Carhart Move Demonstrates Need for Protective Legislation


WASHINGTON –  The announcement early last week by Nebraska abortionist LeRoy Carhart that he would soon open up abortion operations in Iowa, Indiana, and Maryland highlights the need for greater laws protecting mothers and their unborn children, according to the National Right to Life Committee (NRLC), the national federation of 50 state right-to-life affiliates and more than 3,000 local chapters. Carhart’s decision to move operations resulted from Nebraska’s enactment of the Pain-Capable Unborn Child Protection Act earlier this year.  The law took effect October 15.

“Nebraska’s groundbreaking law protecting pain-capable unborn children is an example for other states in the nation,” said NRLC Director of State Legislation Mary Spaulding Balch, J.D.  “LeRoy Carhart’s hopscotching around the nation to find areas that allow abortion for any reason, at any time, underscores the need for other states to pass similar legislation to put Carhart and the hundreds of other abortionists who perform abortions late in pregnancy out of business.”

The timing of Carhart’s announcement coincided with NRLC’s announcement that it will hold a State Legislative Strategy Conference on December 7, to plan how best to capitalize on pro-life gains made in state legislative and gubernatorial elections.  The strategy conference for state right-to-life leaders and state legislators will concentrate on a model bill based on Nebraska’s Pain-Capable Unborn Child Protection Act, and other measures including bills to ensure that women contemplating abortion can see real-time ultrasound images of their unborn children.

THE PAIN OF THE UNBORN CHILD

A first-of-its-kind in the United States, Nebraska’s Pain-Capable Unborn Child Protection Act protects unborn children in the fifth and sixth month of pregnancy or later by prohibiting abortion after 20 weeks postfertilization (approximately 22 weeks after the woman’s last menstrual period or “LMP”), except when the mother “has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert death or to avert serious risk of substantial or irreversible physical impairment of a major bodily function or…it is necessary to preserve the life of an unborn child.”  The full text of the Nebraska law is available here: http://nebraskalegislature.gov/FloorDocs/Current/PDF/AM/ER8229.pdf   

Some researchers claim that unborn children cannot feel pain until later in pregnancy when nerves reach the cerebral cortex.  However, Spaulding Balch said, “Since 2007, medical research, triggered by the identification of consciousness in children lacking a cortex from birth, has indicated that nerve connection to the cortex is not essential to experience pain. In fact, informed specialists have concluded that the subcortical plate, to which nerves from the pain receptors are linking at 20 weeks postfertilization, fulfills that function.”

Scientific studies, dating back to 1987, confirming the existence of fetal pain at 20 weeks postfertilization (22 weeks LMP), can be found here: http://www.doctorsonfetalpain.com/scientific-studies.

HOW MANY LATE ABORTIONS AND ABORTIONISTS ARE THERE?

In an interview with Colorado abortionist Warren Hern published online November 5, 2010, TIME Magazineperpetuated the prevalent myth that there are few, if any abortionists who perform abortions late in pregnancy.  The Washington Post‘s Rob Stein also furthered the myth in a November 10 piece saying that Carhart “is one of the few in the country to perform abortions late in pregnancy.”  The truth is, abortions in the fifth month of pregnancy and later are widely available.   

A 2008 study, “Abortion in the United States: Incidence and Access to Services, 2005,” released by the Guttmacher Institute (which was originally founded as a special research affiliate of the Planned Parenthood Federation of America) found that, in 2005, there were at least 1,787 abortion providers in the United States.  (It is worth noting that submission for the Guttmacher study is voluntary.  As a result, Guttmacher projects estimates for nonresponders meaning that the figures cited are estimated calculations and therefore most likely represent minimum numbers and calculations.)

Of the 1,787 providers, the study found that “[t]wenty percent of providers offered abortions after 20 weeks [LMP], and only 8% at 24 weeks [LMP]…” This translates to at least 300 abortion providers who will perform abortions after 20 weeks LMP and of whom, 140 willing to perform abortions at 24 weeks LMP. 

Assuming that the 8% of abortion providers willing to perform abortions at 24 weeks LMP would do so at 22 weeks LMP means there are at least 140 abortion providers willing to abort a pain-capable unborn children at 22 weeks LMP (20 weeks postfertilization).

