What is 'medical futility'? Reporters covering 'heartbeat' bill need to ask an essential question

In yet another U.S. Supreme Court ruling on abortion — City of Akron v. Akron Center for Reproductive Health in 1983 — Justice Sandra Day O’Connor found herself pondering the potential impact of advanced medical technology on the trimester framework at the heart of Roe v. Wade.

Hang in there with me for a moment. I am bringing this up because the information is highly relevant to news coverage of the bitter debates surrounding efforts to pass a “heartbeat” bill in Georgia. That was the subject of recent post by our own Bobby Ross, Jr., that ran with this headline: “Culture war winner: Atlanta newspaper delivers fair, nuanced coverage of anti-abortion 'heartbeat bill'.”

Just to be clear: I agree with Bobby that this particular Atlanta Journal-Constitution article contained a wider than normal range of voices explaining how different groups view that abortion legislation. That’s good. However, there was one crucial, and I mean CRUCIAL, point in the article that confused me. Digging into that topic a bit, I found more confusion — at AJC.com and in some other news outlets, as well.

In the end, I will be asking a journalism question, not a question about law or science.

Let’s walk into this carefully, beginning with this long quote from Justice O’Connor in 1983:

Just as improvements in medical technology inevitably will move forward the point at which the state may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the state may proscribe abortions except when necessary to preserve the life and health of the mother. … In 1973, viability before 28 weeks was considered unusual. However, recent studies have demonstrated increasingly earlier fetal viability. It is certainly reasonable to believe that fetal viability in the first trimester of pregnancy may be possible in the not too distant future.

The Roe framework, then, is clearly on a collision course with itself.

This is, of course, precisely what is happening. At this point, it is commonly accepted that the viability of unborn children — weight is crucial — has moved back to between 22 and 24 weeks into a pregnancy. Will science make even more progress there, in terms of helping premies survive outside the womb?

Now, onto the “heartbeat” bill debates. When can scientists detect the heartbeat of an unborn child? That would be six weeks into the pregnancy. Parents can usually hear the heartbeat, with assistance, at nine to 10 weeks. Note this passage in the story that Bobby critiqued:

… Supporters who already voted for the bill are already on the record and have little incentive to change their mind. On the other, the opposition from Georgia Right to Life, an influential conservative group, could give those having second thoughts some political cover.

The group’s director, Zemmie Fleck, said in a letter to members that it opposed the bill because of exceptions that would allow abortions in the case of rape, incest, medical emergencies or “medical futility,” meaning the fetus would not be able to survive after birth.

Wait a minute. So the goal of the bill is to ban abortion after detection of a heartbeat, which is defined as six weeks. But it now includes a clause saying an exception can be made for “medical futility,” meaning that a child would “not be able to survive after birth”?

Something has to be missing here, since the line for viability is currently at 22-24 weeks. What unborn child can survive after birth between seven and 21 weeks? Are we talking about the abortion of a fetus if there is hard evidence that the child has medical issues that would cause death soon after birth, no matter what or when?

In other words, does anyone know what “medical futility” means, in this context?

Apparently not. Another Journal-Constitution story has this language:

Current Georgia law allows abortions to be performed until 20 weeks.

OK, that is a reference to evidence of viability outside of the womb. The very next paragraph states:

Under the proposal, women still would be able to get later abortions in cases of rape, incest, if the life of the mother is in danger or in instances of “medical futility,” when a fetus would not be able to survive after birth.

So abortion is banned after six weeks? Again: What’s the status of the child between weeks seven and 20?

Something is missing from this equation — which is a journalism problem. There has to be some kind of material linked to this debate that defines “medical futility” in terms of defects or other issues.

However, an Associated Press story has a similar issue:

The bill makes exceptions in the case of rape and incest, but only if the woman files a police report. It also would allow exceptions if the pregnancy places a mother's life at risk.

The chairman of the committee, Rep. Sharon Cooper, introduced an amendment that passed which also makes an exception in the case of a "medically futile" pregnancy — cases in which a fetus is deemed not compatible with life.

What in the world does “compatible with life” mean? No fetus is “compatible with life” outside the womb until viability.

Here’s one more example of the confusion, care of The Hill, with a story that simply leaves the crucial term hanging there with no defining content at all.

The bill makes exceptions in the case of rape and incest, but only if a woman files a police report, the AP reported. There is also an exception in the event the pregnancy puts a mother's life at risk, or in the case of a "medically futile" pregnancy.

Now, as I stated, my assumption is that the language in the bill refers to some kind of medical condition or deformity that doctors can prove would mean that an unborn child would have little or no chance to survive birth — whenever that occurs.

But why not add a few words that clarifies this crucial point?

This brings us to the journalism question: Why aren’t reporters asking the supporters and crafters of the “heartbeat” bill to clarify this issue? What does “medical futility” mean to the people who are arguing in favor of this legislation? What is the definition of this term that is consistent with their own stated goals?

Well, there is a problem. It does not appear that journalists are actually INTERVIEWING supporters of the bill, with the possible exception of a quote or two focusing on political mechanics. The vast majority of material representing the pro-life side of this issue is coming from public statements, letters, videos of speeches to conservative groups, etc. Interviews?

It’s almost like the goal is to avoid letting these strange people explain why they believe what they believe.

Now, if you want to know why abortion-rights leaders oppose the legislation, then journalists have some material to share from actual interviews. They can talk to those folks, whether they are in politics, Hollywood, the business community or whatever. Interviews? Sure thing.

In conclusion, please know that I understand that reporters have very little time to spare these days, in an age of shrinking newsrooms and quick-strike journalism. I know that, in some cases, you can’t get to people on deadline. I also know that many conservatives are (to say the least) not anxious to talk to some reporters.

But, in this case, we are talking about a confusing and rather bizarre hole at, well, the heart of this divisive subject. Maybe journalists could TALK to someone on the pro-life side and ask a question or two to clarify this issue? Give it a try.

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