Mercy --Or Murder? Rubella Outbreaks Intensify Controversy On Abortion Measures

William M. Carley

Reprinted by permission of The Wall Street Journal, February 15, 1966.

Rubella is a trifling disease, hardly more bothersome than a cold to those who contract it. But this illness, commonly known as German measles, is now at the very center of a raging dispute over a major medical, legal and social problem - abortion.

Contracted early in pregnancy by a mother-to-be, rubella can damage the embryo and result in the birth of a child with serious defects. This has long been known, but only in the past year has research begun to uncover the full extent of its impact: Rubella mothers have been giving birth to children with damaged livers, spleens and bones, as well as with such previously known defects as blindness, deafness, mental retardation and damaged hearts.

Much of this information has been gathered in the wake of rubella epidemics that have been marching across the country from East to West during the past three years. Dr. John Sever of the National Institutes of Health estimates that 30,000 defective babies may be born in the U.S. before the epidemics run their course; abnormalities still are cropping up in babies born on the West Coast and Hawaii.

Uncertainty Till Birth

The risk of some damage is high. Normally, about 1% of all babies born are defective. But one study indicates that more than 33% of those mothers who contract rubella in the first three months of pregnancy will give birth to damaged children - and there is no way to be certain whether a child will be abnormal or not until it is born.

Most mothers, of course, are going ahead and having their babies. In many cases, even if the baby is damaged, the damage is slight, or if it is serious, it can be repaired by an operation after birth. But to more than a few fearful women, abortion seems the only answer, and in many of these cases their doctors have been abiding by their wishes. This, however, flouts the law, for in 44 states abortion is legal only when performed to save the life of the mother.

The conflict between what the law says about abortion and what rubella can do to the unborn has added more force and urgency to demands for revision of abortion legislation. The groups demanding changes want to make abortion legal when there is a relatively high risk that a baby will be deformed, but they do no stop there; they also want abortion legalized in cases of rape, incest, and in order to preserve a pregnant woman's mental and physical health -- not just her life. There are many, too, who want to make abortion legal in any and every case in which a pregnant woman requests it, whatever the reason.

The impact on the controversy of medical research, improved treatment, and new drugs has been profound. There are, of course, the recent rubella findings. Also, three years ago, Thalidomide became the first drug ever proven to cause deformities in the unborn, whipping up an earlier storm of protest over abortion laws. And medical advances through the years have sharpened debate by nearly eliminating legal grounds for abortion under todav's laws.

Moral Questions Loom

In New York City, for example; abortions performed because the expectant mother had tuberculosis dropped to 3 per 100,000 live births in 1960-62 from 33 in 1951-53. Similarly, abortions performed because the mother had rheumatic heart disease dropped to 7 per 100,000 live births from 25 in that same period of time. Thus the only excuse for legal abortions in most states is disappearing - while other reasons, morally ticklish ones not covered by the laws, have arisen on every hand.

Frequently, then, parents and doctors who favor abortion face a classic dilemma - obey the law and risk the birth of a deformed child, or remove that risk by abortion and in doing so break the law. Supporters of more liberal legislation suggest that a fetus with a great chance of being defective could easily be aborted and, they say, could be followed by another, more risk-free pregnancy. This would save many mothers and children years of anguish, they say.

Their opponents express compassion for mothers faced with the possibility of giving birth to defective children, and say that society should help them in every way. But they maintain that a mother's difficulties should not be solved by snuffing out the life of an innocent human being. This, they say, amounts to murder.

Dooming Normal Babies

A Los Angeles obstetrician, Dr. A. C. Mietus, notes that although rubella often leads to defective children, the majority are born normal. To legalize abortion in rubella cases, he adds, would doom more normal fetuses than abnormal ones.

Even if a baby is destined to be born with defects, say those who oppose changing the laws, what man should judge what is an acceptable or unacceptable level of fitness? Thus, they argue, who can take the responsibility for ending the life of, say, a man such as Charles Steinmetz, a hunchback

who discovered some of the basic laws of electricity? The mothers and doctors who make this decision themselves are playing God, say those who oppose changing abortion laws. Faced with these alternatives, a number of doctors and hospitals have made a choice. Quietly and consistently, they are breaking the abortion laws.

