Abortion: a principled politics.

THERE ARE several lessons to be learned from Republican George Alten's stunning victory in the Virginia gubernatorial election, but one of the most important is how a conservative can handle the divisive abortion issue.

In 1989, the Republican gubernatorial candidate, Marshall Coleman, wavered in his pro-life position when confronted by a staunchly pro-choice opponent, Doug Wilder. Vacillation cost him precious support--without gaining him any votes from the other side--and he lost a very close election. The candidate this time, Mr. Allen, facing a radically pro-choice Democrat, Mary Sue Terry, took a moderate position on abortion, stuck to it, and won.

In addition to favoring parental rights and informed consent, Mr. Allen's position was that a woman should be allowed to have an abortion only until the point in pregnancy when there is medical evidence of a hearbeat and brain activity. While a position like Mr. Allen's is not satisfying as a long-term goal to those who oppose abortion for moral reasons, it has the advantage as a short-term goal of being acceptable to the majority of Americans. Polls consistently show that between 15 and 25 per cent of the public are on each extreme of the abortion issue. That leaves 50 to 70 per cent of Americans in the middle. In the end, this majority will play the decisive role in determining the outcome of the abortion controversy.

According to a recent Gallup survey, 73 per cent of Americans support a prohibition on abortion after the first trimester of pregnancy (about ten weeks after conception). This survey shows that 82 per cent of those who are strongly pro-life, as well as 82 per cent of those in the middle, would support such a proposal. More surprisingly, even 46 per cent of those identified as strongly pro-choice agree that abortion should be limited to the first trimester.

Other polls have consistently shown that, while a majority of Americans support a woman's right to choose an abortion in the early weeks of pregnancy, a majority also believe that at some point the government acquires the right to intervene to protect the life of the unborn child. But what should that point be?

THE universally accepted medical and legal definition of the end of life is the irreversible cessation of all functions of the brain, as measured by a fiat electroencephalogram (EEG). Conversely, the presence of brain-wave activity is a "vital sign" of life. Brain-wave activity is consistently present by eight weeks after conception. (The heart has already been beating since three weeks after conception.) Thus the eightweek-old fetus is undeniably alive, according to the most widely accepted definition of life.

Furthermore, eight weeks is designated by scientists as the end of the embryonic period and the beginning of the fetal period. By then, every internal organ and external feature found in an adult human being has been established. The heart, kidneys, liver, stomach, and others organs are functioning, and all external bodily parts are formerd.

The educational impact of trying to accord legal protection to unborn children with both vital signs of life (heartbeat and brain-wave activity) should not be underestimated. The vast majority of Americans would undoubtedly be surprised to learn that the vital signs of life are present as early as eight weeks.

Furthermore, this proposal does not contradict the pro-life tenet that human life begins at conception. It merely establishes the most currently attainable point for beginning legal protection.

Of course, the Supreme Court would have to recognize that an eight-week limitation on access to abortion is constitutional. In its most recent abortion decision, Planned Parenthood v. Casey, the Court overturned Roe v. Wade's "rigid trimester framework." Nevertheless, the Joint Opinion by Justices O'Connor, Kennedy, and Souter reaffirmed Roe's "central" holding that "the Constitution protects a woman's right to terminate her pregnancy in its early stages."

However, the Joint Opinion defined "early stages" of pregnancy as any point prior to fetal viability: "Viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions." Viability is declared to be "the point at which the balance of interests tips" away from personal liberty and toward fetal life. However, fetal viability now occurs at 23 to 24 weeks' gestation. That is the end of the sixth month of pregnancy, an extreme definition of "early stages"-- especially since the Joint Opinion said it was merely recognizing the "constitutional liberty of the woman to have some freedom to terminate her pregnancy" (emphasis added).

The Joint Opinion asserted that the Court "must justify the lines we draw. And there is no line other than viabitity which is more workable." A line drawn at eight weeks, however, could be seen as being precisely more workable than a line drawn at viability because it can be justified by applying to the beginning of legally protected life the same medical and legal criteria now used to define the end of legally protected life. Furthermore, with modern ultrasound technology, physicians can easily delineate this eight-week point.

Nor would this new line place an "undue burden" on a woman's ability to make an abortion decision; it would leave ample time for her to decide whether or not to abort. A woman can easily discover she is pregnant, using an over-the-counter pregnancy test, by two weeks after her first missed menstrual period, corresponding to the fourth week after conception. This would leave her at least a four-week window to secure an abortion.

The Casey Joint Opinion concluded that a change in constitutional principle is an appropriate response to "facts that the country could understand, or had come to understand already, but which the Court in an earlier day, as its own declarations disclosed, had not been able to perceive." Several facts regarding abortion apparently have not yet been "perceived" by the Court.

To begin with, over 70 per cent of Americans believe that abortion should not be permitted during the second and third trimesters. This is something that the country has "come to understand already."

Second, the Joint Opinion justified its result, in part, on the ground that abortion must be available "in the event that contraception should fail." This was premised on the assumption that "[a]bortion is customari]y chosen as an unplanned response to the consequence of unplanned activity or the failure of conventional birth control." The available data, however, indicate that abortion has instead become a primary method of birth control. In 1978, 41 per cent of the women seeking an abortion in Utah reported that they had omitted their contraception or did not use contraception at all. By 1985, that number had risen to 66 per cent and by 1989 to 68 per cent. These statistics are typical. By providing unrestricted access to abortion throughout the first six months of pregnancy, Roe (and now Casey) discourage women and men from exercising sexual responsibility.

Finally, it is certain that a fetus will--at some point long before birth--feel pain. The purposeful dismembermerit generally involved in abortion would clearly inflict pain on a being with a functioning brain and central nervous system. Surely we are a compassionate enough society to seek to err on the side of the "little ones" (Latin meaning of "fetus"), by prohibiting abortion after the onset of brain-wave activity.

PUBLIC POLICY on abortion can only move in tandem with public sentiment. Public policy which reflects one extreme or the other in the current debate will only continue to polarize our society.

It is surpassingly important that we begin to move to some common ground--however uneasy--on this difficult issue. An eight-week limitation on abortion access represents just such a common ground. The time is now ripe to seize the initiative and lead our country to a creative response on this emotional issue.

Mr. Hemler was the rounding president of the Tri-Cities chapter of the Tennessee Volunteers for Life. Mr. Wilkins is a professor of law at Brigham Young. Dr. Fischer is a physician with the Children's Clinic PC in Kingsport, Tennessee.

---STEVEN R. HEMLER,

RICHARD G. WILKINS, AND

FRANK H. FISCHER, MD