Now that the Zika virus has been confirmed in mosquitoes of Miami Beach, concern about the spread of the disease in the United States has taken on new urgency. Zika is a virus that is transferable by mosquito bite or sexual intercourse. Generally, in adults, the virus is harmless—causing common cold symptoms in an infected person for about a week. But, the risks escalate exponentially if a pregnant woman is infected. When diagnosed with the Zika virus, the unborn fetus carries up to a 13% chance of developing microcephaly—a permanent, incurable condition where a child is born with an undeveloped brain, leading to seizures, developmental delay of basic motor functions and speech, intellectual disabilities, decreased ability to learn and function; movement difficulties, inability to consume nutrition, hearing deficits, and inhibited vision. An otherwise normal fetus carries a .02 to 12% chance of developing the disease.
It is difficult to discuss the legal and medical treatment of Zika without broaching the subject of abortion. A woman infected with Zika obviously has two choices: (1) continue her pregnancy, carry the fetus to term, and give the child the best life possible, no matter the circumstances upon birth, or (2) abort the pregnancy to spare both her and her child the hardships—financial, emotional, psychological, medical, and physical—posed by microcephaly. But, how much of a choice do women experiencing Zika complications really have?
Under the current federal abortion framework in the United States, the right to choose to have an abortion is fundamental before the point of fetal viability so long as the woman and physician conform to valid state-imposed restrictions. Post-viability, however, abortions are not permitted unless the procedure serves to protect the mother’s health or life. Moreover, many States ban all or most abortions later in pregnancy, regardless of current constitutional guidelines on the subject: banning the termination of pregnancy at twenty weeks, at viability, or in the third trimester or allowing a later-term abortion only to save a woman’s life.
To understand the practical implications of the emergence of the Zika virus in the context of the abortion debate, we turn to Brazil’s response to the growing crisis. Because of a rich history of religious influence on its electoral systems and political composition, Brazilian policies mirror religious prohibition against abortion. In nearly all circumstances, abortion is a crime in Brazil, punishable by a sentence of three years’ imprisonment. A developing nation with one of the most restrictive abortion laws, Brazil’s government has been forced to adopt failing strategies to combat Zika. Before the threat of Zika, Brazil’s Ministry of Health concluded that illegal and botched abortions in Brazil outpaced legal and medically-necessary procedures by 100:1. Women faced the risk of infection, serious injury, or death as the result of a botched procedure. Since Zika arrived in Brazil in mid-2015, the scope of danger posed by an abortion has changed: the government has recorded 3,600 infected, pregnant women, all of whom are legally required to carry their fetuses to full term unless the fetus is confirmed to be missing a significant portion of its skull. As the infection rate increases, the rate of illegal, unhealthy abortions—included but not limited to jumping off roofs and using unsanitary facilities—will only continue to increase. Without a Zika exception to abortion regulations, danger to pregnant women will only rise.
Brazil, compared to the United States, indicates that developing and developed countries alike are facing the same challenges with the rise of the Zika virus, posing both technological and legal challenges. If a woman is told on day one of her pregnancy that she is infected with the Zika virus, she has, at most, a 13% chance of her fetus being born with microcephaly. Doctors, however, (in Brazil and the United States alike) currently cannot detect microcephaly until late in the pregnancy via ultrasound. Hence, most of the time, a woman cannot be sure if her fetus will be born with microcephaly until too much time has lapsed for her to obtain a legal abortion, forcing women to bet on a 13% chance in the early stages of pregnancy.
Zika is but one example of how genetic disorders complicate abortion jurisprudence and the deeply personal choice inherent in the discussion. Reacting to this moral conundrum in the political sphere, state legislators around the country are proposing legislation to ban abortion based on fetal abnormality. Texas, for example, is addressing an abortion ban at the 20-week mark; moreover, with a more conclusive microcephaly diagnosis at week 28, parents lose the choice to abort their fetus. We propose that Zika and the resulting microcephaly presents a heightened concern that justifies a further look into how abortion laws may need to be adjusted. Some genetic disorders, such as Down Syndrome, may be discovered as early as 15 weeks of gestation, which is much earlier than the confirmation point for microcephaly. Further, the onset of microcephaly as a result of Zika is completely unexpected and difficult to predict; whereas, testing for other genetic disorders, like Down Syndrome, is routine and earlier in the pregnancy. A woman may be infected with Zika and face the risk of her fetus having microcephaly in the first two weeks of pregnancy or in the last two months of pregnancy; it is completely random. Also, the conditions onset by microcephaly are much more debilitating and extreme than those of other genetic disorders like Down Syndrome, accounting for an almost complete loss of quality of life.
Here is the narrow issue in the Zika context: What happens if a woman is infected with Zika post-viability, or is forced to make a decision about her pregnancy based on a 13% chance of a debilitating condition? Zika is not necessarily a risk to the woman’s health but, rather, is a risk to the health of the fetus. Such fetal risk is not necessarily in the abortion framework’s exception to the ban on post-viability abortions. Again, an instance where law and medicine collide in this debate; thus, we would suggest that Zika is a phenomenon that the United States must confront and, in doing so, should consider carving out an exception to the legal ban on post-viability abortions to protect the fetus when the mother decides that it is the best decision to abort the pregnancy.
Max Solomon is a 3L at the Florida State University College of Law. Before law school, he received a BA in History and International Affairs and an MS in Political Science from the Florida State University. His legal and research interests include public international law, employment, and election law. Outside of law school, he sits on the ABA Committee for Constitutional Affairs and Social Justice, researching legal and public policy issues related to election law, voting rights, and legislative term limits. He hopes to find a career that combines his interests in international affairs and helping the disadvantaged navigate the legal field. He currently works at an elder law firm in Tallahassee, Florida.
Melanie Kalmanson graduated Magna Cum Laude from the Florida State University Law Review in May 2016. In law school, she served as an Executive Editor on the Florida State University Law Review and a Governor on the Florida Bar Young Lawyers Division Law Student Division and has several pieces published focusing on constitutional law, specifically individual rights, and family law, specifically child custody and domestic violence. Her long-term career goals include becoming a law professor.
 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973).
 For detailed information on individual state legislation on abortion, see https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions.