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.