Round-Up
UPDATE: Ken Jost of CQ Weekly has this column about the partial-birth abortion cases.
UPDATE: Marcia Coyle has an article here (subscription req’d) in the National Law Journal about the upcoming case Weyerhaeuser v. Ross-Simmons Lumber
ABC News has posted the complete transcript of Monday’s hour-long discussion between Jan Crawford Greenburg and the Chief Justice here. The online transcript is of the complete interview, most of which was not shown on Monday’s “Nightline” broadcast (the complete interview lasted over an hour).
Linda Greenhouse writes here in the New York Times about Justice O’Connor’s revelation that baked-goods laced with rat poison were sent to the Supreme Court last year.
The AP’s Mark Sherman had this report from the first day of the annual convention of the Federalist Society; speakers yesterday included Justice Alito and Solicitor General Clement.
Martin Magnusson wonders here on the ACSBlog, “Are Federal Judicial Salaries Adequate?”
At the Consumer Law & Policy Blog, Deepak Gupta has this post discussing some of the top-side briefs in the Safeco and Geico FCRA cases (we posted the complete set of briefs yesterday here).
Kenneth Jost says in his November 20 CQ Weekly column, “Just the Facts, Please,” linked above, that everybody is entitled to his own opinion, but not his own facts. I agree in principle. Regrettably, Mr. Jost then proceeds to assert as a “fact” this proposition regarding partial-birth abortion: “[T]he procedure entails no ‘partial-birth’ — at least, not when performed in the second trimester of a pregnancy. At that point, a fetus is not viable: It cannot live outside the womb.”
That assertion that a second-trimester human cannot be “viable” (capable of long-term survival) is demonstrably erroneous. Moreover, Mr. Jost couples this erroneous assertion with a howling non sequitur, as I will discuss below.
Most partial-birth abortions are indeed performed in the second trimester (in the fifth and sixth months, in layperson’s parlance), as we have stressed since 1995. But there are plenty of children running around today who were born as much as a month before the start of the “third trimester.” They were born, in fact, during the period in which most partial-birth abortions are performed.
Obstetricians consider a full-term pregnancy to be 40 weeks past a woman’s last menstrual period (”LMP”). A trimester is by definition one-third of that period, or about 13 weeks. The third trimester begins, therefore, about at the beginning of the 27th week, or a little later. With modern neonatal care, many babies born as early as 23 weeks LMP now survive long-term — about one-third of them, in good neonatal units. At 24 weeks the survival rate is over 50 percent, and the long-term survival curve rises sharply after that.
Aside from Mr. Jost’s erroneous notion that viability begins with the third trimester, he also makes what they called, when I went to journalism school, a “school boy error”: He equates birth with viability. But this makes no sense. Medically, and certainly legally, live birth and viability are two entirely different things. Live births may occur a month before the beginning of the capacity for long-term survival, or about two months before the “third trimester.”
This is no mere quibble. Legally, under the long-established laws of nearly every state, and now under federal law as well (the Born-Alive Infants Protection Act), once an immature member of the species Homo sapiens is all the way outside the mother and draws breath, or shows other signs of life such as heartbeat or movement of voluntary muscles, a live birth has occurred, and all the protections of law attach for as long as the infant survives — whether or not the baby is “viable.”
The great majority of partial-birth abortions are performed during the period in which the infants, if spontaneously expelled by premature labor, would most often be born alive. Even early in the fifth month, babies are often born alive when expelled spontaneously by premature labor. By 20 weeks — 4-1/2 months — a prematurely delivered baby may breathe for an hour or so before dying. The survival periods of these “pre-viable” live-born infants increases until, by 23 weeks (just into the sixth month), roughly one-third of survive long-term, as already noted above.
One more thing on this: Typically, an infant born alive at, say, 21 weeks, although pre-viable, will be given “comfort care” in a neonatal unit. For whatever time that child survives, he or she enjoys the protections of the law as much as Mr. Jost. I hope that Mr. Jost would agree that if he saw some madman run into the neonatal unit and hit that 21-week live-born infant on the head with a hammer, he would have witnessed a homicide. Surely, I hope that Mr. Jost would reject the madman’s defense that no homicide had occurred because no “birth” had ever occurred — because, after all, the baby was not “viable.”
It is regrettable that CQ Weekly nowadays publishes expressions of sometimes ill-informed opinion, such as this column by Mr. Jost, while failing to provide any forum by which readers might be exposed to — well, a few contrary facts.
Douglas Johnson
Legislative Director
National Right to Life Committee
Washington, D.C. 20004
202-626-8820
Comment by Douglas Johnson — November 22, 2006 @ 1:02 pm