­tract­ive former tele­vi­sion broad­caster in an in­ter­view. She was 19 weeks preg­nant when they were told their baby had spina bi­fida, an open­ing in the spin­al cord that can cause severe phys­ic­al and men­tal dis­ab­il­it­ies. As the doc­tor ex­plained their op­tions, Andy and Ju­lie stopped him be­fore he got to abor­tion. They wouldn’t con­sider it.

“Without chal­lenges, we don’t have cham­pi­ons, and if you abort these ba­bies be­fore they even have the right to life, you have not giv­en the op­por­tun­ity for all of us to see what God had planned for this child,” Ju­lie tear­fully told the House com­mit­tee in Janu­ary. “Some of those, un­for­tu­nately, it will end up that that child may die, but that’s when God says I’m ready to take this child home with me. It gives clos­ure to those fam­il­ies when they give birth to these ba­bies and they see them and they can hold them and they can have a prop­er buri­al for them.”

The couple held a joint press con­fer­ence one month ago to an­nounce his cam­paign for lieu­ten­ant gov­ernor and her cam­paign to suc­ceed him in the Sen­ate. She runs a non­profit that of­fers dance and mu­sic classes for kids with dis­ab­il­it­ies, while he serves on the board of Arkan­sas Right to Life.

Their daugh­ter Katie is now 11. She’s in a wheel­chair and faces myri­ad health prob­lems that have war­ran­ted 16 sur­ger­ies. She’s also a former Little Miss Wheel­chair Arkan­sas, a straight-A stu­dent, and a mem­ber of her church youth choir. They have three oth­er daugh­ters, ages 14, 9, and 7.

“I think every life has value, and I be­lieve it is the gov­ern­ment’s re­spons­ib­il­ity to stand up for the most de­fense­less and in­no­cent among us,” says Rep. May­berry, sit­ting next to his wife in a booth in the state Cap­it­ol’s cafet­er­ia. He said the gov­ern­ment also has an ob­lig­a­tion to provide a safety net for poor and dis­abled chil­dren once they are born; he’s work­ing on pla­cing a nurse in every pub­lic school.

Un­like the Sanderses, the May­berrys were nev­er told that their baby was go­ing to die. Still, after hear­ing the story of Ab­bey Sanders’s preg­nancy, they main­tained that abor­tion is nev­er the right choice, adding that doc­tors are some­times mis­taken about a baby’s pro­gnos­is. ” ‘Value life and the mo­ments that you have with them, and make the most of it.’ That’s what I would be telling that moth­er,” Ju­lie says. ” ‘Turn this around. Are we go­ing to look at a glass and say it’s half empty or half full? I like to ex­pect mir­acles.’ “

The Sanderses are just as cer­tain about the choice they made as the May­berrys. Ab­bey and Kyle are look­ing for­ward to hav­ing an­oth­er baby, and there’s little chance of an­oth­er rare, chro­mo­somal de­fect. But Ab­bey is clear about one thing: She will not get preg­nant again in Arkan­sas. The couple won’t try again un­til Kyle’s re­as­sign­ment to Col­or­ado goes through. Start­ing a fam­ily will have to wait.

MOVING THE NEEDLE

The gen­es­is of the 20-week ban on abor­tion was the 2009 murder of one of the only late-term abor­tion pro­viders in the coun­try, Dr. George Tiller. He was work­ing as an ush­er Sunday morn­ing at his church in Wichita, Kan., when an an­ti­abor­tion act­iv­ist shot him in the head. A friend and col­league who as­sisted him part time in Wichita, LeRoy Car­hart, vowed to pick up the torch by per­form­ing late-term abor­tions at his own clin­ic in sub­urb­an Omaha, Neb. Ground zero of the abor­tion battle moved one state to the north, as con­ser­vat­ive law­makers feared Neb­raska was be­com­ing the late-term abor­tion cap­it­al of the Mid­w­est.

