One day about seven months ago, I was standing in a dark room in a hospital not far from Tel Aviv, performing an ultrasound on the taut belly of a woman well into her third trimester. She was 35 weeks pregnant, due in about a month. She and I felt the fetus kick, right under the ultrasound probe. “Strong one!” I said in Hebrew. She smiled. I managed to freeze a sweet picture of the bow-shaped fetal upper lip, and pressed “Print,” to give to her later.
Then I measured the fetal head, snug against her pelvic bone. The numbers on-screen suggested that it was too small. I measured it again. Still small. So I measured it again, and again, and again. Everything else in this pregnancy looked healthy: the volume of amniotic fluid, the general size of the fetus, the structure of the heart and brain. According to the woman’s chart, everything had been fine, all the way through.
At that point, I needed to tell her about that small head and what it might mean for her future child’s development. This is not uncommon; it’s a situation I’m used to dealing with easily. But in that room, I was overcome with a strong urge not to tell her what I’d observed, because I feared where that discussion might lead. I am an American ob-gyn. In most states in my native country, third-trimester abortions are illegal or nearly inaccessible. In practice, only a handful of facilities in the entire United States perform abortions after 26 weeks for nonlethal anomalies. But here in Israel, abortion is widely available and can be offered until delivery. A subtle abnormality, such as the one I saw in that ultrasound room outside Tel Aviv, can prompt a discussion of pregnancy termination. Even at 35 weeks.
Within the American abortion debate, I am pro-choice in a concrete way. Giving women information about their pregnancies and helping them assess their options, including termination, is part of my life’s work. When state legislatures in Georgia, Louisiana, and a host of other states have taken up bills to limit abortion rights, I have always known which side I am on.
But in that dark room so far from home, I was deeply uncomfortable discussing abortion with a woman 35 weeks into her pregnancy, when that fetus had no clearly lethal or debilitating problem. By then, I’d been living in Israel for about a year, and practicing medicine at a local hospital for about six months. In Israel, everything was different—perhaps including me. In that dark room, I felt lost, as I confronted the outer borders of my pro-choice beliefs.
Within obstetrics, my subspeciality is maternal-fetal medicine, or MFM. Physicians in my field care for women who face complications during their pregnancy or delivery, and we diagnose potential birth defects. I trained and practiced in the United States. A year ago, my family and I moved to Israel temporarily, for my husband’s work.
I do not provide abortions, and I haven’t for years. But I talk about abortion all the time, because doing so is a crucial part of the MFM job. In the United States, standard obstetric care includes a first-trimester nuchal translucency scan, as well as a second-trimester anatomy scan around 18 to 22 weeks. (In obstetrics, we measure gestational age from the pregnant woman’s last menstrual period, about two weeks prior to conception. A typical pregnancy lasts 40 weeks.) Those scans are almost always normal, a cause for pictures and celebration. But ultrasounds in somewhere from 2 to 3 percent of pregnancies show fetal anomalies.
Some anomalies are mild. A short surgery will fix a cleft lip, for instance. Other anomalies are far more worrisome: a heart malformation that will require multiple surgeries in infancy; a severe thickening of the back of the neck that, while signaling no imminent threat to the fetus, hints at a serious genetic disorder. In these cases, an MFM physician will almost always recommend an amniocentesis to get cells from the pregnancy that will give a fuller diagnosis.
Any serious prenatal diagnosis requires a long counseling session, in which one question is central: Do you want to end this pregnancy? The American College of Obstetricians and Gynecologists (ACOG), which largely defines the standards of practice in the United States, holds that “the option of termination should be discussed when a genetic disorder or major structural abnormality is detected prenatally.” In other words, ACOG tells doctors that we have to talk about abortion before we can continue care.
When a doctor objects to abortion, ACOG guidelines say, “there should be a system in place to allow families to receive counseling about their options”—including the termination of a pregnancy—“and access to such care.” This is the minimal ethical standard: A doctor who does not believe in abortion must, at the very least, point the way down that road.
I’ve never been that doctor. I have always discussed termination with my patients. Sometimes a patient immediately says that abortion is not an acceptable option for her, so we move on to other concerns: preparing for delivery, meeting the doctors who will be part of her baby’s postnatal team, supporting her pregnancy as best we can.
Usually the discussion of abortion is longer and more wandering. At first, the patient may feel unsure of where she stands. As we talk, she may return to the subject and ask more questions. Conducting this conversation requires as much surgical skill as operating on a pregnant uterus. There is no right answer, only one that is less wrong for each patient. This is an almost impossible conversation—and one that doctors like me must have every day.
