Battle for Babies in the Lone Star State

The Texas Senate will reconvene on the Monday following Independence Day to resume the battle between the freedom of women to destroy their unborn babies and the freedom of those babies to live. In a tense race-to-the-finish with dueling demonstrators outside singing “Amazing Grace” and “Hail, Satan,”1 the Texas Senate closed its pre-holiday session by voting for a more restrictive abortion law—one that would protect babies four weeks sooner than present law and cause many substandard clinics to close.

The legislative process, disturbed by an angry mob in the gallery, became mired in technicalities. And with an 11-hour filibuster, during which she was deemed to have violated Senate rules three times, Senator Wendy Davis succeeded in running down the clock to midnight. No politician turned into a pumpkin, but the vote did. Though the Senate voted to pass the bill, the vote was two minutes too late.

Snatching a second chance for victory from the jaws of a technical knock-out, Governor Rick Perry vowed not to let technicalities de-rail this legislation for life. He has called for another special session to consider Senate Bill 5.2 So the bill’s proponents and opponents are readying for a 30-day high-stakes game. The companion bill has already passed in the House. If Senate Bill 5 passes, the Lone Star state will join a dozen others in prohibiting abortion of babies after 20 weeks, in this case measured from fertilization.

Angry protesters yelled chants while Texas senators met to discuss a bill banning abortions beyond 20 weeks and to force abortion clinics to conform to standards suitable for outpatient surgical centers. Image by Eric Gay/AP, via NBC News.

Governor Perry, explaining why he is eager to see this bill passed, especially in the wake of Kermit Gosnell’s homicide convictions, and the equally horrifying case of Douglas Karpen recently come to light in Houston,3 said:

The horrors of the national late-term abortion industry are continuing to come to light, one atrocity at a time. Sadly, some of those same atrocities happen in our own state. In Texas, we value all life, and we’ve worked to cultivate a culture that supports the birth of every child. We have an obligation to protect unborn children, and to hold those who peddle these abortions to standards that would minimize the death, disease and pain they cause.4

Texas Governor Rick Perry calls another special session of the Senate in an effort to let the senators discuss and vote on a bill that would ban Texas abortions from 20 weeks post-fertilization. Image from Texas Right to Life.

Gestational age5 is conventionally measured from the onset of the last menstrual period. The time of fertilization is roughly two weeks later, and, as the more precise reflection of the unborn baby’s age, it is a reminder that the abortionist is responsible for gathering all available data to ascertain an unborn baby’s actual age lest a “fudged” calendar lead one child to death that might have escaped. And in a somewhat symbolic sense, such a date calls attention to the fact that the unborn child, having now reached the age when he or she might survive outside the mother’s womb, has actually been a living human being since the moment of fertilization. If the Texas Senate passes this bill, it will signify a hard-won freedom—the freedom to live—for at least some of the unborn in the nation’s second most populous state.

The unborn of all gestational ages will indirectly receive some protection under the new law. Abortion clinics will be held to the same standards as free-standing surgical clinics, and doctors performing abortions will be required to have hospital privileges at a facility within 30 miles. Doctors will not only be required to ensure that their patients have access to medical follow-up care but also to carefully determine the age of the fetus whose doom is being sealed. And patients seeking prescription abortifacients must come to a clinic to take the drug, ensuring that the drug is taken only by the person it is prescribed for. The bill’s opponents are furious, saying that 37 of the state’s 42 abortion clinics will have to close or remodel, forcing women to drive up to four hours to have their babies’ lives destroyed.

Granted, one would think that careful medical histories, safe facilities, and access to emergency care in case of complications would be the norm in an industry that supposedly prides itself in “keeping abortion safe,” but the abortion industry characteristically protests every attempt to regulate it. (Doctors whose offices provide other sorts of medical and surgical care may not enjoy the many regulations they too must obey, but they do not generally stage protests when directed to maintain high standards.) The abortion industry tends to demand an exception for itself, citing the rarity of complications. The wrongful death of one of Kermit Gosnell’s adult patients illustrates the need to force abortion clinics to comply with safe standards.