Enter Mary Spauld­ing Balch, a soft-spoken, Pep­perdine-trained law­yer who has worked at Na­tion­al Right to Life for 25 years. After hear­ing about the con­cerns in Neb­raska, Balch draf­ted a bill called the Pain-Cap­able, Un­born Child Pro­tec­tion Act. To abor­tion-rights act­iv­ists, the bill was par­tic­u­larly dan­ger­ous be­cause it moved the needle to­ward over­turn­ing Roe v. Wade by tap­ping in­to pop­u­lar dis­com­fort with late abor­tions. A United Tech­no­lo­gies/Na­tion­al Journ­al Con­gres­sion­al Con­nec­tion Poll in Ju­ly found that a plur­al­ity, 48 per­cent, of Amer­ic­ans, sup­por­ted a ban on abor­tions after 20 weeks, ex­cept in cases of rape and in­cest. Re­cent sur­veys by Quin­nipi­ac Uni­versity and ABC News/Wash­ing­ton Post found even high­er, ma­jor­ity sup­port for cut­ting off abor­tions after 20 weeks.

“The idea of the un­born child’s pain was something we knew the Amer­ic­an people could em­brace,” says Balch, hailed as the ar­chi­tect of the 20-week strategy. “My job is to hu­man­ize the un­born child, and if this is the tool that does that, I’m happy to be part of it.” 

Her mod­el le­gis­la­tion was cir­cu­lated around the coun­try, and three years later, 12 states have ad­op­ted bans on abor­tions after 20 weeks. Court chal­lenges have blocked the re­stric­tions in Ari­zona, Geor­gia, and Idaho. (A court has also blocked an Arkan­sas law that bans abor­tion after just 12 weeks of preg­nancy, passed in the same le­gis­lat­ive ses­sion as the 20-week ban, which still stands.) In Ari­zona, Mari­copa County At­tor­ney Bill Mont­gomery has asked the U.S. Su­preme Court to con­sider a fed­er­al Ap­peals Court rul­ing that struck down that state’s 20-week ban. The an­ti­abor­tion es­tab­lish­ment wel­comes the leg­al battles. “We are open to a chal­lenge be­cause we think it’s one we can win,” Balch says.

While sty­mied at the fed­er­al level by the Demo­crat­ic Party’s con­trol of the White House and the Sen­ate, an­ti­abor­tion act­iv­ists have staked out friendly turf with­in state cap­it­als since the Re­pub­lic­an wave of 2010. In Arkan­sas, Re­pub­lic­ans net­ted a num­ber of le­gis­lat­ive seats that year, and in 2012 won con­trol of both cham­bers for the first time since Re­con­struc­tion.

{{ BIZOBJ (video: 4499) }}

The im­pact was dra­mat­ic and im­me­di­ate. In 2011, 10 of 11 an­ti­abor­tion bills failed, many of them blocked by the Demo­crat­ic chair­wo­man of the House Pub­lic Health Com­mit­tee, Linda Tyler. She lost a state Sen­ate bid the fol­low­ing year to a fiddle-play­ing, tea-party con­ser­vat­ive, Jason Rapert. Two weeks after the start of the 2013 le­gis­lat­ive ses­sion, the newly min­ted state sen­at­or in­tro­duced a bill mak­ing it a crime to per­form an abor­tion if a fetal heart­beat could be de­tec­ted. That threshold can come as early as six weeks in­to a preg­nancy.

Rapert, an or­dained min­is­ter and the own­er of a fin­an­cial-ser­vices com­pany, doesn’t sug­ar­coat his view of wo­men’s motives in seek­ing abor­tion. “Amer­ica, quit us­ing abor­tion as birth con­trol,” he ad­mon­ished dur­ing an in­ter­view in his le­gis­lat­ive of­fice.

The 41-year-old fath­er of two daugh­ters, who has a buzz cut and fa­vors dark, pin-striped suits, wiel­ded in­cen­di­ary com­par­is­ons to make his case. Abor­tion op­pon­ents are like ab­ol­i­tion­ists, he said. Roe v. Wade is like the 1857 Su­preme Court’s Dred Scott de­cision, which denied cit­izen­ship to Afric­an-Amer­ic­ans. Abor­tion is one of the worst at­ro­cit­ies in hu­man his­tory, com­par­able to the re­cent gass­ing of in­no­cent ci­vil­ians by Syr­i­an Pres­id­ent Bashar al-As­sad.

“When you think of tra­gedies, you think of gen­o­cide, of the Holo­caust “¦ you think of Rwanda, you think of 9/11, but what about us?” Rapert de­mands. “What about in­sert­ing a device in­to a wo­man to suck and tear apart a fetus in her womb? Who’s the mon­sters? We are leg­ally tak­ing the lives of in­no­cent chil­dren.”

