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Is Nebraska’s Fetal Pain Bill Cruel?

After teaching the principle of double effect last week, I had a student approach me this Thursday questioning whether inducing labor in Danielle Deaver’s case would qualify.  My student said he was “really disturbed that doctors wouldn’t induce labor for a woman when both her and her unborn child were experiencing such severe suffering. It seems cruel.”

Until my student brought it to my attention, I had not heard of Danielle Deaver, the woman who the Nebraska State Paper reports was forced, due to the state’s new abortion law, to “live through ten excruciating days, waiting to give birth to a baby that she and her doctors knew would die minutes later, fighting for breath that would not come.”

Nebraska recently enacted legislation that made abortion illegal at 20 weeks after gestation, citing evidence that at 20 weeks, the fetus can feel pain.  According to the Deaver’s interview with Planned Parenthood, Danielle was 22 weeks along when her water broke.  Danielle reports that doctors told her that even if it were possible to carry the baby to term, she would likely be born without functioning lungs and with contractures due to the fact that the uterus, without amniotic fluid, was pushing on the baby.  Her physician, Dr. Todd Pankcatz, confirmed with the Des Moines Register that the Deaver’s did in fact request an abortion, but that due to the new law, he risked five years in prison and a $10,000 fine if he complied with her request to terminate the pregnancy.   Danielle reflects,

“At what point do we go from being good parents and doing everything we can do to save our baby, to being selfish and putting our baby through essentially torture when they were born if they couldn’t breathe or they couldn’t move. . . the odds of bringing a baby home that had any heartbeat were small and a baby having any sort of life were non-existent.”

Danielle and her husband asked if the doctors could induce the labor.  The doctors explained that the only way they could induce labor was if the baby was already dead.  Danielle goes on:

“What was the point?  What was the point of maintaining a pregnancy that was going to end badly. . . It was so awful to sit and wait.”

While it important to realize how tragic this case is, it is disturbing that the story is being reported as if it were unconscionably cruel for a law to prevent the Deaver’s from procuring an abortion, despite the incredibly poor diagnosis of the baby.  The key to the story, however, is its ending.  Just over a week after requesting an abortion, Danielle gave birth to a baby–her daughter–who was breathing, whose heart was beating, who had ten fingers and toes.  And who died in the arms of her mother and father.

A few months ago, William Saletan wrote an article entitled “Abortion Common Ground: A Pro-Choice Agenda” in Slate in which he argued that pro-choicers need to reconsider the legality of second-trimester abortions.  He quoted historian David Garrow who claimed he was “not morally capable of having a discussion that doubts women’s fundamental right of access [to abortion] up through at least 12 weeks” but was “perfectly willing to discuss everything about [weeks] 12 through 22.”  Saletan writes,

After the conference, pro-lifers assailed Garrow for disrespecting them. They ignored his remarks about the second trimester, which represented by far the most significant offer from anyone on the pro-choice side. They should take him up on it, and pro-choicers should think seriously about following his lead.

Nebraska’s Fetal Pain Bill bans abortion after 20 weeks on the relatively controversial basis that preborn babies can begin to feel pain at this point.  What is not controversial is that Danielle Deaver gave birth, not to a fetus, but to a baby.  The tragic circumstances surrounding her pregnancy do not change the fact that her baby’s humanity was undeniable.  Nebraska’s law is in place as a reminder that her baby’s dignity, and all the rights attached to that dignity, must also not be denied.  Foremost among these rights is the right to her own life, the right to not be killed.

But this brings me back to my student’s original question, which I think indicates that he is beginning to grasp the import of the principle of double effect(!)  If Danielle Deaver’s  doctors wanted only to induce premature labor and not perform an abortion (an intentional act to cause the death of the baby), could this have been justified under the principle of double effect?  For those unfamiliar, the principle of double effect is a moral principle that applies when an action has two consequences, one good and one evil.  In order for the principle to apply, a number of conditions must be in place:

–the object of the act itself must be morally good
–the evil end must be only foreseen, not intended (in other words, the evil act cannot be chosen as a means to a good end)
–the good end must be equal or in greater proportion to the foreseen evil effects

The classic example of the principle of double effect is the case of an ectopic pregnancy when the fetus has implanted in the fallopian tube, endangering both the life of the mother and the life of the fetus.  In such cases, the inflamed section of the fallopian tube may be removed, thus resulting in the death of the fetus but also saving the mother’s life.  This would be justified under the principle of double effect because the death of the fetus was an unfortunate consequence of an action with a different object, namely, removing the inflamed tube, and the good (saving one life) definitely outweighs the evil (losing two lives).

