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Enabling ‘Child Destruction’: The Reality of Late Term Abortion (Part 2 of 2)

by Peter D. Williams

Last week, we looked at the reality of late-term abortion in the U.S. and the U.K., a subject raised by the exchange between Donald Trump and Hillary Clinton in the third U.S. Presidential Debate. Their exchange was actually over a specific procedure known as ‘Dilation and Extraction’ (‘D&X’), colloquially known as ‘partial-birth’ abortion, as the debate moderator Chris Wallace had asked Clinton why she voted against a ban on that practice.

As we discussed, ‘partial-birth’ abortion is not an inappropriate phrase: D&X involves killing a child in the third trimester of pregnancy by their being partly born breech (i.e. buttocks and feet first), and being subject to a craniotomy (their skull crushed, and the contents removed) before they are fully born. This horrific practice is only the most explicit of the various methods by which unborn children are killed late in pregnancy, but it was uniquely banned in the U.S. in 2003, a prohibition that was upheld in a Supreme Court judgement in 2003.

Despite that, D&X still has a continuing relevance there, and even potentially even over here in the United Kingdom. Not only are precisely the same arguments made in favour of its legality as are employed to justify the availability of all forms of late term abortion in Britain, but the legal possibility of it either side of the Atlantic illustrates the absurdity and injustice of our current laws.

The defence of D&X from American abortion advocates has come in two forms: firstly, to deny that it exists, and secondly, to justify it as a grave necessity either to safeguard women’s lives and health, or to relieve heart-breaking anguish in cases of life-limiting fetal disability.

The denial argument forms part of a general defence of late-term abortion itself, occasioned by the typically trite, not to mention oafishly careless and generalistic, words of Donald Trump, in his comment on Clinton’s position (to which we will come presently):

‘If you go with what Hillary is saying, in the ninth month you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby. Now, you can say that that is OK, and Hillary can say that that is OK, but it’s not OK with me’.

This suffice it to say, is not an obstetrically accurate summary of D&X, the reality of which is barbaric enough without the need for caricature. Still, this occasioned a slew of angry denunciations of Trumpian ignorance by abortion lobby supporters. This included a spittingly-offended piece reproduced recently in the Independent (warning: strong language), in which a woman described her own tragic experience of her baby being born and dying at 23 weeks because she suffered pre-eclampsia. It also included this comedy skit by the Daily Show alumna and comedienne Samantha Bee:

Again, the first argument common to both pieces is a blanket denial of the reality of D&X, or as Bee puts it, “‘Partial-birth abortion’ is not a thing!” Embarrassingly for people like her, and as we’ve already established, D&X very much is a thing, as is the grisly nature of all late term abortion, whether they like it or not. So that’s that.

The second argument however, is that those late term abortions that do occur are relatively unusual (which is true) and regrettable but necessary acts for the life and health of the mother to survive. Indeed, this was the principle defence Clinton made in defending her vote against the Partial-Birth Abortion Ban Act passed in 2003:

‘… Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a Senator, I did not think that that was the case… I have met with women who toward the end of their pregnancy get the worst news one could get, that their health is in jeopardy if they continue to carry to term or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account’.

As we know, the argument from health necessity is generally employed in the British debate over abortion as well, and indeed sections 1(1)(b) and 1(1)(c) of the Abortion Act 1967 allow abortion up to birth (rather than capped at 24 weeks) on the grounds when, either in an emergency or normal medical situation, it is deemed necessary to save the life of the mother (Grounds A & F), or to prevent “grave permanent injury to her physical or mental health” (Grounds B & G).

Yet this premise is quite simply completely wrong on a medical level. Whether we are discussing D&X, D&E, or any form of feticidal abortion, there is quite simply never a case in which the direct killing of a baby is necessary in the third or very late second trimester. To be more specific: at late stages of gestation, it might be necessary to end the pregnancy, but this does not require deliberately ending the life of the child.

When pregnancy must end after 24 weeks, obviously the baby has to come out of her mother’s womb somehow, but at that stage and even during the weeks of ‘peri-viability’ (20-24) when there is a percentage chance of the baby’s survival, the child can be removed and will likely survive. To cause their death through a heart-attack (as with feticide preceding late ‘medical’ abortion), or a craniotomy (as in D&X), let alone taking their body apart piece by piece using strong forceps (as in D&E), would be a pointless act of killing that would needlessly complicate the procedure of delivery. That any of the health or life clauses in the Abortion Act 1967 allow abortions beyond 24 weeks then, is a nonsense.

Unsurprisingly also, the Washington Examiner recently reported on a study that found that late term abortions in America are not, contrary to what Clinton, Bee, and other abortion advocates would argue, gravely necessitated for health reasons. Rather, they seem to mirror the grounds given for earlier abortions.