By the time Rapert’s bill passed, the dead­line was amended from de­tec­tion of a heart­beat to 12 weeks, still leav­ing it one of the most re­strict­ive in the coun­try. Demo­crat­ic Gov. Mike Beebe ve­toed that bill as well as the 20-week ban, ar­guing that their un­con­sti­tu­tion­al­ity would cost the state in leg­al fees; the Le­gis­lature over­turned both ve­toes. In one of the most suc­cess­ful le­gis­lat­ive ses­sions ever for an­ti­abor­tion act­iv­ists, Arkan­sas also banned in­surers in the ex­change cre­ated by the new health care law from cov­er­ing abor­tion, re­quired abor­tion clin­ics to re­port child ab­use and to pre­serve fetal tis­sue from abor­tions on minors un­der 14, gave preg­nant wo­men the right to use deadly force to de­fend their un­born child, and ex­pan­ded the fetal-hom­icide law to cov­er an en­tire preg­nancy (so that a drunk driver, for ex­ample, who kills a preg­nant wo­men could also be charged with killing a fetus less than 12 weeks old).

“Over the last 20 years, we’ve seen Arkan­sas be­come one of the most pro-life states in the na­tion,” says Jerry Cox, founder of the Arkan­sas Fam­ily Coun­cil, a lead­ing an­ti­abor­tion group. “It took a lot of hard work, go­ing up to the Cap­it­ol year after year, time after time.”

The nat­ive Arkansan in a short-sleeved plaid shirt poin­ted to memen­tos of his achieve­ments in his small, wood-paneled of­fice: the pen former Re­pub­lic­an Gov. Mike Hucka­bee used to sign a law re­quir­ing wo­men to get in­form­a­tion about the med­ic­al risks of abor­tion; a let­ter signed by former Demo­crat­ic Gov. Bill Clin­ton sup­port­ing a law re­quir­ing minors to no­ti­fy their par­ents. Cox’s earli­est vic­tory was a 1988 amend­ment to the state con­sti­tu­tion that bans pub­lic fund­ing for abor­tion and de­clares: “The policy of Arkan­sas is to pro­tect the life of every un­born child from con­cep­tion un­til birth, to the ex­tent per­mit­ted by the Fed­er­al Con­sti­tu­tion.” That means Arkan­sas is well po­si­tioned to en­act even stricter abor­tion lim­its if Roe v. Wade is re­versed, says Cox, who backed both the 12-week and 20-week bans passed by the Le­gis­lature. “Let’s throw whatever we can against the wall and see what sticks,” he says.

Bet­tina Brown­stein is on the oth­er side of that fight. The South­ern Cali­for­nia nat­ive looks the part of a pro­gress­ive act­iv­ist with dark-framed glasses and sil­very spiky hair. She’s the Amer­ic­an Civil Liber­ties Uni­on law­yer rep­res­ent­ing the state’s lone sur­gic­al abor­tion clin­ic in chal­len­ging the 12-week ban, which has been tem­por­ar­ily blocked.

“It is such a no-brain­er that this is not con­sti­tu­tion­al,” Brown­stein says over a bur­ger and fries, be­tray­ing the wear­i­ness she feels from 25 years of fight­ing for abor­tion rights in Arkan­sas. She’s con­fid­ent that the 20-week ban is also un­con­sti­tu­tion­al but con­ceded, “It’s more sens­it­ive in terms of the mes­saging.” That law has not been yet chal­lenged in court.

The 12-week ban would have a much lar­ger im­pact than the 20-week ban. Of the 3,782 abor­tions re­por­ted to the Arkan­sas Health De­part­ment last year, the vast ma­jor­ity — 3,148 — oc­curred in the first tri­mester. Only 64 came at 20 weeks of preg­nancy or later.

“It’s like a wave across the coun­try with all of these Re­pub­lic­an le­gis­latures mov­ing in­to that thin edge of the wedge,” Brown­stein says. “I don’t think they can over­turn Roe v. Wade, but they will drive out the abor­tion pro­viders. There’s the leg­al — and then there’s the prac­tic­al.”

Case in point: Neb­raska’s law ban­ning abor­tion after 20 weeks worked ac­cord­ing to plan, even­tu­ally for­cing LeRoy Car­hart to be­gin see­ing pa­tients in­stead in Mary­land, a state far more pro­tect­ive of abor­tion rights, and leav­ing wo­men in the Mid­w­est seek­ing second- and third-tri­mester abor­tions in the lurch.