Theoretically, an induced labor in Danielle Deaver’s case could be justified under the principle of double effect.  The object of the act is inducing the labor, with the foreseen but probable unintended consequence of resulting in the death of the baby.  It is not clear, however, that the good would outweigh the evil.  The good would presumably include less psychic turmoil for Danielle, but it is unclear what further good could be added to the equation in comparison to the way the pregnancy actually ended a little over a week later. An induced labor saves nobody’s life and does little to ease or prevent suffering. Danielle would still have to mourn the loss of her daughter, just a few days earlier. In fact, an induced labor could have resulted in more evil than good by precluding the possibility that the baby could reach a healthy stage of viability (this website is dedicated to such “miracle” instances).   An induction in Danielle’s case does not seem to me proportionate. The good does not clearly outweigh the evil.

More importantly, the principle of double effect should really only be used in extreme circumstances, when there are no alternative actions that are less morally questionable.  In the case of the ectopic pregnancy, the mother’s life is in danger.  In Danielle’s case, her life was not in danger.  She was not in any extreme pain.  It does not seem that the baby was suffering in any way that would have been solved by inducing labor.  The less morally-questionable course of action seems to be exactly what the doctors and the Deavers did—wait it out and see what happens.

It is important to reemphasize how tragic this case is.  Most of us cannot imagine how Danielle must have felt when her water broke, when she realized she would have to continue carrying the pregnancy, and when she held her dying daughter in her arms.   In debating this case, it is important that we do not judge the Deavers.  But it does seem to me that the new law in Nebraska did exactly what it was supposed to do.  It protected the dignity of Danielle’s baby and reminded us all that at 22 weeks, what is in question is not a fetus, but a person.

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14 Comments

  1. I respectfully disagree that this law led to a just resolution of a problem confronted by a woman who was 22 weeks pregnant. It is a pious dodge to claim that “the dignity of the baby” was protected and that we were “reminded” that one is a “person” not a fetus at 22 weeks. In what sense might the “dignity” of a 22 week fetus have been protected? The claim that it is a person rests on unresolved and unprovable assumptions — even the ascription of “pain” at this stage is problematic. Whether pain is “experienced” as a reflective, thinking and inter-active being with other persons is the question, not whether an autonomic, touch-response has been noted. The moral issue in pain is whether one is able to reflect on its meaning, which is certainly impossible at 22 weeks.
    The issue that is certain and undeniable in this case is that a woman is humiliated and her dignity to decide have been denied. She is the person at stake in this case, not the fetus, and all the moral calculus in the world dealing with whether this qualifies under the indirect harm rule will not change the brutal moral facts. She has no say in the matter, and that in spite of the fact that the fetus is destined to die. The moral imperative dictated by her own sense of values and her love for the person she is nurturing into being, were given no standing. She was humiliated by having an alien and woman-as-person-denying theology imposed on her and denying her standing before God to have any say in the disposition of this case. A major injustice was done in this case and people who understand the difference between women as persons and fetuses as potentially persons will recognize it for what it is. She is unquestionably and undeniably a person with rights to bodily integrity and charged with responsibility for reproductive powers. She is the one responsible for the well-being for the child-to-be or to decide the circumstances under which she can responsibly decide to terminate a tragic pregnancy. Her humiliation will serve no good except to underline the power of the physician and the judge to deny her any meaningful standing as a person with Constittutional and religious protections.

    • Paul,
      Thanks for your response. I don’t know if Danielle would agree that the child she held in her arms was not a person. She does agree that she should have had more say in the matter, but I would bet she would argue against you that despite her disagreement with the law, her child was still a person. There are cases of infants surviving at 20 weeks. Would you say that such infants somehow develop personhood at some point after birth? More generally, what does constitute personhood for you? I do think that personhood is, as you say, “unresolved and unprovable,” as JPII asserted in Evangelium Vitae. Personhood is a philosophical, not scientific concept. Nevertheless, I have trouble denying the personhood of a baby, even a very small one, which might even be violable with medical intervention (not that I would have supported medical intervention in this case).

  2. Thank you for this thoughtful reflection. It is important to mention again that the choice that the media proposed–abortion or the actual outcome–is a choice regarding D&E abortion or maybe a lethal injection. This procedure, which I will not describe here but can be googled, can in no way be described as helping the child or reducing pain. For parents to claim, as the media seems to describe they were claiming, that it was their right to order a D&E, is at best very troubling. Present people with the choice between what actually happened, and a D&E in full color, and the law will no longer seem uncompassionate. It only seems compassionate if they don’t define what the abortion side of the choice really is–its object, as you might say.

