Daniel Callahan. Family Planning Perspectives. Volume 11, Number 5. Guttmacher Institute, Sep-Oct 1979.
There are at least three important questions to consider in any attempt to propose a government policy on the availability of abortion services. The first is whether it is theoretically possible to devise a policy that is coherent and consistent—a policy that makes rational sense in its own terms. The second is whether it is possible to devise a coherent and consistent policy that would be politically and morally acceptable—a policy that citizens would be prepared to accept or tolerate in numbers sufficient to allow the policy to be effectively implemented. The third question is how, in the pursuit of a coherent, consistent and acceptable policy, the public debate on abortion should be carried out—that is, what should be the tone and rules of civil discourse on the subject?
A “consistent and coherent policy” is one that is not inherently self-contradictory, does not show a discrepancy between its moral and political premises and its actual proposed implementation, and does not include arbitrary discriminatory features.
It seems quite easy, up in the pleasant and trouble-free heavens of pure theory, to conceive of such a policy. One coherent and consistent policy would be the outright prohibition of all abortions, backed by appropriate legal sanctions and sufficient funds to enforce the penalties, invariably applied in non-discriminatory ways. An equally coherent and consistent policy would be one that proclaimed the right of any woman to obtain an abortion, implemented by programs and practices and public funds that ensured that any woman who wanted an abortion could get one. Such programs would have to include convenient access to abortion services, the availability of those services regardless of ability to pay and the availability in those programs of physicians and other appropriate personnel prepared to deliver the services without discrimination.
These two conceivable policies, although mirror opposites, share those features necessary to make them coherent and consistent: They take their own premises with full seriousness and follow through from them to actual programs and policies.
It would be extremely difficult actually to proclaim and enforce such a fully coherent and consistent government abortion policy in this country at the present time. The best we are likely to get is an approximation—a policy that might begin with a set of premises that are clear enough, but that almost certainly would be bedeviled by enormous problems if one were to implement it consistently and fairly. Perhaps that is the fate of any major public policy on any subject; it has to contend with forces, groups and individuals who believe it is wrong.
A policy to prohibit abortions would certainly encounter a number of obstacles: an unwillingness on the part of many state law enforcement agencies to carry out the letter of the law, or a tendency to put the investigation and prosecution of abortion cases so down on the list of priorities as to render them meaningless; the willingness of many physicians to risk breaking the law because they would know that the opinion of the public and of their medical colleagues was divided, and that the enforcement of the law would be minimal at best; the willingness of many desiring abortions to break the law because they would feel it was their moral right, or would be led by desperation, to do so, or would know—given the divided state of popular and professional opinion—that they could always find significant support for their actions. Even before the liberalization of several state abortion laws in the late 1960s and early 1970s, and well before Roe v. Wade and Doe v. Bolton in 1973, many physicians were willing to perform illegal abortions, hundreds of thousands of women were prepared to obtain them and very few law enforcement agencies sought to enforce the laws against them. It seems unimaginable that now—after nearly a decade of increasingly available legal abortions—that a policy to prohibit abortions could muster the necessary political and moral support to effect even a partial implementation.
The likelihood of a fully coherent and consistent abortion rights policy has to contend with some formidable difficulties as well. Many physicians will not perform abortions, whatever the financial or other inducements, and many hospitals will not permit them. In many areas of the country, this resistance, abetted by local lay resistance, already denies abortions to many women or creates considerable inconvenience and cost to those who wish to obtain them. It is hard to imagine any legislative remedy for the kind of inequity this situation creates; there is no constitutional way to force physicians who morally reject abortion to perform them. The success of pressure and interest groups in making effective use of the legislative and funding process to cut off public financial support for abortions indicates the vulnerability of abortion rights positions. And if legislatures and public opinion are deeply divided on abortion, it takes no great prescience to predict that future court decisions could go either way, with close votes whatever the outcome. In sum, given the confused and divided state of public opinion, with at least a large, organized and vocal minority rejecting government support of abortion rights programs, there is little reason to think that a coherent and consistent abortion rights policy has any greater chance of full implementation than would a fully coherent and consistent policy to prohibit abortions.
Realistically, then, there appears to be no immediate prospect of a government policy that is fully coherent and consistent. For all its political power and moral support, the abortion rights position does not command a strong enough following to see its policy position fully implemented. For their part, those who would prohibit abortions, who also have considerable political power, have negative leverage only; they have shown that they can successfully interfere with abortion rights efforts to implement their policy, but they do not command the kind of support that would allow their own policy to be the positive policy of the nation. In point of fact, neither of these polar positions encompasses the ambivalent, even ambiguous, positions of the majority of Americans as to the morality of abortion and the conditions under which they believe it should be performed.