When seeing patients in the United States, doctors will initiate this conversation before 23 weeks. That is typically a patient’s last opportunity to end her pregnancy—a timetable that helps explain why we generally schedule those diagnostic ultrasounds a few weeks earlier.
Key Supreme Court cases, including Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992, have built the right to abortion around the concept of fetal viability. The legal thinking goes like this: As long as a fetus cannot live independently outside a woman’s body, a woman’s bodily autonomy and right to privacy are the only relevant interests. Once the fetus reaches a point when it could reasonably live outside the womb—albeit with the help of technology—the state legally has an interest in the developing pregnancy and can constitutionally limit abortion.
As medicine has advanced, viability has steadily moved earlier and earlier in a pregnancy. When I finished medical school, a fetus was deemed viable 24 weeks and zero days into a pregnancy. By the time I finished residency, the point of viability had advanced to somewhere around 23 weeks and four days—23 + 4, in medical shorthand. Today it’s 23 + 0 for many institutions and creeping into 22 weeks. This doesn’t mean that those babies are healthy. According to the most recent data, only 2 to 3 percent of infants born from 22 + 0 to 22 + 6 survived long enough to be discharged from the hospital, and only 1 percent lived without severe and permanent consequences of extreme prematurity.
But the U.S. legal standard for abortion hinges on reasonable viability, not healthy survival. In the phase of pregnancy before viability, abortion is protected (in theory) as a constitutional right; afterward, it can be limited by states. The future of this standard is uncertain. Anticipating a successful challenge to Roe in the near future, some states have already passed laws limiting abortions at earlier and earlier gestational-age thresholds, and more states are expected to follow.
As long as Roe still holds, though, the sharp line it draws at the point of viability changes everything in an American ultrasound room. Suppose that I find a fetus with enlarged brain ventricles that, in rare cases, can be a sign of debilitating abnormalities. At 20 weeks, the finding would provoke the recommendation for amniocentesis; with the clock ticking, we’d want to identify any severe genetic disorders quickly. In some cases, I would warn the patient, these tests yield diagnoses that lead some women to terminate their pregnancy.
That same finding at 32 weeks would be handled differently. Getting an abortion after viability for a lethal fetal anomaly is still technically legal in parts of the United States. Women who pursue termination under these circumstances—most often after receiving a devastating fetal diagnosis deep into a desired pregnancy—have harrowing stories of navigating the procedure alone, far from home. A patient may borrow money, sometimes tens of thousands of dollars, and fly to another state, where she may stay in a hotel for a few days. Such women talk about crossing picket lines of protesters who are screaming at them not to do what they have already spent days or weeks weeping about.
In practice, these situations are incredibly rare, likely a tiny fraction of 1 percent of all abortions in the United States. When evidence of nonlethal fetal anomalies emerges after the point of viability, there’s less of a rush to reach a diagnosis, because ending the pregnancy is essentially off the table anyway. The conversation at 32 weeks is thus softer, more relaxed, and less urgent than at 20 weeks. I would discuss potential causes of those dilated ventricles and recommend some blood tests. I would mention amniocentesis. But most patients wouldn’t seriously consider it, because at this point in a pregnancy, it could lead to complications, including premature labor.
Without other abnormalities, more than 90 percent of fetuses with mildly enlarged brain ventricles have normal developmental outcomes. At 32 weeks, most patients take refuge in the likelihood that the pregnancy is probably just fine. At 32 weeks, I print out those cute pictures, and that American patient leaves my office, often without tears.
Different societies navigate the landscape of moral choices in different ways. In the United States, courts have recognized a pregnant woman’s autonomy over her own body, even as a potent movement led by Christian conservatives lobbies in the opposite direction. These opposing forces produce a strange outcome: Abortion is constitutionally protected as an individual right but, in much of the country, quite difficult to obtain.
Israel has struck nearly the opposite bargain. In this majority-Jewish country with deep socialist roots, abortion law has never been constructed around the idea of a woman’s power over her own body, or around the value of fetal life. The basics of abortion law were passed in the 1970s, and were largely built around demographic concerns in a tiny collectivist country that, at the time, was almost continually at war. Though changes have been made, those foundational laws still prevail. In Israel, terminations of pregnancy, regardless of gestational age, must go through a committee, a va’ada. Without its assent, an abortion is officially a criminal offense. But here’s the surprise: In the end, more than 97 percent of abortion requests that come before the committee are approved.
