By Stephanie Hauer
CHIEF JUSTICE BURGER: Do you make any distinction between the first month, and ninth month of gestation?
MRS. WEDDINGTON: Our statute does not.
In 1973, when Roe v. Wade was in trial, some knowledge about fetal development was readily available. Sarah Weddington, representative of Jane Roe, chose to ignore this science in her advocacy for legal abortion protection. In the forty-five years since, however, science has made progress that we cannot ignore. With each study, individuals learn more about the miraculous process of human development that begins at conception. Medical developments and scientific advancements continue to reaffirm that life begins at conception.
When Roe v. Wade was settled by the Supreme Court, it established that the fetus was considered viable during the third trimester, or week twenty-eight. This was the commonly held medical belief at that time. The Supreme Court decided that states could have the most freedom to regulate abortion during this stage, though abortion still could not be outlawed completely. In recent years, the threshold for viability has been demonstrated to be significantly earlier than the beginning of the third trimester. In fact, most scientists now agree that viability is achieved at twenty-four weeks, though some premature babies can survive when born as early as twenty-two weeks.
A joint workshop by the Eunice Kennedy Shriver National Institute of Child Health and Human Development, the Society for Maternal-Fetal Medicine, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists released a summary document in 2014. It stated that babies should be considered viable outside the womb once they reach twenty-three weeks, because a quarter of premature babies born at this age survive when given intense medical intervention and treatment. (1) Some babies born at twenty-two weeks also survived, with or without lasting impairments. (2)
Studies have shown that at twenty weeks, babies can feel pain. That is why an anesthesia clinical review book published in 2015 highlighted the importance of fetal anesthesia for babies going through in-utero surgery. “The fetus is able to mount a physicochemical stress response to pain starting around 18 weeks of gestation.” (3) Administering anesthesia for babies of twenty weeks who are undergoing in-utero surgery is common and standard practice in the medical field, because babies have developed all of the nerve endings, brain segments, neurotransmitters, hormones, and signals necessary to feel pain. (4)
19 states ban abortion after 18 weeks, except to save the life of the mother. If abortion at this stage is permitted, the procedure is extensive. The first step is to inject the baby with a drug that will stop their heart. The baby will panic in the womb and move any way they can in a desperate attempt to avoid the incoming needle. Such movements have been captured through ultrasounds.
Ultrasounds have also led to positive moments of watching babies, like when Jen Cardinal and her husband watched their fourteen-week old clap along to music. Babies are usually able to hear their first sounds somewhere between 16 and 18 weeks. It seems that what they hear in the womb can influence them later in life. Researchers in Finland found that babies had more advanced language recognition skills if they listened to made up words before birth.
By eighteen weeks of development, a baby has made many advancements. They can suck their own thumb and yawn. They have been able to open and close their fists since the third month. At six weeks, their heartbeat was first detectable, marking another significant point of development for the fetus — but perhaps the most exciting point of development is the moment of conception.
At conception, studies have shown that when the sperm and the egg meet, a flash of light can be observed. This flash occurs when the sperm triggers a surge of calcium that causes the egg to release some zinc. This zinc binds with small molecules and gives off light. “All of biology starts at the time of fertilization, yet we know next to nothing about the events that occur in the human,” said Professor Teresa Woodruff of Northwestern University. She was very excited about the groundbreaking nature of this observation: “It was remarkable… to see the zinc radiate out in a burst from each human egg was breathtaking.”
This flash can only be observed in a lab setting with a specific chemical medium, but it still illustrates an important moment in the development of a human. We know that life begins at conception. When the sperm fertilizes the egg, it creates a unique organism with distinct DNA from the parents that grows and develops as its own entity. That delicate human being grows in symbiosis with the mother, but they are a separate organism from the mother. They are unique, they are alive, and as a human person, they deserve protection.
Even the courtroom of Roe vs. Wade knew that an unborn person deserves the right to life.
Justice Stewart: “If it were established that an unborn fetus is a person, with the protection of the Fourteenth Amendment, you would have an almost impossible case here, would you not?”
Mrs. Weddington: “I would have a very difficult case.”
Justice White: “Well, if you’re correct that the fetus is a person, then I don’t suppose you’d have --- the State would have great trouble permitting an abortion, would it?”
Mr. Flowers [representative of Henry Wade] : “Yes, sir.”
At the time of this conversation, scientific evidence showed that a baby could survive outside of the womb at 28 weeks. However, they chose to ignore this threshold, and ignore the personhood that is inherent to a human being regardless of age. This idea that a person only becomes valuable and protectable when they are born is discriminatory exclusion not based in scientific reasoning. Instead, it is an arbitrary distinction set by outdated notions of understanding.
Since January 22, 1973, science has made constant progress. We know more now about the development of babies in the womb, and we have learned more about how to care for their health. Babies born as early as twenty-two weeks have a fighting chance at life when given the proper medical attention. In addition, the moment of conception is a dramatic miracle, and it sets in motion an exciting process full of developmental milestones and growth for the preborn. Science agrees that the fetus is a person, and reaffirms that with each new study. With this ever-growing body of knowledge on our side, we can continue to advocate for our siblings in the womb with clarity and confidence.
(1) Matthew A. Rysavy, et al., “Between-Hospital Variation in Treatment and Outcomes in Extremely Preterm Infants,” New England Journal of Medicine 372, 1801-181 (2015): 10.1056
(2) TNK Rajo, et al., “Periviable Birth: Executive Summary of a Joint Workshop by the Eunice Kennedy Shriver National Institute of Child Health and Human Development, Society for Maternal-Fetal Medicine, American Academy of Pediatrics, and American College of Obstetricians and Gynecologists.” Journal of Perinatology 34 (2014): 333–342, 10.1038/jp.2014.70.
(4) Linda S. Aglio, Robert W. Lekowski, and Richard D. Urman, eds., Essential Clinical Anesthesia Review: Keywords, Questions and Answers for the Boards (Cambridge: Cambridge University Press, 2015).
This article originally appeared in Volume 7 Issue 1 of Life Matters Journal.