In offering such a judgment of the present political climate, I have already implicitly offered an answer to the second question posed at the outset of this article: Can there be a policy that is coherent, consistent and politically acceptable? If that question is understood as bearing on the immediate likelihood of implementation of such a policy, my own answer would be no. Neither side commands enough support to win the field with its own policy; both sides can expect partial victories. If that is true, then the abortion rights position is left with two formidable goals to accomplish. The first goal is that of demonstrating not just its moral convictions (for moral convictions are never in short supply in abortion debates), but also that both its convictions and its sensibilities take into account the views and respect the convictions of those with whom it disagrees. While its record in that respect is, I think, a better one than that of those who would prohibit abortions, it is not unblemished. The second goal is to formulate a proposed policy that, if not acceptable in the end to the most zealous and single-minded abortion opponents, would at least be acceptable to those who are ambivalent as well as to those who believe in freedom of choice. I will first address myself to the second goal.
It is tempting to think that the most attractive and potentially acceptable government policy would be one of “neutrality.” A “neutral” policy could be conceived of as one that posed no governmental obstacle to women seeking an abortion, that guaranteed that no woman would be forced to have an abortion, and that protected the rights of physicians and others to perform or not to perform abortions according to the dictates of their consciences. A policy of strict neutrality would entail a stance that favored neither one side nor the other in the abortion debate, explicitly or implicitly, and equally protected the rights of all, whatever their attitudes about abortion. Unfortunately, a very high price would have to be paid for that kind of neutrality. At the least, it would mean that the government could neither organize nor support any educational or service programs to provide for the delivery of abortion services, and that it would have to close its eyes to the injustices created by a laissez-faire system of services. Moreover, to those who consider abortion the taking of an innocent life and the ceding to women a power over life and death they should not have, such “neutrality” could only be seen as clearly favoring the abortion rights position.
If it is difficult to see how a government policy that provides no funds for abortion services, leaving abortion entirely a private matter to be paid for out of personal funds, could be called “neutral,” it is nearly impossible to use the term “neutrality” when tax revenues would be used for abortion services. Any proposal that tax money be used to support services or programs of any kind is, in effect, a proposal that the government adopt a particular, not a neutral, policy. It does not matter whether the proposal is to support abortion service programs, rural development programs, highway construction programs or medical care programs. One of the most crucial decisions any government can make is how it should spend its tax revenues. One way of determining the actual policy of a government—as distinguished from its stated policy—is to examine how it spends its money. Although no poor person is forced to accept Medicaid assistance, the fact that he or she may so is an indication that our government does have a public policy which favors medical care for the indigent. No one could really claim, in the case of Medicaid, that our government has a neutral policy toward the sick poor; quite the contrary, it has a positive policy of helping them (just how well is another matter). That no one need take advantage of such assistance is beside the point; what matters, for policy purposes, is that they may accept it if they need and want it. For all these reasons, any proposal that public money be used for abortion services should be seen for what it is—a proposal that the government establish a program designed to benefit those who need or want abortion services. Once the government provides funds for anything, it has passed beyond neutrality.
I make this point strongly for a particular purpose. I believe the government should, out of public funds, make available a wide range of abortion information and services, particularly to the poor. But it would take an exceedingly naive legislator to believe that a vote in favor of the use of Medicaid funds for abortion services would be interpreted by his constituents as an act of neutrality. It is a vote in favor of a particular government expenditure of funds in behalf of a particular class or group of beneficiaries, based on a particular view of how public funds may legitimately be spent. There is nothing neutral about such a vote.
If neutrality is not possible, then, what kind of a case can be made for a government policy that would provide abortion services? The first point to be made is that, whatever else it may have decided, Roe v. Wade did not establish the right of a woman to obtain an abortion at public expense—the right of an entitlement to an abortion. It established the right of a woman to decide for herself whether she would have an abortion and to seek out a physician willing to perform it. To argue for support of abortion services from public funds requires, therefore, that a general public purpose and the general public welfare would be served by government provision of such services—and that is not a position that can be deduced, logically or legally, from Roe v. Wade. But it is, I would contend, a position that can be defended as a corollary of other already accepted, relatively noncontroversial premises about American pluralism and government policy toward the poor.
Let us note, first, the dilemma government faces in the case of abortion services. On the one hand, if the government excludes abortion services from the array of health services it provides, it of necessity excludes the health needs of one class of potential patients; it also embraces the political and moral views of those who would exclude such services. On the other hand, if it provides such services, it clearly favors one side over another. Whatever the choice of government, one side or the other will be displeased. The problem of government, then, must be dealt with at a different level: The government must show that the solution it does choose works the least harm, promotes the most justice and is compatible with the broad and generally accepted principles of pluralism.
To make the necessary argument in favor of services, four premises are necessary:
- It is the law of the land that a woman has the right to make an abortion decision on the basis of her personal moral convictions; that is the one simple outcome of Roe v. Wade.
