In August, a Tennessee lawmaker filed a proposal to ban all abortions once “a viable pregnancy” has been detected. All that takes, according to the measure, is the detection of the hormone that’s usually found by an at-home pregnancy test, within just a few weeks of conception.
Experts, however, say the language in the bill is medically inaccurate, and conflates a viable pregnancy (or a pregnancy that's less likely to result in a miscarriage), with a viable fetus, or a fetus that can survive outside the womb.
Introduced by Tennessee state Sen. Mark Pody, the proposed legislation is an amendment to Senate Bill 1236, which sought to ban abortions after six weeks' gestation, even though that's before many people know they're pregnant. That bill did not gain the state legislature’s approval this term.
Pody's new amendment—which won't be voted on until the legislature is back in session in January 2020—substitutes the six-week ban for a ban on all abortions from the moment of conception, or when sperm joins with an egg, with an exception if the pregnant person's life is at risk. (Under the bill's logic, emergency contraception like certain IUDs and Plan B would also be banned since that form of birth control can prevent a fertilized egg from implanting in the uterus.)
The amendment falsely states that a fetus is viable at conception and, further, since one of the key holdings of Roe v. Wade is confirmation of "the State's power to restrict abortions after fetal viability" that the state is free to ban abortions starting at conception. Specifically, the bill says abortions would be banned "when a viable pregnancy is presumed to exist or has been confirmed."
The proposal states that viability can be determined through the detection of a fetal "heartbeat" or several tests indicating the presence of human chorionic gonadotropin (HCG). HCG is produced by the placenta shortly after a fertilized egg attaches to the uterine lining and is the hormone that home pregnancy tests check for.
In reality, a fetus isn't considered viable—or able to survive outside the uterus—until about 24 weeks development. But according to the amendment, “it is established and accepted medical science that the viability of the fetus, unborn child, human individual, or person is determined during the first six weeks of gestation through a consistent increase of the pregnancy-specific hormone HCG.” That's just not true.
Among the sources Pody's bill cited to define viability is a practice bulletin issued by the American College of Obstetricians and Gynecologists (ACOG) in December 1998. These guidelines talked about using a medication called methotrexate to treat ectopic pregnancies. (An ectopic pregnancy is when a fertilized egg attaches itself in a place other than inside the uterus, and can be life-threatening for the patient.) Drawing from those guidelines, the Tennessee bill also stated that an increase of 66 percent of HCG or higher over a two-day period is observed in a “normal pregnancy.”
That, the proposal argues, is evidence that viability can be determined in the first few weeks of pregnancy.
But as Katherine McHugh, an OB/GYN in Indianapolis and spokesperson for ACOG, explained, there’s a big difference between the viability of a pregnancy and fetal viability.
“The guidelines that this Tennessee language is based on are outdated and have been retracted,” McHugh told VICE. “[The proposal also] uses medical language that is misinterpreted into layman’s language and is an example of how politicians do not understand the medical language enough to make a policy based on it.”
A "viable pregnancy" means a pregnancy has the potential to continue, McHugh said, something that is important to assess because of the high risk of miscarriage. Anywhere between 10 percent to 25 percent of pregnancies will end in miscarriage.
“When patients come in with bleeding or pain or we’re concerned that there is a problem with the pregnancy, we evaluate the pregnancy for what we term 'viability.' That doesn’t have anything to do with the viability of the fetus. It means the pregnancy may be able to continue and potentially result in a viable fetus that could live outside of the mother. But that is not the same term nor has the same intention.”
According to ACOG’s latest guidelines on ectopic pregnancies (an updated version of the 1998 guidelines cited in the Tennessee ban), an “accurate gestational age calculation” done via an ultrasound is the best way to determine if a pregnancy is considered normal, rather than measuring “absolute HCG level.”
HCG is usually detected between three and four weeks after a person’s last menstrual period, or one to two weeks after conception. If the amendment is passed as is, McHugh said, there would be no time for a person to consider the implications of a pregnancy. It would indeed be an all-out ban on abortion.
“The idea that you would use beta-HCG as a marker of when someone could or could not have an abortion is ludicrous,” she said. “There would be no way to determine if a patient is pregnant prior to that pregnancy urine or blood test.”
McHugh said that providers do still monitor HCG levels for patients who present with concerning symptoms, such as bleeding or pain. “If those numbers are doubling in about a 48-hour period, that bodes well for the pregnancy. That’s it,” she said. “If that beta-HCG does not rise appropriately, then we are concerned about the possibility of an ectopic pregnancy. That is not a pregnancy that can result in a live baby but is life-threatening to the patient.”
“The use of the term ‘viable’ in this setting is completely inappropriate to use in respect to the fetus,” McHugh added. “It has nothing to do with the fetus. It has everything to do with the pregnancy and the ability of that pregnancy to continue to potentially result in a child.”
As OB/GYN Jen Gunter told Rewire.News: "Using beta-HCG to determine viability of pregnancy is medically incorrect and only an idiot or someone using a textbook from the 1990s would reach that conclusion.”
And, despite sourcing outdated information from ACOG to make its case, the language of Pody’s amendment directly contradicts the organization’s own stance on abortion.
“The College continues to confirm the legal right of a woman to obtain an abortion prior to fetal viability,” an ACOG policy statement reads. Echoing the U.S. Supreme Court’s view on viability, ACOG defines it as “the capacity of the fetus for sustained survival outside the woman’s uterus. Whether or not this capacity exists is a medical determination, may vary with each pregnancy and is a matter for the judgement of responsible health care provider.”
Not all anti-abortion advocates agree with Pody's bill. Jim Bopp, an attorney for the National Right to Life Committee, told the Nashville Tennessean that defining viability so early in a pregnancy was "irrational."
"It makes us look foolish," he said. "And I do not want to look foolish."
CNN reports that the Family Action Council of Tennessee helped Pody write the amendment. VICE has contacted Pody's office for comment and we'll update this story if we hear back.
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