“That more than 140 abortion providers are willing to kill unborn children who are capable of feeling the excruciating pain of abortion is a tragedy – a tragedy that we can easily stop in the state legislatures,”Spaulding Balch commented.

It is also misleading to conclude that the abortions which Hern, Carhart and their ilk are performing are “rare.”  According to a May 2010 briefing by the Guttmacher Institute, 1.5% of the estimated more than 1.2 million elective abortions performed annually in the United States are on unborn children at 21 weeks LMP (19 weeks postfertilization) or older.  This translates to roughly 18,000 abortions annually – a substantial number of which probably occur at 22 weeks LMP or later, which is past the point that the best evidence indicates that the unborn child is fully capable of feeling pain (a point that may well occur earlier).

These findings are generally corroborated by the Centers for Disease Control Abortion Surveillance Report for 2006 (released November 27, 2009).  In the 43 reporting areas for 2006 which reported gestational age to the CDC for its report, at least 1.3%, of abortions were performed at 21 weeks or later. (Three states – California, Louisiana and New Hampshire – did not submit any data for 2006. Six states – Florida, Illinois, Maryland, Massachusetts, Mississippi, and Nebraska – either did not report gestational age or gestational age was reported as unknown for more than 15% of women.)

“With pro-life electoral gains on November 2, the spring legislative sessions gives us a tremendous opportunity to enact a variety of protective pro-life laws in many states and put an end to abortions after the unborn child is capable of feeling pain,” Spaulding Balch added.  “Our number one priority at the state level is protecting mothers and their unborn children from the abortion industry and we have pro-life legislative majorities across the country to help make that happen.” 

WHAT IS A “LATE ABORTION?”

Both TIME Magazine and the Washington Post refer to Hern and Carhart as the last remaining abortionists who will perform abortions late in pregnancy.  In making their claims, both publications use the phrase “late-term abortion” to describe the procedures Hern and Carhart perform. 

The phrase “late-term abortion” has no fixed legal or medical meaning.  Its use in such news stories is misleading and distorts the debate.  This distortion is in part deliberately engendered by pro-abortion groups, who use the phrase “late-term” as code for “third-trimester,” meaning 27 weeks LMP (about the seventh month and later). 

It is further confusing because many Americans would most likely agree that any abortion performed after the midway point of a woman’s pregnancy (20 weeks LMP based on a standard 40-week pregnancy term) would qualify as “late abortions.”  Indeed, most Americans would likely consider all abortions performed in the fifth month or later (e.g., after 18 weeks) as “late abortions.”

A perfect example of the confusion caused by using a pro-abortion industry buzzword is found in the characterization of LeRoy Carhart as “late-term” abortionist when Carhart himself admits that his practice in Nebraska was limited to abortions on children younger than 22 weeks.  In a June 2, 2009, press conference, Carhart was asked directly about his abortion business in Bellevue, Nebraska:

            Q: Dr. Carhart, so you don’t at, at this clinic here, you, you don’t perform third trimester 

            abortions?

            …

            Carhart: No.  No.  No. 

            …

            Q: So what’s the cut-off generally here as you interpret it?

            Carhart: We do not go past, uh, 22 weeks after conception.  

While Carhart goes on to admit that he has aborted a 38-week-old unborn child in Kansas, his primary business was abortions under 22 weeks.  So which is it?  Is Carhart a “late-term” abortionist or not?

Therefore, in broadcasts and stories, it is best to avoid using phraseology like “late-term” to describe procedures banned by the Nebraska law. Rather, it is preferable to describe what the bill actually does – it prohibits abortion of babies who are past 20 weeks fertilization (22 weeks LMP), which is at the end of the fifth month.

NRLC Director of State Legislation Mary Spaulding Balch, J.D., is available to provide further comment and analysis.  To arrange an interview, contact the NRLC Communications Department at (202) 626-8825. 

The National Right to Life Committee (NRLC), the federation of 50 state right-to-life organizations and more than 3,000 local chapters nationwide, is the nation’s largest pro-life group. National Right to Life works through legislation and education to protect those threatened by abortion, infanticide, euthanasia and assisted suicide.