The examples given in recent abortion advocacy pieces of the necessity of late term abortion do not prove anything contrary to what I have stated above. In fact, those condemning Trump for his ignorance about abortion have mainly spent their time proving their own ill-acquaintance with the medical facts. The case of the woman described in the Independent article who suffered pre-eclampsia, whilst a very emotive and moving case, was not an example of a late third trimester abortion, but rather of a second trimester ‘peri-viable’ induction. This is when a baby is delivered (without being killed beforehand) at a stage of pregnancy where they normally would have a chance of living outside the womb. The ethics of this are actually complicated – and we may discuss them and the issue of second trimester ‘pre-viable’ inductions another time – but this example had no relevance to the issue of late-stage abortions that Trump and Clinton were (however ill-informedly) discussing.

Knowing all this is important for right-to-lifers both sides of the pond, if only because it is more relevant to both our societies than we might like to think.

The idea of a ‘partial-birth’ abortion should be something that is impossible in the United Kingdom. After all, the possibility of killing a child in partum (during birth) is precisely something that the law tried to eliminate in one of the Acts that give legal protections to the unborn child: the Infant Life (Preservation) Act 1929. This Act was introduced as a Bill by Lord Darling, a life peer who had been a High Court Judge. He wrote this legislation because of a lacuna (gap) that existed in the law of England and Wales at the time, in which whilst killing a baby in the womb was a crime (the ‘felony’, as serious crimes were called then, of Abortion), and killing a born baby was a crime (Infanticide), there was no criminal law that covered killing a baby whilst she was being born.

Consequently, the gap in the law was filled by the creation of the new and discrete crime of ‘Child Destruction’, in which a child is killed between 28 weeks gestation (the beginning of the third trimester, when the baby was taken to be capable of being born alive) and full birth. After the Abortion Act was passed in 1967, the beginning of this crime used to be the effective upper limit of all abortions, as the Act only provided an exemption for prosecution from section 58 of the Offences Against The Person Act 1861, which criminalises abortion. No exemption existed for the crime of Child Destruction, and so no abortion could occur after 28 weeks.

In 1990, however, the Human Fertilisation and Embryology Act was passed, and it included a provision – section 37(4) – which ‘decoupled’ the 1967 and 1929 Acts. This allowed doctors to perform abortions on any Grounds of the Act aside from Ground C, under which 99% of abortions take place, which was given an ‘upper limit’ of 24 weeks. So, whilst abortion cannot generally take place after 24 weeks, it can for the rarer situations covered by the other grounds within the Abortion Act. (In fact, insofar as such abortions do happen in the U.K., as the Department of Health’s statistics show and the Don’t Screen Us Out and We’re All Equal campaigns have highlighted, they generally happen to abort babies with disabilities, enabling the materially eugenic screening out of whole communities in our society. That is a discussion that deserves its own post.)

The reason why this is relevant to the debate around late-term and ‘partial birth’ abortion, is because it sets the context for what abortion practices are legally possible in England and Wales. Since the 1990 Act allows an exemption for the crime of Child Destruction for doctors who perform abortions after 24 weeks under certain grounds, it opens up the gap that was closed in 1929. That means, quite astonishingly, that unlike the U.S. where they have banned D&X, the procedure is actually legal in Great Britain (including Scotland, where they never passed a law like the 1929 Act)! That is not to say that it is practised. I, at least, am unaware of any evidence that it has ever taken place in British clinics or hospitals. Nonetheless, the law as it stands would potentially allow for an abortion of that sort. Only Northern Ireland effectively protects unborn children from that practice in the United Kingdom.

That this is the case should shock us, and wake us up from the complacency we experience regarding the state of abortion law in the U.K., as in the United States. For even in America, the ban on partial birth abortion does not thereby stop extremely late stage abortions when the baby could be born alive, since the option of feticide is still open. What allows the barbarism of late term abortion, practices that are practically indistinguishable from infanticide, is the radical ignorance that surrounds what it entails, and the implications of the 1990 Act by which it is enabled. This is what also allows the utter hypocrisy of our society’s horror at the killing of wanted babies, but the sanction of it when it happens according to legal procedure.

The truth is that the law and medical practice in this area are baseless in medical necessity, or in any kind of rational justification aside from the extreme ‘autonomy’ arguments of the abortion lobby. Nonetheless, as we have seen from the arguments of Samantha Bee and her co-ideologues, this state of affairs is defended and enabled by an abortion lobby in America and Britain that too often maintains its position by counterknowledge and obfuscation, as it serves to assuage the consciences of those who would otherwise have serious qualms about the nature of abortion ‘choice’. To effectively counter this, when we discuss late-term abortion we have to be as clear and informed as we can about the object of our discourse. Either side of the Atlantic, it’s only when we dispel the fog of ignorance about what third and late second trimester abortion really is and why it truly happens, that the true inhumanity of D&X, D&E, feticide, and by extension all abortion, can be properly appreciated.