Among the dis­orders that can go un­detec­ted un­til 20 weeks or af­ter­ward, ac­cord­ing to the Amer­ic­an Con­gress of Ob­stet­ri­cians and Gyneco­lo­gists, are anen­cephaly, a fatal con­di­tion in which the brain is miss­ing; ren­al agen­es­is, in which miss­ing kid­neys also cause death be­fore or shortly after birth; limb-body wall com­plex, in which the or­gans are out­side the body cav­ity; hy­dro­cephaly, in which ex­cess­ive flu­id ac­cu­mu­lates with­in the brain; and oth­er severe brain and heart de­fects.

To abor­tion op­pon­ents like Cox, ex­cep­tions for wo­men such as Ab­bey Sanders who re­sort to a late-term abor­tion be­cause of un­fore­seen com­plic­a­tions are not jus­ti­fied. “The dif­fi­culty with fetal ab­nor­mal­it­ies is that there’s a slip­pery slope for the med­ic­al com­munity and par­ents,” he said. “Is Down syn­drome an ab­nor­mal­ity? Spina bi­fida? Doesn’t that cre­ate a search-and-des­troy sys­tem where only the per­fect chil­dren get to be born, and the im­per­fect ba­bies are abor­ted?”

Cox con­cedes, however, that the safety net for wo­men who would be forced to carry un­wanted or dis­abled ba­bies is “very lim­ited.” An an­nu­al re­view by the An­nie E. Ca­sey Found­a­tion that ex­am­ines eco­nom­ic prosper­ity, edu­ca­tion, health, and fam­ily sta­bil­ity ranked Arkan­sas chil­dren 40th in the coun­try. The costs of rais­ing a dis­abled child — in­clud­ing dir­ect, out-of-pock­et costs and the in­dir­ect im­pact on the fam­ily’s earn­ing po­ten­tial — can run as much as $30,500 a year, ac­cord­ing to a study pub­lished by a col­lab­or­a­tion between the Brook­ings In­sti­tu­tion and the Woo­drow Wilson School of Pub­lic and In­ter­na­tion­al Af­fairs at Prin­ceton Uni­versity. The costs vary widely de­pend­ing on the type of dis­ab­il­ity and the pub­lic re­sources avail­able for dis­ad­vant­aged chil­dren.

Yet the over­lap between states with tough­er abor­tion re­stric­tions and lower stand­ards of liv­ing is rarely men­tioned in the well-worn de­bate that pits wo­men’s re­pro­duct­ive free­dom against the rights of the un­born. One study cited by the Guttmach­er In­sti­tute, a re­search group that sup­ports abor­tion rights, es­tim­ated that more than 4,000 wo­men were denied abor­tions in 2008 be­cause of gest­a­tion­al age lim­its and were forced to carry un­wanted preg­nan­cies to term. Most of the wo­men said they were delayed by the costs of abor­tion, in­sur­ance prob­lems, and lack of ac­cess to med­ic­al care.

The 20-week abor­tion ban that passed the House in June did not in­clude an ex­cep­tion for fetal ab­nor­mal­it­ies. Three months later, the House voted to slash $40 bil­lion over the next dec­ade from the food-stamp pro­gram; nearly half of the pro­gram’s re­cip­i­ents are chil­dren.

“However you feel about abor­tion, you can an­ti­cip­ate high­er costs if you pre­vent it, and I don’t think states are pre­pared to deal with that,” says Dean Baker, cofounder of the non­par­tis­an Cen­ter for Eco­nom­ic and Policy Re­search. “If these states aren’t pre­pared to in­crease fund­ing for Medi­caid and for chil­dren with dis­ab­il­it­ies, someone is go­ing to suf­fer.”

ANOTHER PATH

Arkan­sas law­makers nev­er got to hear Ab­bey Sanders’s story be­fore they passed the 20-week ban. She wasn’t ready to speak pub­licly earli­er this year. Le­gis­lat­ors heard an equally emo­tion­al story, however, from the bill’s spon­sor, state Rep. Andy May­berry, and his wife, Ju­lie, at a key House com­mit­tee meet­ing — a story that had a pro­foundly dif­fer­ent out­come.

Ju­lie May­berry de­scribed her­self as a former abor­tion-rights sup­port­er who be­came a born-again Chris­ti­an after mar­ry­ing Andy 16 years ago. “I had a hus­band who prayed for me,” ex­plained the at­tract­ive former tele­vi­sion broad­caster in an in­ter­view. She was 19 weeks preg­nant when they were told their baby had spina bi­fida, an open­ing in the spin­al cord that can cause severe phys­ic­al and men­tal dis­ab­il­it­ies. As the doc­tor ex­plained their op­tions, Andy and Ju­lie stopped him be­fore he got to abor­tion. They wouldn’t con­sider it.

