When there is no good choice

By Jennifer Wolff Perrine

updated 8:20 a.m. ET June 9, 2008

It took Mary Vargas six months and repeated hormone shots to get pregnant with her second child. “We were so excited,” Vargas, 35, remembers about the day she learned the treatments had worked.

“We wanted this baby with every fiber of our beings.” In February 2005, her husband brought a video camera to record their sonogram at almost 19 weeks, because, Vargas says, “we wanted to appreciate every moment of this child’s life.” The technician revealed they were having another son. But partway through the exam, she fell silent.

Concerned and scared, Vargas’s husband turned off the camera.

The sonogram showed that Vargas’s uterus contained almost no amniotic fluid, the essential liquid that cushions a fetus and enables the uterus to expand, giving him room to grow and develop. Without enough fluid, over the course of the pregnancy a baby would be crushed by the weight of the mother’s organs.

The mother makes amniotic fluid until midway through the second trimester; afterward, it mostly comprises fetal urine. There was a chance that Vargas had a tear in her amniotic sac that would repair itself and that her son would start making the fluid on his own. But the more likely scenario was a condition called Potter’s syndrome, essentially a failure to develop working kidneys. Only time and more tests would give the couple absolute answers.

“Our doctor took great pains to be reassuring,” recalls Vargas, a disability-rights attorney in Maryland. “It seemed that he was being too kind for things to be OK.” Even after another doctor gave her son only a 7 percent to 9 percent chance of surviving, and only then with severe disabilities, Vargas held on to hope. “We wanted that little boy under any terms,” she remembers tearfully.

But she didn’t want him to suffer. She knew that if he had Potter’s syndrome, those were terms she could not live with. After more than two weeks of bed rest, consultations and tests, another doctor did an amnioinfusion, filling Vargas’s uterus with fluid to provide better pictures of the fetus. A technician held the sonogram wand to her belly, and the Vargases and their doctor watched the results projected onto a monitor near the ceiling.

“The doctor had his arms folded and just stared at the pictures,” Vargas says. “He was lost for words.”

What everyone saw above them that day was gruesome and heartbreaking. “The baby’s limbs were bent and broken, and he had facial deformities from being crushed,” Vargas says. Not only were his kidneys not functioning, but this had also prevented his lungs from developing.

Now nearly 22 weeks pregnant, Vargas had two choices: terminate immediately or wait, in which case she would miscarry at any point or spontaneously go into labor at as early as 28 weeks. If her son was still alive at his delivery, doctors warned, he would perish within a short time. And that death would likely be very painful for him. “As a parent, your job is to make sure your child doesn’t suffer unnecessarily,” she says. “He had no chance at life. What we had to think about was how he was going to die. It wasn’t about choice, because the option we wanted — to have our baby — was no longer available.”

Later-term abortions and the law
No woman wants to imagine ending an advanced pregnancy after her belly has begun to swell and she has felt her baby kicking with life. Thankfully, few women have to take this step.

Later-term abortions — those performed at 16 weeks and beyond — account for only 4.3 percent of the 1.21 million pregnancies ended in the United States each year, according to the Guttmacher Institute in New York City. These cases are often misunderstood, says Michael F. Greene, M.D., director of obstetrics at Massachusetts General Hospital in Boston. “Part of the strategy of [anti-abortion activists] is to demonize these women and make them into unsympathetic characters who view second-trimester abortion as a trivial decision,” Dr. Greene says. “I have never met a woman who didn’t agonize over this decision.”

In some cases, women seeking later abortions have irregular periods that prevented them from realizing they were pregnant; some become too ill or injured to safely carry to term; others would have aborted earlier but had to delay until they could save money for their care and the travel necessary to get it. But many times, say reproductive-rights activists, women have abortions at this late stage because tests have shown that the baby is not viable outside of the womb or will have debilitating, often fatal, health problems. “These are tragic occurrences,” says Nancy Keenan, president of NARAL Pro-Choice America, an advocacy group in Washington, D.C. “These are usually very wanted pregnancies.”

These tragedies are now at the center of the abortion debate. In April 2007, the U.S. Supreme Court upheld the constitutionality of the federal Partial-Birth Abortion Ban Act. In doing so, it banned for the first time certain methods of abortion, including intact dilation and extraction, a later-term procedure also known as D&X or intact D&E. Now, unless a physician can offer unequivocal proof that a patient would die without a D&X, the doctor risks being fined $250,000 and sent to prison for up to two years. D&X has always been a rare procedure, and there are other options for ending advanced pregnancies. Yet physicians argue that its criminalization is already threatening the quality of women’s health care and access to other kinds of abortions that remain legal — at least for now.

“We will see lots of copycat laws of the federal abortion ban, and the envelope will be pushed and expanded to include a longer list of banned procedures,” says Roger Evans, senior director for public policy, litigation and law at Planned Parenthood Federation of America in New York City.

Since the Supreme Court ruling, Louisiana and Utah have implemented bans on D&X procedures, allowing those states to impose their own penalties. (Louisiana allows doctors to be fined up to $100,000 and given “hard labor” jail terms of up to 10 years.) Eleven more states have introduced similar bills this year. “Even where state bans contain identical penalties to the federal law, they provide opportunities for state and local officials to investigate and prosecute alleged ‘violations’ — which can result in politically motivated witch hunts,” says Cathleen M. Mahoney, vice president and general counsel of the National Abortion Federation in Washington, D.C. The future for red-state providers may look something like the situation in Kansas, where an anti-abortion prosecutor and his allies have targeted clinics performing later-term abortions.

Thirty-six states prohibit almost all abortions after a baby is viable, but most don’t define when that is. Meanwhile, the new federal abortion ban and its state doppelgängers are written so broadly that doctors worry the penalties could apply to other procedures besides D&X, some performed as early as 13 weeks of pregnancy. The result is that patients and doctors can’t always be sure when it is legal to perform an abortion or what methods are allowed. “The vagaries of these laws mean that people who have provided second-trimester abortions in the past have become more cautious,” says Mark Nichols, M.D., professor of obstetrics and gynecology at Oregon Health & Science University in Portland. “Soon they may stop doing them entirely because of who is looking over their shoulder.”

The decision to terminate
For more than two weeks the Vargases had anguished while they waited for a definitive diagnosis. Now that they knew that their son, whom they named David, had no chance of surviving more than a short time outside the womb, they decided to terminate.

At first they considered an induction and delivery, which would give the Vargases a chance to hold him.

“But that didn’t seem like it was best for him,” Vargas says. “I can’t imagine that I would choose to be born into bright lights and alarms and not being able to breathe, even with my mother holding me.”

The doctor favored what’s called a standard dilation and evacuation (D&E), but felt the procedure needed to be done before 22 weeks of pregnancy in order to be safe for Vargas. Time was of the essence: “It was a Thursday, and we needed to find a doctor willing to come in on a Saturday because it would be too late for us if we waited until Monday,” Vargas says. A counselor in Vargas’s perinatologist's practice located a doctor, but that was only the first hurdle.

Vargas had been told her termination would cost between $4,000 and $12,000, depending on the procedure she and her doctors agreed on. She gets her insurance via her husband’s employer, the federal government, which has a long-standing policy forbidding employees from purchasing any health plan that covers abortion. Because she was paying out of pocket, she had to make a $1,000 down payment the night before her treatment started. “It felt like we were answering directly to George Bush, and that he was telling us what we were doing was wrong,” she says.

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