Column: Texas Bans Pregnancy Terminations with Medical Consequences

The Governor of Texas proclaimed, “Our Creator endowed us with the right to life…” as he signed the bill that will effectively ban pregnancy terminations in Texas and will probably end most organ transplantation in America. He was photographed at the signing, from which the press was excluded, with dozens of white men (I counted just over 50) and eight white women crowded in beside and behind him. 

The bill was intended to end some reproductive rights for women in Texas, and consequently there was a need to include some women in the photograph, so that one might not conclude that this was an initiative backed only by white men. Since one in eight Texans identify themselves as Black or African-American, their absence from the photo is peculiar. There was really no need to pack the already over-crowded room with a few women. America, of course, already knew that some women in Texas enthusiastically backed this measure. We also know that there are many Taliban wives who support honor killings of unmarried, pregnant women.

You may have thought the bill was intended to keep women from committing the “sin’”of abortion, a procedure only recently recognized as immoral by some Western religions. Prior to the 20th century, it was widely accepted that men implanted seeds in women that occasionally developed into infants. Women, it was thought, served as the hothouse for the nurturing of what were viewed as miniature, male and female versions of the father. Women were viewed as mere custodians of the seeds planted by men, a view that apparently still prevails in several male-dominated state legislatures.

I am not an authority on religion or sin and cannot comment on how “Our Creator” must be feeling about this legislation. I shall leave that to the Texas Legislature and other governmental bodies lining up to outlaw this medical procedure. It was the U.S. Supreme Court that decided in 1973 that it was a medical procedure that involved privacy issues for both the patient and the physician. Legislatures were deemed inappropriate venues for deciding the need or appropriateness of medical procedures. The decision was left to the patient in consultation with her physician and whomever else she sought guidance from. Some Americans felt it was immoral to let doctors and women make this decision, but it took nearly 50 years to get a Supreme Court that agreed.

Although the Texas governor invoked “Our Creator” at the bill signing, this legislation obviously could not involve religious issues, since the First Amendment to the Constitution established that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Obviously, the governor was referencing a nonreligious entity when he began his self-congratulatory speech. He certainly meant no disrespect to the numerous religions that do not claim belief in a single creator or to the numerous Americans who either reject or are indifferent to the view that we are the product of a God or gods.

My viewpoint as a physician is that this bill will have a ripple effect that will set American medicine back decades. The law states that a woman cannot terminate a pregnancy, even if she has been raped or is the victim of incest, if the fetus has a “detectable heartbeat.” In most cases, current technology can detect a fetal heartbeat by six weeks after the (male) sperm successfully penetrates the (female) egg, an event called conception.

Since few women know that they are pregnant prior to six weeks from conception, they no longer have the option of terminating an unwanted pregnancy. If your daughter or wife or mother or sister is “date-raped’ after being drugged at a fraternity party, company holiday party, or other such venue, it is highly unlikely that she will know that she is pregnant prior to six weeks after the unwelcome sexual contact. In Texas, she will be denied the option of terminating the rape-based pregnancy.  After all, according to those men in the governor’s photo op, it is not the fetus’s fault that it occurred and survived. “Why punish an innocent fetus,” they ask, and what does this have to do with organ transplants?

Simply put, this law establishes that a collection of tissues with no self-sustaining human nervous system, but with a functioning (although not anatomically “human”) heart needs to be recognized as and treated as a person. In Texas you cannot kill a person unless he or she is convicted of a serious crime or he or she threatens you and you opt to “stand your ground” and gun down the scary person. There may be other justifications for murder in Texas, but if you are a fetus with what looks like a beating heart, you are safe. 

Of course, if you exit the uterus (womb) any time after that cardiac tissue starts contracting, your mother and her doctors are obliged to treat you as a citizen of Texas, and as such you warrant all the care and support justified for the care of a “person.” According to the Centers for Disease Control (CDC), about 11 % of all births in Texas are already considered premature without the inclusion of spontaneous abortions. Under the new law, denying support to any fetus with a detectable heartbeat must be considered reckless endangerment at the very least or negligent homicide, even if the fetus is only 15 weeks old when it exits the womb, an age at which the developing Texan is generally considered unsalvageable. Texas will need to ramp up its newborn intensive care units and invent techniques for growing human fetuses.

But what about organ transplants? Seventy years ago, a person was considered dead when there was no detectable heartbeat, but when organ transplantation, especially of the heart, became an option, the definition of death was changed. In an accommodation to the exploding organ transplant industry, physicians (such as I) reached a consensus that death would be redefined. That you had a beating heart was no longer the basis for determining whether you were alive or dead. Under the new, and admittedly arbitrary, criteria, a person was no longer considered living when his or her brain showed little or no activity. 

Primitive parts of the brain could still be functioning and generally had to be for the patient to be a viable organ donor. Once you removed that beating heart and did not replace it, you had a corpse, but even before your heart was removed, you were considered legally dead if you met the criteria for “brain-death.” The Texas law has resumed defining human life according to whether or not there is evidence of a beating heart.

How then can you take a heart or kidneys or lungs from a person with a healthy, beating heart when the law forbids you from performing a lethal maneuver on a “person” (the fetus) with a beating heart and little in the way of brain tissue? The fetus and the “brain-dead” organ donor must be legally equivalent. Neither is guilty of anything, unless you restrict organ harvesting to your executed convicts. Neither the fetus nor the “brain-dead” has a nervous system that can support adult or even infantile human activities. 

But, you argue, the-six weeks-old fetus is a “potential” human being. A few decades ago, your “potential” human being argument had some traction, in that sexual reproduction was the only option for creating additional members of our species. Now we have cloning. Cells outside the womb can be induced to produce individuals genetically identical to you. This means that countless living cells of your body represent potential human beings, and yet you do not ask the surgeon to take that material he or she just took from your belly or your nose and put it in the deep freeze for the option of producing more “YOUs.” 

Your surgeon is discarding millions of potential human beings genetically identical to you when he or she discards that tissue.This is not as absurd as it may sound. China has already outlawed human cloning. Now that it has been outlawed, it will thrive.

Dr. Lechtenberg is an Easton resident who graduated from Tufts University and Tufts Medical School in Massachusetts and subsequently trained at The Mount Sinai Hospital and Columbia-Presbyterian Medical Center in Manhattan.  He worked as a neurologist at several New York Hospitals, including Kings County and The Long Island College Hospital, while maintaining a private practice, teaching at SUNY Downstate Medical School, and publishing 15 books on a variety of medical topics. He worked in drug development in the USA, as well as in England, Germany, and France.