Fetal viability

“ We have seen that after the first month of pregnancy the placenta serves the fetus as a combined respiratory and digestive apparatus, not alone in supplying the oxygen and nourishment requisite for life and growth, but also in excreting the broken-down products of fetal life. ”

“ The most obvious problem with any such argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the state of neonatal care at a particular point in time. Due to the development of new equipment and improved practices, the viability line has changed over the years. In the 19th century, a fetus may not have been viable until the 32d or 33d week of pregnancy or even later. [51] When Roe was decided, viability was gauged at roughly 28 weeks. See 410 U. S., at 160. Today, respondents draw the line at 23 or 24 weeks. ”

“ GROWTH AND PHYSIOLOGY OF THE FETUS Although the fetus at term is in many respects simply a diminutive, immature man, or woman, its anatomy and physiology present certain characteristics which have adapted it to a protected existence in a sac of fluid. Some of the fetal structures and functions become increasingly active after birth, while others subside and disappear. ”

“ Compare Brief for Scholars of Jurisprudence as Amici Curiae 12–14, and n. 32 (emphasis deleted) (“ ‘a quick child’ ” meant simply a “live” child, and under the era’s outdated knowledge of embryology, a fetus was thought to become “quick” at around the sixth week of pregnancy) , with Brief for American Historical Association et al. as Amici Curiae 6, n. 2 (“quick” and “quickening” consistently meant “the woman’s perception of fetal movement”) . We need not wade into this debate. ”

“ The substantiality of this interest is in no way dependent on the probability that the fetus may be capable of surviving outside the womb at any given point in its development, as the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant. ”

“ In every pregnancy the placenta serves in this way as an organ of nutrition, arranging for the passage of food from the mother's blood to the fetal circulation. Occasionally, it is interesting to observe, the placenta performs a very different function, namely, the protection of the unborn child from diseases that may attack the mother. It is able to afford such protection, because the coating of the villi is not permeable to all sorts of substances. In order to pass through their walls, material must be in solution ”

“ A new human being is the ultimate result of conception, but the chorion, amnion, placenta and umbilical cord must also be created to serve as aids in building and protecting the developing child during its uterine life. The part played by these accessory structures is so vital, in spite of being temporary, that it will be well for us to look into their origin and functions before considering the fetus itself which they serve. ”

“ The experience of ages has firmly established the fact that the fetus is expelled when ready to enter the world, or as we say, when it has become mature. But how does the fetus assert its maturity? There is the kernel of the matter; that is the real problem, a problem for the solution of which, happily, we possess better facilities than have heretofore existed. One solution that has been suggested assumes that the fetus loses ultimately its power to assimilate the nourishment provided through the mother's blood. ”

“ The obstetrical forceps have been of such great service in diminishing the number of still-born infants that they were once called the child's instrument. The need of its employment in behalf of the child may be determined by careful observation of the fetal heart-sounds, which are heard over the mother's abdomen, and by means of which one may learn the condition of the child. Signs of danger are extremely uncommon so long as dilatation of the womb is not complete, for any strain which labor may impose upon the child will usually occur during its passage through the pelvis. ”

“ There is also considerable evidence that D&X reduces the risk of retained fetal tissue, a serious abortion complication that can cause maternal death, and that D&X reduces the incidence of a 'free floating' fetal head that can be difficult for a physician to grasp and remove and can thus cause maternal injury. ”

“ The fact, therefore, is now scientifically established that the embryo from the first moment of conception or fecundation is a human being, having a human immortal soul.
II. Now we come to the direct study of abortion. Abortion, or miscarriage, strictly means the expulsion of the fœtus before it is viable, i.e., before it is sufficiently developed to continue its life outside of the maternal womb. The period of arrival at viability is usually after the twenty-eighth week of gestation. ”

“ By mandating tests to determine fetal weight and lung maturity for every fetus thought to be more than 20 weeks gestational age, the statute requires physicians to undertake procedures, such as amniocentesis, that, in the situation presented, have no medical justification, impose significant additional health risks on both the pregnant woman and the fetus, and bear no rational relation to the State's interest in protecting fetal life. ”

“ The comparative growth of the fœtus infinitely surpasses that of its whole future existence. But the exact age of uterine embryos, and of abortives, is, in some degree, conjectural. Before the seventeenth day after conception, its rudiments are not even visible to the naked eye: the glary ovum has then slidden down from the ovarium, through one of the lateral tubes into the womb. The size of an abortion, comprehending the fœtus, its membranes, waters, and placenta, at the end of six weeks, does not exceed in size that of a pigeon’s or hen’s, and in three months, a goose’s egg. ”

“ For this reason, meconium stained fluid escaping during labor in a head presentation may be taken as an evidence of imminent asphyxiation, due to an interruption of the umbilical circulation.
The head is the most important part of the fetus, from an 89obstetrical standpoint, since the process of labor is virtually a series of adaptations of the size, shape and position of the fetal skull to the size and shape of the maternal pelvis. And since the pelvis is rigid and inflexible the adjustment must all be made by the fetal head, which is mouldable because of being incompletely ossified at birth. ”

“ When the contraction is such that a living fœtus cannot be brought forth, the accoucheur has then to choose between the Cæsarean section or miscarriage.
During pregnancy, abortion will present an extreme and last resource. And it would seem more humane to sacrifice, before the period of viability, an embryo whose existence is so uncertain, in order to protect the mother from the perilous chances of symphyscotomy and the Cæsarean section. ”

“ Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mothers womb, albeit with artificial aid. ”

“ The danger to the mother is from hemorrhage before the expulsion of the embryo, and from retention of membranes after the fetus is born. These decaying in the uterus, the poison is absorbed into the system and septicæmia is the result.
The causes of abortion, both remote and exciting, [Pg 244] are numerous. Any diseases of the womb that take away its vitality or prevent its enlargement will result in death of the fetus. Any general disease or condition of the system that results in weakness or feebleness may make the continuance of life in the embryo impossible. ”

“ In case pregnancy has occurred before the deformity is discovered, and it is then found that a full grown child cannot be born, premature delivery must be brought on; or, in other words, the Uterus must be made to expel the child before the full term, while it is yet small enough to pass through the Pelvis. This operation is of course only allowable when needed to preserve life, or to escape great suffering and danger. ”

“ There may be an abortion, when the fetus and membranes are partly or completely extruded from the fimbriated end of the tube into the peritoneal cavity; or a rupture of the tube, when the fetus, with or without the membranes, may be expelled into the peritoneal cavity, or between the folds of the broad ligament. If the greater part of the placenta remains attached to the site of its development, in the case of a ruptured tube, it is possible for the fetus to live and grow and even go to term. ”

“ It is scarcely probable that any woman lives through the ten months of pregnancy without seeing, hearing or thinking things that would disfigure a baby if maternal impressions could produce such results, and yet newborn babies are very rarely blemished. Although the ultimate causes of marks and deformities of the fetus are not definitely known, they are probably to be found in faulty development very early in the embryonic life, and, therefore, are not preventable. ”

“ None the less, bleeding, however moderate, should always excite suspicion, as we know it usually denotes the breaking to some degree of the connection between mother and child. The extent of the separation usually determines the degree of the hemorrhage, which in turn indicates the seriousness of the accident. The fate of the fetus will depend upon the area of placenta, which has been incapacitated. Flooding, however, always imperils the fetus, and generally warrants the inference that so much of the placenta has been separated as to render further development impossible. ”

“ When the placenta is examined, it is found that certain changes have taken place in its structure which interfere with the circulation of the blood through the placenta, and may indirectly bring about the death of the fetus. The child is also subject to the same toxic conditions which the mother has had and may die from failure of the liver and kidneys or in convalescence. ”

“ Abruptly setting aside the construction of § 188.029 adopted by both the District Court and Court of Appeals as "plain error," the plurality reads the viability testing provision as requiring only that, before a physician may perform an abortion on a woman whom he believes to be carrying a fetus of 20 or more weeks gestational age, the doctor must determine whether the fetus is viable and, as part of that exercise, must, to the extent feasible and consistent with sound medical practice, conduct tests necessary to make findings of gestational age, weight, and lung maturity. ”

“ The Ovum.—Pathological changes of the ovum itself, of the embryo, of the surrounding membranes are less frequent as primary causes of abortion, and they are of less importance to the practitioner as being in no way amenable to treatment. When they do occur they usually lead to expulsion in the earlier months.
Those conditions liable to lead to abortion are especially diseases of the [p. 490] chorion, placenta, and umbilical cord, rarely of the amnion, the embryo itself, or the amniotic fluid. ”

“ Certain abnormalities of the developing fetus are inconsistent with life, and are, therefore, a frequent cause of abortion. Dr. Mall, of Johns Hopkins University, showed after years of investigation that at least one-third of the embryos obtained from abortions were malformed and would have developed into monstrosities had they lived to term. It is often a great comfort to the expectant mother who loses her baby early in pregnancy to realize that had she carried her baby to term it might have been a monster, and that, therefore, she has not lost a beautiful, normal child. ”

“ As the change of life is approached, the activity of the sexual organs, their nutrition, the blood-supply, and especially the healthy activity of the mucous membrane, are lessened, and hence the growth of the ovum is endangered; but the condition of the nervous system at this period certainly has an equally powerful influence in producing the tendency to abortion. ”

“ That the embryo probably lives in utero in virtue of its own life-principle, even through the entire period of gestation, (51, 56, and 58,) is rendered probable by many facts related by unimpeached authorities, which go to prove that when the whole intact Ovum has been expelled at an advanced period of gestation, or at the natural termination of that period, the fœtus has continued to live, and the circulation of the blood has not ceased for an instant during a space of time of from nine minutes to a quarter of an hour. ”

“ Again, the amniotic fluid prevents injuries that might otherwise befall the child in case the mother wears her clothing too tight. Harmful as the practice of tight-lacing during pregnancy is, it does not, thanks to the presence of the amniotic fluid, result in the disfigurement of the child. For the same reason a blow struck upon the abdomen, as in a fall forward, is not so serious as might be thought, since the fluid, not the child, receives the force of the impact. Some physicians believe that the fetus swallows the amniotic fluid and thus secures nourishment. ”

“ An induced labor was performed when ultrasound examination in the 32nd gestational week showed fetal demise and delivered a female fetus with a weight of 930g and signs of microcephaly and arthrogryposis. ”

“ The general assembly finds that the method or technique of abortion known as saline amniocentesis whereby the amniotic fluid is withdrawn and a saline or other fluid is inserted into the amniotic sac for the purpose of killing the fetus and artificially inducing labor is deleterious to maternal health and is hereby prohibited after the first twelve weeks of pregnancy. ”