“Without chal­lenges, we don’t have cham­pi­ons, and if you abort these ba­bies be­fore they even have the right to life, you have not giv­en the op­por­tun­ity for all of us to see what God had planned for this child,” Ju­lie tear­fully told the House com­mit­tee in Janu­ary. “Some of those, un­for­tu­nately, it will end up that that child may die, but that’s when God says I’m ready to take this child home with me. It gives clos­ure to those fam­il­ies when they give birth to these ba­bies and they see them and they can hold them and they can have a prop­er buri­al for them.”

The couple held a joint press con­fer­ence one month ago to an­nounce his cam­paign for lieu­ten­ant gov­ernor and her cam­paign to suc­ceed him in the Sen­ate. She runs a non­profit that of­fers dance and mu­sic classes for kids with dis­ab­il­it­ies, while he serves on the board of Arkan­sas Right to Life.

Their daugh­ter Katie is now 11. She’s in a wheel­chair and faces myri­ad health prob­lems that have war­ran­ted 16 sur­ger­ies. She’s also a former Little Miss Wheel­chair Arkan­sas, a straight-A stu­dent, and a mem­ber of her church youth choir. They have three oth­er daugh­ters, ages 14, 9, and 7.

“I think every life has value, and I be­lieve it is the gov­ern­ment’s re­spons­ib­il­ity to stand up for the most de­fense­less and in­no­cent among us,” says Rep. May­berry, sit­ting next to his wife in a booth in the state Cap­it­ol’s cafet­er­ia. He said the gov­ern­ment also has an ob­lig­a­tion to provide a safety net for poor and dis­abled chil­dren once they are born; he’s work­ing on pla­cing a nurse in every pub­lic school.

Un­like the Sanderses, the May­berrys were nev­er told that their baby was go­ing to die. Still, after hear­ing the story of Ab­bey Sanders’s preg­nancy, they main­tained that abor­tion is nev­er the right choice, adding that doc­tors are some­times mis­taken about a baby’s pro­gnos­is. ” ‘Value life and the mo­ments that you have with them, and make the most of it.’ That’s what I would be telling that moth­er,” Ju­lie says. ” ‘Turn this around. Are we go­ing to look at a glass and say it’s half empty or half full? I like to ex­pect mir­acles.’ “

The Sanderses are just as cer­tain about the choice they made as the May­berrys. Ab­bey and Kyle are look­ing for­ward to hav­ing an­oth­er baby, and there’s little chance of an­oth­er rare, chro­mo­somal de­fect. But Ab­bey is clear about one thing: She will not get preg­nant again in Arkan­sas. The couple won’t try again un­til Kyle’s re­as­sign­ment to Col­or­ado goes through. Start­ing a fam­ily will have to wait.

What We're Following See More »
STAFF PICKS
What the Current Crop of Candidates Could Learn from JFK
1 days ago
WHY WE CARE

Much has been made of David Brooks’s recent New York Times column, in which confesses to missing already the civility and humanity of Barack Obama, compared to who might take his place. In NewYorker.com, Jeffrey Frank reminds us how critical such attributes are to foreign policy. “It’s hard to imagine Kennedy so casually referring to the leader of Russia as a gangster or a thug. For that matter, it’s hard to imagine any president comparing the Russian leader to Hitler [as] Hillary Clinton did at a private fund-raiser. … Kennedy, who always worried that miscalculation could lead to war, paid close attention to the language of diplomacy.”

Source:
STAFF PICKS
Maher Weighs in on Bernie, Trump and Palin
1 days ago
WHY WE CARE

“We haven’t seen a true leftist since FDR, so many millions are coming out of the woodwork to vote for Bernie Sanders; he is the Occupy movement now come to life in the political arena.” So says Bill Maher in his Hollywood Reporter cover story (more a stream-of-consciousness riff than an essay, actually). Conservative states may never vote for a socialist in the general election, but “this stuff has never been on the table, and these voters have never been activated.” Maher saves most of his bile for Donald Trump and Sarah Palin, writing that by nominating Palin as vice president “John McCain is the one who opened the Book of the Dead and let the monsters out.” And Trump is picking up where Palin left off.

Source:
×