    • Thanks, Bonaventure, although I think the abortion in question in this case was not a D&E (which is indeed gruesome) but rather more of a euthanizing technique like an injection to the heart. The idea would be to save the baby any pain that it might feel IF it felt pain (and the jury is still out on that one).

  3. Beth says: “But it does seem to me that the new law in Nebraska did exactly what it was supposed to do.”

    Since the premise of the law is that fetuses are capable of feeling pain at 20 weeks, and since that is not an established scientific fact, it is unclear to me how it can be said that the law did exactly what it was supposed to to? What is the purpose of the law? It is unclear to me whether it is intended to prevent fetal suffering, or whether it is intended to establish the stage at which a fetus feels pain as the stage at which the state has an interest in protecting fetal life (no matter how much suffering that may entail). In any case, as the law itself notes, anesthesia can be administered to a fetus. If the purpose of the law is to prevent the fetus from experiencing alleged physical pain from abortion, then why can a fetus not be anesthetized before it is aborted? And if the law is intended to establish the stage at which a fetus can experience pain as the stage where the state has an interest in protecting its life, what if further scientific investigation establishes that pain cannot be experienced until much later in pregnancy?

    It may be that the morally correct thing was done because of the law, but I don’t see how it can be said that the law did exactly what it was supposed to do. The law would have allowed an abortion at 19 weeks, so I can’t see how the law can be a good law from the point of view of those who believe that life (and personhood) begins at conception. It is a good law, it seems to me, only in the eyes of those who view any restriction on abortion, no matter what the rationale, to be a good thing.

    • Good points, David. Let me qualify: the law did what the spirit of the law was intended to do. The fetal pain bill in Nebraska and in other states uses the possibility that fetuses feel pain to argue that they are persons and deserve protection under the law. The purpose of the law, then, is to extend the rights of persons to babies in the womb. The law is not intended to preserve the fetus from pain (thus possibly allowing abortion after anesthetization), but rather to say that because the fetus might feel pain, it should not be killed in the first place. And you’re right, it is a good law to me because I do think that its purpose and spirit is good. A baby that is possibly violable, that you can hold in your arms and cuddle, that has a heart and lung and brains and eyelashes, does seem to me something that our laws should protect.

  4. Dear Beth:

    Great response.

    What if we”spiced”it up a bit.
    What if Danielle was going to die if she were to carry full term as in the case recently in Arizona? Would separation of the placenta qualify for double effect if that was the case? I myself postulated removal of the uterus to prevent hypertension would qualify as double effect.
    What’s your opinion?

    Thanks

    • Hi Dale,
      Great question. I would say that the principle of double effect requires that the evil not be used as a means to a good end. As such, a direct abortion would still be in violation, although inducing labor in the case of an immediate threat to the life of the mother would indeed qualify. I would go so far as to say if the threat to her life was grave enough, a hysterectomy, as you propose, would also be justified, whereby the object of the act is neutral and the evil is foreseen, but not intended. I am on the fence about separation of the placenta. I haven’t thought very carefully about that but I would be interested in others weighing in.

  5. As a physician who often finds herself in a minority among her professional peers in terms of opinions on moral reasoning and spirituality/faith AND among Catholic peers as well, this post was so helpful. I appreciated the refresher on double effect, the real-life story that made those principles come alive and become concretely understandable, and the articulation of a position often marginalized by the militant rhetoric of pro-choice advocates who have already judged ANYONE with even a hint of a pro-life inclination as reprehensible, intellectually inferior, and undeserving of a voice. Thanks for this, and thanks to all the contributors here for this new resource.

  6. I don’t know how Bonaventure (or anyone, for that matter) can measure the physical suffering a 22-week-old fetus experiences from an abortion compared to two weeks in the mother after her water has broken, a birth, and 15-minutes of dying. If abortion were wrong because the fetus suffered pain, then all that would have to be done to make it right would be to anesthetize the fetus (assuming it can suffer at all, which is doubtful). It is difficult to imagine anyone who was not already firmly opposed to abortion agreeing to prohibit it on the grounds of fetal pain. When I think of some people I have lost who died deaths of prolonged suffering and even agony, I have to think that being aborted is one of the quickest, least painful ways to die (if pain can be experienced at that stage of development at all). That does not in any way make it right, but the idea that abortion is wrong because of the suffering of the fetus makes little sense to me.