The va’ada can approve abortions for specific reasons spelled out by the law: if the woman is over 40, under 18, or unmarried; if the pregnancy is the result of rape, an extramarital affair, or any illegal sexual relationship, such as incest; if the fetus is likely to have a physical or mental defect; if continuing the pregnancy would endanger the woman’s life or cause her mental or physical harm. Some of these rationales, such as rape and incest, are familiar from the U.S. abortion debate. Other justifications, such as those involving the woman’s age or marital status, bespeak a certain amount of social engineering, and may strike Americans as odd matters for the law to take into account.
On paper, the va’ada system could seem very restrictive. Women still have to jump through bureaucratic hoops, and some have told me that they lied—for instance, by saying a pregnancy was conceived in an extramarital affair—to meet the legal criteria for termination. Some women circumvent the va’ada system entirely, paying significant sums out of pocket to private doctors who perform illegal terminations. (Authorities generally look the other way.) Yet if an abortion is approved by the va’ada, it is almost always covered by the universal health-insurance system and performed in a hospital by expert physicians. In short, a process that begins by making an abortion a committee decision usually ends with a safe, timely abortion covered by public funds.
Post-viability abortions in Israel undergo a weightier approval process. After about 23 weeks of gestational age, a woman must present her case to a va'adat al, a “higher committee” with more members and more senior doctors.
Under guidelines from the Israeli Ministry of Health, many of the acceptable rationales for abortion in early pregnancy—age, extramarital affair—are no longer automatically sufficient to justify a post-viability termination. For such an abortion to be approved, a fetal anomaly must have at least a 30 percent chance of causing either moderate disability (in pregnancies of 24 to 28 weeks) or severe disability (after 28 weeks).
If a 30 percent chance strikes you as a low threshold for an abortion at this stage, you’re not alone. Almost every American I’ve asked, whether a physician or layperson, finds that number shocking. After all, a 30 percent chance of an affected child is a 70 percent chance of an unaffected one.
In 2015, 93 percent of patients with post-viability pregnancies who applied to a va’adat al were approved. These late terminations, the overwhelming majority of which are approved for a fetal anomaly, represent 1.7 percent of all abortions performed in Israel; in comparison, they are 0.1 percent of abortions in England and Wales, and exceedingly rare in other European countries and the United States.
In deciding whether to raise the possibility of abortion with a pregnant woman, doctors in Israel may be responding as much to the tort system as to medical reality. While Israel is less litigious than the United States overall, a landmark Israeli Supreme Court ruling in 1986 eased the way for wrongful-life and wrongful-birth lawsuits. In a wrongful-life case, a patient born with a disability seeks damages caused by a doctor’s failure to offer an abortion; in wrongful-birth cases, parents are the plaintiffs. The judges who made the ruling had hoped to provide disabled patients with the financial resources necessary to live with dignity. But in the malpractice environment that ensued, the obvious way for doctors to protect themselves against lawsuits was to err on the side of counseling patients about termination.
Such lawsuits are rare elsewhere in the world. In the United States, wrongful-life and wrongful-birth cases have been restricted by legislation in many states. Anti-abortion groups that lobby for these restrictions fear that wrongful-birth lawsuits will lead doctors to recommend more abortions. More recent case law in Israel has created a more stringent legal standard, but recent statistics have shown that the number of suits continues to grow.
When termination of pregnancy is never off the table, it changes the way doctors like me practice. In the ultrasound suite, there’s always a chance I’ll have to initiate a traumatic conversation with a pregnant woman, no matter how far along she is.
I currently work at an Israeli hospital that doesn’t provide abortions. I have many ultra-Orthodox Jewish and observant Muslim patients who don’t pursue prenatal diagnosis, and I limit their ultrasounds and counseling as their convictions dictate. But pregnancy termination comes up frequently anyway. Many of the women I see as patients come to me after receiving care from other hospitals, often with thick files in their hands. The papers inside document ultrasound after ultrasound, MRIs of the fetal brain, genetics consultations. Almost always included is the phrase termination of pregnancy discussed.
When I trace back to the original ultrasound finding that brought such a patient to me, the potential fetal anomaly it identifies is often something—an increase in amniotic fluid, say, or a mild dilation of the brain ventricles—that would seldom raise the question of abortion late in pregnancy in the United States.
