The Implications of Zika and American Abortion Law

The geopolitical discussion of the Zika virus holds significance in the realm of medical ethics, especially as it pertains to the issue of abortion. Pregnant women infected with the virus run the risk of giving birth to infants with severe physical abnormalities. Women in the United States, who are afforded limited rights to abortion, enjoy a much more forgiving policy than those in Latin America, who only proceed with the procedure under extreme circumstances. An assessment of the legislation that paved the way for this somewhat restricted freedom reveals, however, that American women faced with the prospect of giving birth to infants with permanent physical deformities due to infection with Zika are in fact not presented with much in the way of relief.

In Roe v. Wade (1973), perhaps the most controversial Supreme Court case of the 20th century, a majority opinion citing protection of the health of women as its main priority clashed with an opposing governmental desire to protect the life of the fetus. This controversy  eventually led to a compromise that affirmed the autonomy of women in the first trimester, during which they could elect to terminate their pregnancies. States retained the power to regulate second-trimester pregnancies and ban abortions in the third, assuming of course that the pregnancy did not impact the health of the woman.

The abortion controversy would not end with Roe v. Wade, as the later case Planned Parenthood v. Casey (1992) abandoned the consideration of abortion with the organizational framework of the trimester system in favor of a viability argument. Most states assert that a fetus becomes viable—physiologically capable of living independent of its mother, and thus having a status of personhood that makes its termination morally impermissible—late in the second trimester. Before this time, states respect the woman’s right to choose but can elect to ban abortions thereafter. The crucial distinction that bears heavily on mothers infected with the Zika virus is that no state permits abortion in cases of fetal disease or severe abnormality.

In the case of Zika, the exact point of viability of the fetus holds ultimate significance. Women infected with the virus risk giving birth to a child with microcephaly, a disease characterized by an underdeveloped brain. An abnormally small head, the primary indication of affliction with microcephaly, becomes visible only in the beginning of the third trimester. The central problem, as an Aug. 24 Economist article explains, is that “by this point the window of legal abortion has, in most states, already been slammed shut.”

Women are thus faced with a dire situation and few outlets. One option is to wait for an ultrasound test to detect and confirm microcephaly, at which point they must travel to one of only seven states that lack any late-term abortion restrictions. Doing so, however, incurs an extreme financial and temporal cost. The other option is quite literally a gamble: women afflicted with the Zika virus can proceed with an abortion in the first trimester, but there is no way to confirm microcephaly of the fetus at that point. Women undergoing these early abortions would necessarily operate under the assumption that the fetus will in fact have microcephaly, apparently a 1 in 8 probability, according to the same Economist article. Nonetheless, early abortions are likely to rise in the wake of the Zika outbreak, ironically due to stringent state restrictions on late-term abortions imposed by Roe v. Wade.

The circumstances as described pose a considerable moral dilemma for pregnant women infected with the Zika virus, and abortion policy must be amended accordingly to resolve it. It seems that the status quo of American health care practice is in need of massive revision, as it was nearly four decades ago.

Featured Image by Jim Damaske / AP Photo

1 Comment

  1. Children at risk of abortion because of microcephaly have human rights too.

    This is not the first time that children with microcephaly have been targeted by doctors for direct killing.

    At the behest of the parents of a child with severe disabilities, Hitler approved and authorized doctors to kill this child in the summer of 1939.

    This was the start of an infamous program for the medicalized killing of children with disabilities.

    Doctors and midwives were required to report all cases of newborns with severe disabilities. Those to be killed were “all children under three years of age in whom any of the following ‘serious hereditary diseases’ were ‘suspected’: idiocy and Down syndrome (especially when associated with blindness and deafness); MICROCEPHALY; hydrocephaly; malformations of all kinds, especially of limbs, head, and spinal column; and paralysis, including spastic conditions”. [emphasis added] (See Ulf Schmidt and Karl Brandt’s 2007 study: The Nazi Doctors)

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