John Robertson on “Is Selective Reduction Covered by State Abortion Law?” (Online Abortion and Reproductive Technology Symposium)

By John Robertson

The meeting at Rutgers-Camden on convergences and divergences between abortion and assisted reproduction (to use Glenn Cohen’s term) was stimulating and interesting on many fronts.  To pick up on one such issue, must physicians who reduce pregnancies to twins or singletons comply with state regulations for abortion?  Many of us thought that they were probably covered, even if they view themselves differently than physicians at abortion clinics.

In fact, selective reductions might not fit all state definitions of abortion.  Texas defines abortion as “the use of any means to terminate the pregnancy of a female known by the attending physician to be pregnant with the intention that the termination of the pregnancy by those means will, with reasonable likelihood, cause the death of the fetus.”  Texas Health & Safety Code # 171.002.

Since protection of fetuses is a main purpose of such statutes, a natural reading of the statute would be to view the termination of the pregnancy of a particular fetus, as occurs with selective reduction, to be covered.  On the other hand, precision in language is also necessary.  Since the intention of the physician is not to terminate the entire pregnancy, one could argue (perhaps with less support) that selective reduction where at least one fetus remains and the pregnancy continues is not covered.  Under prevailing notice jurisprudence, there is a plausible argument that this definition doesn’t give reasonable physicians, enforcers, or patients fair notice that selective reduction is covered by abortion statutes. (Of course, the legislature could easily revise the statute).

As a practical matter, a physician doing such procedures might prudently following state law in all respects, such as informed consent, 24 hour waiting periods, ultrasound if required, notice of adoption alternatives, etc. to avoid trouble.  There may, however, be situations in which compliance with such requirements in this already heavily freighted emotional context is especially onerous.  There may also be questions as to whether it extends to postviability abortions, where selective reduction is done to protect the health of other fetuses or newborns, though many of those cases might fall within the mother’s health exception.

In the end, the greatest importance of this question is to enrich the discussion and make us aware of the different situations that bring women to termination choices.  If one such path is through assisted reproduction, it reminds us that much more attention needs to be paid to hyperstimulation and transfer protocols so that the need for to “reduce” pregnancy is itself reduced.  Would laws that limit embryo transfer be constitutional?  Probably not, but that is another discussion.

I would be interested in hearing whether other state statutes are clearer and whether anything beyond what I have mentioned hinges on it.

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