Outside of the hospital, I hear similar stories from Israeli colleagues and friends. After a request on social media, I ended up with a dozen stories of patients who had discussed abortion with their doctor late in their pregnancy. Many of these cases involved clinical findings that, to my American-trained eyes, just didn’t warrant it. One friend told me that, at her 37-week visit, when her fetus was measuring very small, with the fetal femur bones appearing shorter than normal, she was offered two options: She could go to the hospital either to have labor induced or to ask for a termination of her pregnancy. Same visit, same hospital, her choice. She laughs about it now, as that sweet baby nurses at her breast. When my friend was 37 weeks pregnant, though, it wasn’t funny; it felt both terrifying and cruel.
In Israel, the conversation about ending a pregnancy demands to be conducted, all the time, for almost any small finding—even when it’s not in the patient’s best interest, even when it’s really about protecting the doctor. And that’s why I was in that dark room, measuring and remeasuring that 35-week fetal head, trying to avoid what had to come next.
I was almost not brave enough to write this piece. In the United States, there are only two sides to abortion, and there is outrage on both. Anti-abortion activists will say that I’m a murderer, or an accessory to murder, because of the work I do.
I also hesitated for the opposite reason: Any time a pro-abortion-rights provider admits to any doubts, her ambivalence may be used to limit abortion care. One expert I interviewed for this piece said, “If you write how hard it is to counsel about abortions, please know this: Somewhere, someone will use that to stop women from getting the procedures that they need.” After that, I couldn’t write for weeks.
But there needs to be a way to talk about all the places in the middle of the abortion debate, where most Americans’ beliefs actually lie.
Since arriving in Israel, I have learned that I love practicing in a country with ready access to safe abortion. I have learned that I hate the rules forcing a woman to ask a panel of strangers for permission to end her pregnancy. The committee structure is demeaning and unethical, an affront to a patient’s autonomy over her own treatment.
Yet I have also learned that, in the absence of a clearly debilitating or lethal fetal abnormality, I am deeply uncomfortable with a termination of pregnancy at 35 weeks, or 32 weeks, or 28 weeks. That, it turns out, is well outside the limits of my personal pro-choice terrain. Indeed, I am uncomfortable even discussing such a termination with patients.
In my career as an obstetrician, I have cared for many pregnant women at risk of giving birth months too soon. I’ve prayed with women whose water broke much too early. I have fought for the survival of fetuses on their way to being born at 24 weeks. I’ve delivered a lot of 28-week and 32-week and 35-week babies, and often had their parents return to me with their healthy toddlers, smiling and chubby. I know how hard women will fight for those pregnancies; I know what they are willing to risk. I won’t bring up termination of pregnancy at that point—unless the alternative is worse.
Of all the American things I’m homesick for, it turns out the biggest one is Roe v. Wade. I miss U.S. abortion law terribly. In some part, that’s because it’s familiar. But it’s also because the structure of American law, if practiced as constitutionally legislated, works for most patients, most of the time—ethically, emotionally, and medically. The arrangement of U.S. abortion rights means that terminations center on a woman’s choice, but also that there’s a point in a pregnancy when abortion is off the table, except in the most dire of circumstances. And that means there’s a point in the pregnancy when everybody can relax, when we start to comfortably call the fetus a baby, when we can embrace the joy that accompanies a healthy, desired pregnancy.
In Israel, because abortion is never off the table, that relaxed time in a pregnancy never fully arrives. Telling women all their legal options is still part of my job. I am ethically required to have these difficult conversations about late abortion. I can honor that minimal obligation, though I never imagined I’d have so much trouble meeting it. When I return to the United States, what I’ll take back with me is this itchy strangeness of having to figure out where I stand.
In that dark ultrasound room in the fall, I asked the patient to wipe the gel off her 35-week belly and gave her a hand to sit up. I told her what I saw: The baby’s head was quite small. As the words in Hebrew left my mouth, I could hear that I’d conjugated the verb incorrectly, and I paused. She heard my American accent and softly corrected me.
I told her, then, that I thought the head size was probably not a problem; that measuring a head is difficult, once it has already settled in the maternal pelvis; that our measurements are more unreliable near term. I mentioned gently that anything with the brain can be tricky; that sometimes these things can be serious, even debilitating; that further testing for other problems is available.
“Most people ...,” I said. I paused, trying to get the words and the tone exactly right. I started again. “Most people wouldn’t consider doing anything further for what I just saw, much less something serious like amniocentesis or terminating the pregnancy. But if you’d like to talk to someone who can tell you about those things, or even just take a second look at the brain, I can send you to someone else.”
She was already shaking her head. “No,” she said. “No, thank you.” And then she asked: “Can I have that picture of the baby’s face? I want to show my husband; I think she has his mouth.”
I gave it to her. She smoothed the black-and-white film between her fingers, and smiled at it in her hand. And then she walked out the door.