  7. I have 2 concerns about the comment in the article “The good would presumably include less psychic turmoil for Danielle, but it is unclear what further good could be added to the equation in comparison to the way the pregnancy actually ended a little over a week later. An induced labor saves nobody’s life and does little to ease or prevent suffering.”
    First, it seems to take very lightly the significance of a woman’s psychological health as a good, and
    Second, there is actually a risk of maternal illness and death when there is early rupture of membranes. So an induction could save a life, and maybe she was lucky she didn’t get sicker or a worse harm would have occurred. Since that is not necessarily predicatbal, we shouldn’t pass it off lightly as a potential life saving move.

    • Steven,
      Great thoughts and thanks for your input. I don’t mean to disregard the potential psychic turmoil in this case, nor do I want to undermine the importance of a woman’s psychological health. I do think that when weighing psychological health versus a life, it seems clear that the life takes precedence. Moreover, many people are unaware of the psychological trauma caused by abortion. Check out this BBC article:

      University of Oslo researchers compared 40 women who had had a miscarriage with 80 who chose to have an abortion.

      Miscarriage was associated with more mental distress in the six months after the loss of a baby – but abortion had a much longer lasting negative effect.

      The Oslo team found that, after 10 days, 47.5% of women who had miscarried suffered from some degree of mental distress compared with 30% of the abortion group.

      The proportion of women who had a miscarriage suffering distress decreased during the study period, to 22.5% at six months and to just 2.6% at two years and five years.

      But among the abortion group 25.7% were still experiencing distress after six months, and 20% at five years.

      The researchers also said that women who had an abortion had to make an effort to avoid thinking about the event.

      I think that counseling should be made available for such women like Danielle and others, but I don’t think that attention to psychological well-being need lead us to conclude that abortion is the solution.

      On your second point, I agree that that the rupture of membranes could potentially endanger the mother’s life, but what about just inducing labor at that point, rather than performing an abortion? If you induce labor, you don’t intend to kill the baby, though you foresee it is probable the child will die. Or am I missing some important medical procedural data that would preclude induction without a direct abortion? I am thinking of the Ethical and Religious Directives for Catholic Health Services #49: “# For a proportionate reason, labor may be induced after the fetus is viable.”

  8. Beth asks “I agree that that the rupture of membranes could potentially endanger the mother’s life, but what about just inducing labor at that point, rather than performing an abortion?”

    That is exactly how Ms. Deaver wanted to end her pregnancy — by induced labor. But the baby was not viable, and inducing labor on a nonviable baby is a form of abortion.

    FYI — The primary maternal risk of premature rupture of membranes (PROM) is sepsis, where the uterus becomes infected with bacteria. (A woman whose membranes have ruptured prematurely continuously leaks amniotic fluid; this puts her at greater risk for infection than a woman carrying a healthy pregnancy.) From the uterus, bacteria can enter the bloodstream, causing septic shock. The death rate from septic shock is about 40%.

    Also, when membranes rupture prematurely, labor usually spontaneously occurs within two weeks. When PROM occurs more than two weeks before viability, (Pre-PROM) the only practical effect of refusing to allow induced delivery is to delay a miscarriage.

    According to reports, because Ms. Deaver did not show signs of infection. When she requested induction, her doctor and the lawyers at her hospital refused, because they decided that her risk of sterility or death did not meet the standard set by the Nebraska law.

  9. I’m unsure of how the baby’s dignity was preserved in this case. Her personal doctor concluded that inducing labor was necessary to prevent maternal infection and fetal pain. Instead, the doctor was bound by a ridiculous law that intercedes in medical care — and subsequently, the baby was forced to suffer for another week, without the cushion of amniotic fluid to protect it from uterine contractions.

    This is not to say that I am convinced a fetus can feel pain between 22 and 24 weeks, but that it seems awfully hypocritical to insist a fetus can be in pain during an abortion at this time while preventing a doctor from freeing a baby from pain and a prolonged death.

    And I’d like to remind everyone that just because a baby has a head, arms, legs, 10 fingers, and 10 toes…. well, that doesn’t necessarily mean it is truly viable. I myself suffer from a birth defect that causes me great physical pain — agony, on some days — and I often wish my mother had been able to have access to genetic testing on me as a fetus. In the quest for preserving life and dignity, we must remember to keep in mind the future potential for pain and suffering of a person. I can tell you firsthand that once a person with disabilities reaches adulthood and are no longer a cute baby or child, the willingness of doctors to do surgery and fix the problems is very low.

    Just a perspective from the other side of the looking glass.

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