Blake Boudreau was born early-very early. In their book Before Their Time: Lessons in Living from Those Born Too Soon, Ronald Hoekstra and Daniel Taylor tell of how Blake made his first appearance alarmingly ahead of schedule: The boy poked his foot through his mother's cervix at 20 weeks gestational age. "The baby's coming and there's nothing we can do," doctors told Marc and Leslie Boudreau. "It can't survive at 20 weeks, but we can't stop it."
But they did stop it, aided, say the Boudreaus, by a friend's fervent prayers. Physicians were able to coax the baby's foot back into Mrs. Boudreau's womb, then sew her cervix shut. But a severe infection quickly developed and doctors again warned the Boudreaus that the baby probably wouldn't make it.
But he did make it. Blake was born at 22 weeks, weighing only 19 ounces. During ensuing weeks of intensive neonatal care, Blake dodged every health bullet associated with severe prematurity, including blindness, brain-bleeds, and hearing loss. His mother summed up in a word the baby's health when he left the hospital: "perfect."
For pro-life activists, Blake's case is a perfect example of the need to protect the lives of fetuses at earlier stages of development. The point of viability, they say, is arriving ever earlier, and the law should reflect that.
Forty states and the District of Columbia have post-viability abortion bans that are currently enforceable, according to Americans United for Life. Some of those statutes set a specific gestational age beyond which abortions may be performed only in limited circumstances. Others don't define a viability threshold, leaving the issue open to doctors'-and abortionists' -discretion. But in states where viability, by law, begins between 24 and 26 weeks, the cases of Blake Boudreau and many other premature babies raise interesting questions: In practical terms, how much has medical science advanced fetal viability? And might those gains also have advanced conservative legislators' case for protecting unborn babies at earlier gestational ages?
The answer to the first question is encouraging. Medical literature as recently as 2002 called prospects for babies 23 through 25 weeks' gestational age "grim." But a December 2003 article published in the peer-reviewed journal Pediatrics revealed more promising results in what may be the largest study to date of viability and related outcomes for extremely premature infants. The study, conducted by neonatologist Dr. Hoekstra and colleagues at Children's Hospital of Minneapolis, analyzed outcomes for 1,036 infants born between 23 and 26 weeks over the past 15 years.
Among the Hoekstra team's findings: Between 1986 and 1990, only 40 percent of babies born at 23 weeks survived, but between 1996 and 2000, two-thirds survived. Meanwhile, babies born between 1996 and 2000 at 24, 25, and 26 weeks survived at rates of 81 percent, 85 percent, and 93 percent, respectively -an improvement of as much as 65 percent over the 15-year time frame studied. Further, neurological testing of 675 early-term survivors at age 4 showed that an average of two-thirds tested normal. One in five suffered severe neurological impairment.
According to the Alan Guttmacher Institute, the research arm of Planned Parenthood, U.S. abortionists in 1999 killed 1,315,000 babies. According to the 2003 edition of Health, United States, a publication of the National Center for Health Statistics, 1.5 percent of those children were aborted at 21 weeks or later. That means abortionists terminated the lives of 19,725 babies who were near, at, and beyond the same gestational age as was Blake Boudreau at the moment of his birth. This year, Blake will celebrate his seventh birthday.
In Casey vs. Planned Parenthood, the U.S. Supreme Court recognized that government has an interest in preserving "potential life" such as Blake's. In that 1992 case, the court clarified Roe's restriction on the state's ability to regulate abortion, ruling that viability, not a particular trimester, was the crossroads at which the right to choose might have to yield to the right to life.
Might the Hoekstra study lend scientific heft to arguments by pro-life legislators seeking to codify new, earlier viability benchmarks? Perhaps. But Americans United for Life general counsel Nicholas Nikas said viability isn't a stand-alone issue. "The issue is viability plus a health exception for the mother."
The problem in this instance isn't Roe vs. Wade. It's Doe vs. Bolton, the companion case the high court also ruled on in 1973. In that case, the court established a sweeping health-exception definition that included everything from physical and psychological "risks" of carrying a baby to term, to emotional and familial considerations.
While advances in medical technology should encourage pro-life activists that lawmakers may be able to protect babies in the womb at earlier ages, Mr. Nikas said a reality check is also in order: "Activist courts, no matter what the will of the people, may be able to get around any new post-viability abortion restrictions by using a health exception," he said.
But there is reason for hope. As the Casey court discarded Roe's trimester framework in favor of the more medically current concept of viability, a future court could redefine the Doe definition of a health exception-particularly in light of new science on the damaging physical and psychological effects of abortion.
The federal ban on partial-birth abortion, currently under nationwide injunction, could provide the court with its first opportunity. But in the first of three trials challenging the law, U.S. District Judge Phyllis Hamilton cited the ban's lack of a health exception in ruling it unconstitutional. If the Supreme Court agrees, any new laws rolling back post-viability limits may be, for now, dead on arrival.