Nearly a month after making a significant error in a story on legislation banning late-term abortion, the New York Times has finally issued a correction.
In a May 13 New York Times story on a House-passed bill that protects the lives of unborn children during the final four months of pregnancy, the paper reported: “Prohibiting most abortions 20 weeks after fertilization would run counter to the Supreme Court’s standard of fetal viability, which is generally put at 22 to 24 weeks after fertilization.”
As THE WEEKLY STANDARD noted on May 13, the Times‘s claim was false–the ban would take effect the same week in development when infants are able survive long-term if born prematurely. On Friday, June 5, the Times quietly deleted its erroneous sentence and published this correction:
The Times‘s correction is significant because Democrats’ primary objection to the 20-week abortion ban is that it takes effect prior to viability. The Times‘s correction makes it much more difficult for opponents of the legislation to get away with making that bogus argument.
So why did the Times commit this error in the first place? It seems that the paper confused two different (equally valid) ways of measuring the age of an unborn child. As the Washington Post “Fact Checker” reported on May 26, “states vary in their definitions for gestational age.” The House-passed legislation uses “posterfertilization age”–dating the age of child from the time of conception. Some state laws use the “LMP method” of dating a pregnancy, which actually begins about two weeks before a child is conceived.
On May 6, the Times ran a report with the headline: “Premature Babies May Survive at 22 Weeks if Treated, Study Finds.” “A small number of very premature babies are surviving earlier outside the womb than doctors once thought possible, a new study has documented, raising questions about how aggressively they should be treated and posing implications for the debate about abortion,” the Times reported. But the study referred to children at 22 weeks, which is the same as saying 20 weeks after conception.
It’s not clear why it took the Times so long to correct its error. On May 15, I sent Greg Brock, the Times‘s Senior Editor for Standards, this piece that explained their error. Brock informed me that they “are always eager to set the record straight,” but said: “I agree with the editor that we did not make any statement that needs correcting.”
I asked Brock if he could point to any evidence that the Supreme Court had asserted that viability occurs at “22 to 24 weeks after fertilization.” He didn’t provide any evidence that it had and simply reiterated: “I see no need for a correction.”
It could be that the Washington Post‘s May 26 report, as well as persistent efforts by Douglas Johnson of the National Right to Life Committee, finally led the Times to acknowledge its error. “I am aware of nothing whatever to suggest that the Supreme Court has ever had anything in mind other than weeks of pregnancy (LMP),” Johnson told me in an email. “That is the language of the litigants in abortion cases — ob-gyns, abortion providers, abortion advocacy groups. What they’ve had to say about viability makes a sloppy kind of sense in LMP terms but would make no sense in terms of fetal age. And so forth. Really, I am not aware of anybody who disputes this.”
Opponents of abortion argue, of course, that the Supreme Court’s standard of “viability” is an illogical one and would like the Court to abandon it. Viability, which is largely a function of lung development, cannot be what endows human beings with the inalienable right to life.
But viability is the standard that the Court and many politicians have clung to for decades. In Roe v. Wade, the Court defined viability as “potentially able to live outside the mother’s womb, albeit with artificial aid.” In the 1992 Casey decision, a plurality of Supreme Court justices held that the “soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future.” The opinion also asserted that the “viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.”
As the Court rulings make clear, it’s much more difficult for politicians to defend a right to post-viability abortions. The debate over post-viability abortion divides pro-choice advocates who believe in a mere right to end a pregnancy from those who believe in a right to a dead baby. It is possible to terminate a pregnancy without killing the child (by delivering her).
