Hard Cases Make Bad Law

Over at the Seattle Times, Bettina Paek, a maternal fetal medicine physician in Kirkland, wrote an opinion article called “Abort a baby to save twin: Painful choice that is a mother’s to make.” She recounts a difficult story about Lisa and Nick, a couple having twins who shared a placenta and the same amniotic sac. Lisa experienced complications in the pregnancy. As Dr. Paek explains, it is uncommon for both twins to share the same amniotic sac, and when they do, they share the same blood vessels. As can happen, the twins’ umbilical cords can get tangled up, cutting off blood flow. Since both babies share the same blood vessels, if one twin dies, the other soon follows. This was Lisa and Nick’s situation, as described by Dr. Paek.

Lisa and Nick’s twins had their umbilical cords wrapped around each other. One twin was alive and vigorous, the other one was dying, his heart rate decelerating rapidly. Once the dying twin’s heart stopped pumping completely, the resulting change in blood pressure would cause the other twin to pump all of his blood into his dying brother. It was a tragic, difficult situation. The only solution was to close off the umbilical cord of the dying baby and cut through it. This would sever the vascular connection between the two brothers, which would result in the dying twin’s death almost immediately. However, it would save the healthy twin. If Dr. Paek had waited for nature to take its course, it would be too late to save the healthy child.

This seems almost like a textbook example of a triage case: both patients are in mortal danger (even though the second twin was still healthy and vibrant at the time, he was in mortal danger because of his dying twin), and you can only save one. Which one do you save? In this case, it was only possible to save one child.

I don’t fault Dr. Paek for her decision. She clearly considers this to be a tragic case and would have preferred both twins to survive. In fact, I agree that Dr. Paek did the right thing, and that the parents did the right thing by requesting the surgery. Not only could this be justified as a case of triage (act to save one patient or end up losing them both), but it could also be justified by double-effect reasoning: one twin was already dying, so the death of that twin was not aimed for — the immediate death of the twin was foreseen, but not intended. If it was medically possible, the doctor would have saved them both (which seems clear from the context of the article). And while the doctor says her severing of the umbilical cord “killed” the dying twin almost immediately, she is not making a distinction between a direct and indirect killing. In this case, the death of the fetus was not caused by a direct¬†action from Dr. Paek, but from an indirect action on her part, the severing of the umbilical cord.

Now here’s the rub: this is clearly a medical emergency. But Dr. Paek wants to argue that the bill the Senate was going to vote on, outlawing abortion after 20 weeks (which, we know now, failed to pass a Senate vote) would criminalize surgeries like the one she performs. It would also criminalize, she claims, other “hard case” surgeries like abortions in the case of fetal abnormalities incompatible with life which, Dr. Paek asserts, make up the vast majority of terminations after 20 weeks. But as Secular Pro-Life has reported, it’s simply not true that the vast majority of late-term terminations are due to fetal abnormalities. Women abort in the late term for socioeconomic reasons, just like they do in the early term, mixed with the fact that she either didn’t know she was pregnant or was unable to secure an earlier term abortion.

Unfortunately, abortion-rights advocates tend to resort to the extreme difficult cases in order to justify all abortions remaining legal. But as has been rightly said, hard cases make bad law. Saying that we should legalize all abortions because there are extreme rare cases where it may be needed is like saying we should legalize speeding because there may come a day someone may have to rush a loved one to the hospital. Doctor Paek saved a baby’s life in this surgery, but with abortion, the end result, and the aim, is a dead baby.

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