- Where the law provides for a free choice, government should do nothing that would hinder such a choice.
- Some people are unable to pay for medical services that the more affluent can afford. Since Medicaid was enacted to correct the inequity this situation created for the poor, a special reason would be needed to exempt abortion services from the otherwise (reasonably) full range of services that the program was designed to provide.
- Finally, if a special reason cannot be found to exempt abortion services, it would be unjust and discriminatory to exempt them.
The first two premises seem self-evidently true. It is the third and fourth premises that are critical. What would count as a special reason to exclude abortion services from a wide range of other health services? One reason might be that the inclusion of such services is morally offensive to a number of citizens, and that they object to having their tax money spent for purposes they consider immoral. However, there is no principle in our polity which allows individual taxpayers to pick and choose those things they would like to see their tax money spent for. The courts have consistently held against such a right of selection, and for good reason: It would simply be impossible for government to function if each taxpayer could decide how his or her individual tax money could be spent. What is open to citizens is to work politically to change those policies to which they object. But once a policy has been put in place by the normal democratic political process, then individual taxpayers cannot be allowed to ac t in disregard of that policy.
Much more important, those who seek abortions must be assumed to be acting according to their moral beliefs. Even if one believes that those moral beliefs are false or wrong, for the purposes of government and in a pluralistic society, they have full standing as legally acceptable moral beliefs. To exclude those with such beliefs from receiving funds that would allow them to exercise their beliefs would be patently discriminatory. This does not mean that the right to free choice concerning abortion automatically entails the right to obtain an abortion at government expense (any more than the right to free speech entitles one to money to start a newspaper). It means that it would be arbitrary discrimination to exclude specific medical services (such as abortion) from general medical and welfare programs designed to reduce financial and health inequities, and thereby to withhold such services from poor people to whom they are morally acceptable and which, in their judgment and a physician’s, would be conducive to their physical or psychological health.
The point may be put another way: To grant to those who believe abortion to be morally wrong the right to deny funds to those with different moral convictions would clearly represent an interference with the free choice of the latter. If millions of Americans are so poor that they cannot get adequate health care without public assistance, then it would be unfair to deny them some forms of what they (and others) consider morally acceptable medical assistance (abortion services) simply because some people hold contrary moral views. If the poor had money, they could, of course, afford to exercise their right of choice of an abortion. But it is precisely because they are in poverty and thus dependent upon public assistance that they are denied abortion services. Abortion opponents, unable effectively to deny the rights of financially secure women to obtain and pay for the abortions they want, direct their attention toward those over whom they have leverage—the poor. They try, that is, to deny funds to the poor for abortions because, since the poor are dependent upon the tax monies of the well-to-do for the money they need to obtain abortions, their behavior can be controlled in a way that the behavior of the well-to-do cannot. Thus, Rep. Henry J. Hyde (R-Ill.), in defending the amendment to the DHEW-Labor appropriations bill which has effectively cut off Medicaid-funded abortions to poor women, declared, “I would certainly like to prevent, if I could legally, anybody having an abortion, a rich woman, a middleclass woman or a poor woman. Unfortunately, the only vehicle available is the HEW Medicaid bill. A life is a life.” This does not mean that abortion opponents are less sensitive to the general needs of the poor than are abortion rights groups (there is no evidence to suggest any particular distinction in that respect). But I do claim that because of the zeal of abortion opponents to deny public funds for abortion, one group and one group only—the poor—now bears the burden of any success they may achieve.
Quite apart from the patently discriminatory consequences of denying abortion services to the poor, can it be said that a public purpose and the public welfare would be served by public support of abortion services? I am not much attracted by occasional efforts to show that the burden of public welfare costs would be reduced by more effective abortion services since the cost of bearing and rearing children is greater than the cost of abortion. Perhaps that is true, but the roots of our welfare problem cannot be traced to the absence of abortion services—the true roots are poverty, injustice, racism and a host of more fundamental ills in our society. A woman who, out of the desperation of poverty, is offered only a free abortion is not being given the means to escape poverty. Full freedom of choice would include funds and services to enable her to support a child. To offer only the option of abortion is to offer a half-freedom only. There is, in the end, something unsavory and morally evasive in arguing for abortion services as a means of coping with spiraling welfare costs.
A far stronger case would be based on the welfare of the individual poor woman and of her family. An unwanted pregnancy in the midst of poverty will most likely only add to what is already a destructive way of life, one imposed by necessity and not by choice. The consequences of an unwanted pregnancy can (not necessarily must) intensify and magnify an already severely distressed situation. I readily concede that an unwanted pregnancy and an unwanted child will not necessarily worsen the condition of every poor woman; some can surmount that situation. But because we do not know who can or cannot weather that circumstance, it will have to be left to the woman to make such a determination. If she thinks it will be destructive, the rest of us are in no position to prove otherwise. It is a valid public purpose and a genuine contribution to the public welfare to provide poor women with abortion services that might at least allow them to avoid worsening what is already a bad situation. It is rarely likely to be all that they need, but if we care about the state of those caught in poverty, it is the least we can offer.
