Texas’ Bill Would Ban Abortions at the Time Testing Reveals Fetal Defects

Health and medicine explained.
July 11 2013 5:06 PM

Who Has an Abortion After 20 Weeks?

That’s right when my patients find out about devastating fetal defects.

Abortion rights activists demonstrate outside the floor of the House after the HB2 bill restricting abortion rights passed in Austin, Texas July 9, 2013.
Abortion rights activists demonstrate outside the floor of the Texas House after HB2 passed on Tuesday. HB2 makes abortions after 20 weeks illegal.

Photo by Mike Stone/Reuters

The Texas House of Representatives this week passed HB2, a bill to prohibit abortions after 20 weeks of gestation. Many opponents of abortion may hope this means that all late mid-term fetuses in Texas would soon be carried to term and live healthy lives instead of being terminated. But lost was any discussion of why women might seek a late mid-term abortion in the first place—and the unintended, counterintuitive effects of a ban on such procedures, which might even increase the total number of abortions.

Abortions today are common. At current rates, it is estimated that roughly 1 in 3 women will have one by the time they reach 45 years of age—including in places like Texas. One important reason is that half of all pregnancies are unintended. The cause isn’t just unprotected sex; as I wrote last year in Slate, many forms of birth control are much less reliable than many women realize. For example, 5 percent of women on the pill still get pregnant each year.

Of the roughly 7 million American pregnancies each year, about 1 million end in abortion. However, almost all of the procedures are performed early in pregnancy. According to the Guttmacher Institute, only about 1 percent of abortions are performed after 20 weeks of gestation (a normal pregnancy is 40 weeks), which are those banned by the proposed Texas law.

Why do some women wait so long? The answer is that comprehensive fetal testing, such as anatomical sonograms and ultrasounds of the heart, are typically performed just before 20 weeks of gestation. Such scans are critical for uncovering major birth defects, such as anencephaly (severe brain malformations), major heart defects, missing organs and limbs, and other severe birth defects. Fetal development is a complex process that often goes awry. Roughly 2 percent of all pregnancies are complicated by a major birth defect, and of those about 0.5 percent have a chromosomal defect, such as an extra or missing segment of normal DNA. Birth defects are a leading cause of infant mortality, and in many cases of severe birth defects, no medical treatment can salvage a fetus’s life or result in any measure of normal future health.

Advertisement

I am a pediatric cardiologist and work in a tertiary care center specializing in high-risk pregnancies. When helping families cope with major birth defects, our medical team tries to educate families about the full range of choices available to them, including advanced treatments that can help many major birth defects. But we also are clear about the severe challenges that other fetuses may face as newborns, and the limitations of modern medicine. Many loving families choose to continue their pregnancies, and we do our best to help them in every possible way. But some families faced with severe fetal disorders—severe brain defects, entirely abnormal gut structures, devastating chromosomal problems—choose not to carry to term and request referral to an abortion provider.

It is hard to overstate the heartrending nature of these decisions and the amount of time and effort the care team spends on educating and supporting these families as they make very personal decisions. In our hospital, we have learned that almost no family characteristics predict who may choose termination; these families have origins in all parts of the world and adhere to many different religions. National data supports this anecdotal observation; for example, 30 percent of women having abortions self-identify as Catholic.

Now consider the numbers: Each year in Texas, about 400,000 babies are born, of whom 16,000 have a birth defect of some type, according to the state health department. Parsing the types of birth defects, roughly 700 have major brain defects (such anencephaly), and 600 have major chromosomal disorders (such as Patau syndrome), and the rest have a variety of other disorders. (Keep in mind that these are only the babies that were actually born.)

Over the same one-year period of time in Texas, about 85,000 women have an abortion, of which only about 1,000 are performed after 20 weeks of gestation. It is exceedingly difficult to know precisely why those late mid-term abortions occurred—no one documents exactly why a woman elects one.

But consider the fact that almost all major defects would be detected around 20 weeks, and that the defects are much more common than many people realize. In Texas, there are likely thousands each year. Thus, the data are very suggestive that many late mid-term abortions are not performed because a woman is using the procedure for routine birth control. It is likely that many women find that a severe, untreatable birth defect is present that was undetectable until halfway through the pregnancy. Those are the ones who could be henceforth banned by the proposed Texas law, which would require many women who want abortions instead to carry fetuses with severe defects to term.

Finally, consider the rational response of many women. If they cannot rely on routine, insurance-covered testing to assess for birth defects—reliable ultrasound pictures are present and paid by insurance only around 20 weeks of gestation—they may instead seek less reliable ultrasounds earlier in pregnancy, before vital structures are well formed and viewable. A perinatal specialist might tell women that a major defect is possible, but the data would be unclear. What would such a woman do if told there is a strong chance of a major birth defect, and that confirmatory testing reliably can’t be done in time to meet the 20-week deadline to elect termination? It is entirely possible that such a woman might not like the odds and abort a healthy baby.

In the end, restriction on late mid-term abortions may seem motivated by concerns about a healthy fetus; after all, the Texas bill was called the “Pain-Capable Unborn Child Protection Act.” But a closer look strongly suggests that no matter what the legislators do, some fetuses and families will still be faced with a great deal of misery.

Update, July 12, 2013: The Texas bill technically does contain an exception for fetuses with “severe fetal anomalies.” While on the surface this appears to provide a safeguard for the issues I discuss, Texas law defines such anomalies as “incompatible with life outside the womb,” which is a very nebulous standard. For example, defects resulting in long-term vegetative states (e.g. holoprosencephaly), severe bodily deformities requiring repeated high-risk and painful procedures with an extremely low chance of success (massive congenital diaphragmatic hernias), genetic abnormalities causing death and severe disability but with a tiny chance of longer life (Patau syndrome) could theoretically not be “incompatible with life.” Also of note, the U.S. House of Representatives passed H.R. 1797 in June, which also prohibits abortions after 20 weeks and this law contains no exception for any fetal abnormalities.

Darshak Sanghavi, a pediatric cardiologist, is a fellow of the Brookings Institution and Slate’s health care columnist. Follow him on Twitter.