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Editorial: Update abortion law, but not at the city level

Much has changed since 1973 in the fields of science, technology and medicine – including in obstetrics.

Since 1973, once futuristic-sounding procedures like in-vitro fertilization and intrauterine surgery on fetuses have become routine. The survivability of prematurely born infants has improved dramatically. At least two infants, a German and a Canadian, survived birth just 21 weeks and five days into pregnancy.

Advancements in ultrasound technology have made it almost 3-D clear that the product of fertilization looks a lot more like a little human and a lot less like a blob of tissue much earlier in a pregnancy. Today, it is so routine that one Albuquerque business offers ultrasound baby showers.

One thing that hasn’t changed since 1973 is the U.S. Supreme Court’s Roe v. Wade decision defining abortion rights in America.

In Roe v. Wade the court decided that the “right to privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” up to a point. It went on to leave the abortion decision during the first three months solely up to the medical judgment of the attending physician and permitted state regulation after that.

It further states: “For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” To this day, doctors organizations place viability at about 24 weeks.

Though the Supreme Court is good at settling legal issues, it sometimes is ineffective in resolving their moral and ethical components. Its infamous 1857 Dred Scott v. Sandford decision figured into the Civil War. Its Bush v. Gore decision of 2000 remains a divisive point in U.S. politics. Yet both were legal rulings made by the same body that decided Roe v. Wade.

In 2013, 40 years after the Supreme Court ruled on abortion, the nation remains deeply divided on the issue. According to a Gallup poll released this May, 48 percent of the sample considered themselves to be “pro-life,” or against abortion, and 45 percent “pro-choice,” or in favor of abortion rights.

On Tuesday, registered voters who are Albuquerque residents will be asked to decide if the city should limit how late into pregnancy an abortion may be conducted here. Currently, Albuquerque is one of only four places in America where abortions are performed for any reason throughout a pregnancy, and women from across the nation travel here for late-term abortions. The doctors who perform them live out of state.

On the ballot, the initiative is called the Pain Capable Unborn Child Protection Ordinance. Its proponents say the law is necessary because recent science shows fetuses as young as 20 weeks are developed enough to feel pain, therefore abortion after that time is an act of cruelty. As evidence, they point to the anesthesia and painkillers now used by surgeons operating on fetuses in the uterus. Opponents say the drugs, which include muscle relaxants and narcotics, are meant to prevent maternal pain, immobilize the fetus, relax the uterus and block a fetus’s hormonal stress response.

There has been some confusion about the initiative – voting yes means abortion after 20 weeks should be prohibited in Albuquerque; voting no means the practice should continue.

Fetal-pain laws, which have been passed in 12 states, usually ban abortions 20 weeks after conception. That is about 22 weeks gestational age as measured by scientists – from the last menstrual period, since conception cannot be pinpointed. An unborn baby typically spends about 38 weeks in the uterus, or womb. The great majority of abortions occur before 20 weeks.

It’s true passage of this initiative will lead to litigation. Groups such as Planned Parenthood and the American Civil Liberties Union typically sue when any restrictions on abortion are legislated. But the threat of a lawsuit is not reason enough to vote yes or no. Lawsuits are just another cost of democracy.

Since 12 states have already passed a 20-week limit, legal challenges elsewhere are expected to wind up before the U.S. Supreme Court. But no one can positively say how justices will rule, so concerns about future court actions are not reason enough to vote yes or no.

But attempting to deal piecemeal with issues like abortion at the city level does not make sense. For that matter, neither did the recent minimum wage question that also landed on the city ballot by petition initiative. These broad questions are better resolved at the state or national levels.

And that is the fatal technical flaw in this initiative. If the law is passed Tuesday and survives legal challenges, the Texas doctor who owns the Albuquerque clinic could simply pack up, move a few miles away to the county and reopen shop.

So rather than addressing in a meaningful way the question of at what point a developing fetus should be accorded legal consideration that should be weighed against a woman’s right to control her own body, the practical impact of Tuesday’s election is reduced to making a statement.

It is understandable that those who circulated petitions to get this vote have taken this route after decades of unsuccessful efforts at the state and federal level; and they did follow the rules set up by the city for an election, though that set-up is badly in need of reform.

But ultimately city elections should be about concerns the city can meaningfully deal with. This is not an issue that can be dealt with at the local level. The Journal recommends a no vote on the initiative.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.