For example, a doctor who has surveyed records at two hospitals in Buffalo, New York,reports a total of 24 abortions in each of the past two years were performed on rubella mothers. There were only two rubella abortions at the same hospitals in 1963. Like most states, New York permits abortion only to save a mother's life.

In New York City, the Academy of Medicine's public health committee reports: "An examination of existing practices in New York City reveals that reputable staff physicians in reputable hospitals have been performing therapeutic abortions" when the health of a mother or the possibility of an abnormal birth is involved. The committee adds: "This practice does not conform to the letter of the law." The academy supports changes in abortion legislation.

On the other side of the country, two Stanford Law School teachers who also favor broadening of the law surveyed 29 hospitals in the San Francisco and Los Angeles areas a few years ago. Of 24 that responded to one of the questions, 18 said that some abortions were performed on their premises which were not "strictly" permitted by California law (the same as New York's).

The investigators also framed a series of hypothetical medical cases and asked the hospital to decide whether or not they would permit abortion. In clearly legal cases, 88% said they would. In the questionable cases, 64% said they would. And in cases clearly illegal, 35% said they would.

Enforcement Lax

There has been no attempt to enforce abortion laws when procedures are carried out with proper safeguards. An article in a recent issue of the Journal of the American Medical Association, written by attorney Zad Leavy and Dr. Jerome Kummer, says: "It is an accepted fact that pregnancies are terminated by reputable physicians in licensed hospitals for reasons other than to preserve the life of the mother, e.g., on health, humanitarian, and eugenic grounds, and thus in open violation of the law. But if these interruptions are performed with concurring written opinions of other physicians and with approval of the hospital's therapeutic abortion committee, there is no trouble from law enforcement officials. We have found no recorded prosecution under such circumstances."

Many doctors and hospitals likely will continue to wink at the laws unless they are changed. This, in itself, is used as an argument by those who are pressing for liberalization. Look at all the abortions being performed illegally at hospitals, they say. Isn't this evidence that the laws are unworkable and that public and medical opinion is in favor of less stringent legislation?

Their opponents argue that since it is fundamentally wrong to terminate a pregnancy, except to save a mother's life, then the laws should prohibit it even if actual enforcement is lax. The very existence of the law, they say, creates a moral climate that deters many, if not all, attempts at abortion.

Reform Efforts Fail

Nevertheless, advocates of change have been pushing hard to get the laws broadened - with little success so far. In New York, a bill allowing abortion to preserve a mother's health, or in cases of rape, incest, or potential malformation of the baby, was introduced in the state legislature last year. The first such bill to be introduced in 20 years, according to its sponsor, it never even got a hearing.

Proponents of change had no better luck with the American Medical Association, although many of its individual member physicians favor more liberal laws. Last November the AMA committee on human reproduction urged that the parent body speak out in favor of loosening abortion laws in all the states. It was the first time the AMA has ever considered such a proposal. But it decided merely to consider conferring with other organizations about the abortion problem.

The advocates of change remain undis-couraged, and are pressing their efforts on many fronts. "We're still working like mad," says Dr. Robert Hall, president of the Association for the Study of Abortion, which backed the New York State bill that failed. To obtain support for abortion to preserve a mother's mental health, the association is now polling 15,000 psychiatrists across the U. S. The results will probably be presented to legislators.

Dr. Russell's Crusade

The battle to broaden the legal grounds for abortion is reaching its highest pitch in California. There Dr. Keith Russell, a Los Angeles obstetrician, is spearheading an effort to obtain support for easing the state laws. Dr. Russell's group has been circulating letters arguing for liberalization among clergymen, psychologists, social workers, doctors and lawyers. So far more than a third of the state's obstetricians and gynecologists have signed petitions supporting the Russell position. The idea also is backed by the state medical association, the state board of public health and the deans of five California medical schools.

The drive has divided church leaders. Catholic clergy and some Protestant ministers oppose easing the law, but other churchmen, including Episcopal Bishop James Pike of San Francisco,strongly favor doing so. At legislative hearings held in 1964, Bishop Pike's representative said abortion should be permitted even for 12 and 13 year old girls who were rape victims, and warned of the dangers of venereal infection to children sometimes bom of such atrocities. He condemned "our . . . archaic abortion law, which forces even the youngest rape victim to produce a baby which may be born blind with gonorrhea or permanently ravaged by syphilis. In the name of God, is there any sanity or decency in such a law?"

William M. Carley a Staff Reporter for The Wall Street Journal