The American judicial system has not been kind to the unborn. Forty years ago the United States Supreme Court in the matter of Roe v. Wade declared laws prohibiting first trimester abortions to be unconstitutional. The Supreme Court created a constitutional right of privacy in order to justify the nullification of anti-abortion laws, but technically that “constitutional right” to abortion does not extend unconditionally to the entire nine months of pregnancy. The woman’s “right to privacy” created by the Court morphs according to the gestation of the unborn person whose ultimate right to live stands to be violated.

The Supreme Court artificially divided the nine months of pregnancy into “trimesters” and created a different rule for each. Roe v. Wade declared unconstitutional all laws preventing first trimester abortions and only allowed restrictions in the second trimester to protect “the health of the mother.”6 Rulings that deemed mental stress to be a threat to maternal health essentially removed all practical restrictions. Only beyond the point of “viability” were state laws restricting abortion “in the interest of promoting the potentiality of human life”7 still permissible. (Viability is the time when the baby may survive outside the womb.) Pro-abortionists have focused their energies on preserving the “constitutional right” that the Court mysteriously “discovered” for women on the fateful day, January 22, 1973.

Sickened by the staggering 55 million babies murdered8 in the United States since Roe v. Wade, many states have passed abortion restrictions. (See the interactive map at www.washingtonpost.com.) The usual pattern, sadly, is that legislative restrictions are immediately challenged in the courts and often set aside by judges. While proponents of the lives and health of Texas women and their babies regroup to pass this bill, opponents have declared their intention to create technical problems and delays in hopes that even if SB5 passes again, a court will throw out the law on a technicality.

The point of viability is not carved in stone. In 2004 the world saw its first 25-week baby survive. Since the second trimester ends around the 27th week (about 25 weeks after fertilization), it is clear that babies born near the end of the second trimester have a reasonable chance of survival.

The age at which a baby born prematurely may survive has marched backwards to now a record-setting 21 weeks and 5 days.

With advances in medical science, the age at which a baby born prematurely may survive has marched backwards to now a record-setting 21 weeks and 5 days from the first day of the last menstrual period. This translates to approximately 20 weeks after fertilization. Therefore, given that there is evidence that babies shortly beyond this milestone can perceive pain as well as the well-documented fact that some babies at that age have survived, Senate Bill 5’s sponsors have set their goal at that point.

Texas Senate Bill 5 excludes situations in which the mother is endangered, including ectopic pregnancy,9 as well as situations in which the baby in question has an untreatable, imminently lethal defect.10 While it in effect only protects babies far enough along to survive without their mother’s body to protect them, Senate Bill 5 is written so as to ensure a reasonable base of legislative support and a good chance of dodging judicial challenges. It is fitting that the state whose abortion law was challenged in Roe v. Wade—Texas—appears about to pass a law with restrictive provisions affecting a greater population than any other to date. We must hope and pray that such laws are only the first in a turning tide of national disgust over the slaughter of millions. After all, most abortions take place in the first trimester.

Unless there is a fundamental shift toward accepting the sanctity of human life on a biblical basis, however, we cannot hope to see a permanent end to the legalized murder of over a million of America’s unborn babies each year. Ultrasound image abound in America, so most people these days are quite aware that the fetus is a real baby, though they quibble about the human status of the baby in the early days and weeks. So why the outpouring of protesters to preserve the right of Texans to kill babies that are already practically old enough to survive? It is a self-centered and sinful philosophy that demands one’s personal plans and convenience outrank the right of another human being to exist and the authority of a Creator God.  Many are concerned that any legal restrictions might trend toward more. After all, a “right” which the Supreme Court invented could someday be “un-invented” and swept away.

We applaud the effort to begin turning the tide on “Roe” in Texas and hope the legislators supporting Senate Bill 5 negotiate the legal minefield being laid for them, but we must realize that this is only a first step.