In light of the foregoing arguments, what would be a coherent, consistent and acceptable public policy on abortion services? It would be a policy in which the government neither encourages nor discourages abortion. It would support those who are morally opposed to abortion, fully protecting their right not to be coerced (e.g., by withholding funds for childbirth or child welfare). It would protect the right of health service providers not to perform abortions. It would no less assiduously protect the rights of those who choose abortions for themselves, as well as the rights of health care providers to perform abortions. The active role of government would be limited to the provision of information, to the development of equitable regulations to control the safety and availability of abortion (in exactly the same way it regulates the safety and availability of other medical services), to the support of research and training and to payment for abortions for those for whom it subsidizes other medical care. Such a policy would build on the legality of abortion, but would also recognize that the right to an abortion would be de facto discriminatory if government policy precluded those unable to pay because of poverty from exercising their right.
If there is to be any chance whatever of public acceptance of such a coherent and consistent policy, the advocates of free abortion choice will have to display a number of conciliatory traits that have not heretofore always been evident in public debate on the issues. The major task will be to demonstrate successfully that the policy they support, while not necessarily perfect and certainly not acceptable to all, represents a more tolerable middle ground than any proposed alternative. A “perfect” policy might be understood as one that satisfied all parties; but that is patently unlikely in the case of a policy that protected freedom of choice. What could be shown is that those supporting such a policy are sensitive to the positions of their opponents, are willing to concede their own excesses and are prepared, when necessary, to settle for something less than total victory.
The most important point to be understood about serious abortion opponents is that the logic of their morality on abortion does not readily admit of compromise or acceptance of the ordinary rules of pluralistic permissiveness. For those who strongly believe that abortion is the wrongful taking of human life, it is their moral duty to oppose it. To assume that abortion opponents are necessarily less sensitive to the rights of women, or to the poor, or to the general moral convictions of others because of their stance on abortion is to miss the point. They are simply saying that, as important as other values maybe, they must give way to an even more important moral good, that of the obligation to protect human life from its inception. It is obvious why an essentially individualistic and subjectivist ethic on abortion is unacceptable to people who hold such a belief. They cannot, on the one hand, entertain the belief that abortion is a very grievous wrong, and, on the other hand, accept the belief that each individual should have the right to decide for herself whether to have an abortion.
I stress here the logic of the position, which should be separated from the often nasty, judgmental and vindictive rhetoric which some abortion opponents use—the language of “murder,” “baby-killers,” “Nazism,” and the like. While it is hard to ignore that kind of invective, reasonable public debate requires that opponents attend to the best arguments offered by those on the other side, and particularly to their way of reasoning. Those who wish to prohibit abortions are, at their best, saying one thing of great importance to them: They must oppose a position that permits freedom of choice. Of course it is an absolutistic position. But given the logic of their beliefs, it could hardly be otherwise. Moreover, it should be noted that, in any debate, what to one side is oppressive absolutism is to another side the courage of their convictions. Those opposed to rape, genocide, racial discrimination and sexism, and unwilling to allow others to act in support of those practices, are rarely called absolutists.
Given the logic of their position, one cannot expect abortion opponents to do anything other than oppose most abortion rights positions. Nor should they be asked to give up their convictions in the name of a more tolerant pluralism. What can be asked is that they be prepared to act within the law, that they be willing to grant the serious moral convictions of those who believe in free choice, that they eschew invective and that they be prepared (at least temporarily) to accept the possibility that they may lose in the struggle over abortion policy. Naturally, one would ask no less, analogously, of those who favor freedom of choice.
In raising the issue of religion, abortion rights proponents are on very dangerous ground. It is at just this point that, if care is not taken, those I defined earlier as ambivalent are most likely to be alienated. I would class as ambivalent those who, though personally opposed to abortion on moral grounds in all or some circumstances, nonetheless recognize that others have different beliefs, and are willing for the sake of public policy to allow those beliefs to be exercised. It is this group that is likely to be decisive in determining the future direction of policy on abortion services. It is with this group that an excessive emphasis on the religious nature of the abortion issue, and on the religious character of abortion opponents, is most likely to backfire.
There are at least two hazards: The first is trying to define the abortion issue as essentially religious. Although many if not most people have attitudes toward abortion that stem from their religious backgrounds (Unitarians as well as Roman Catholics), practically all important values in American culture stem in part from religious traditions, including the values of liberty and justice invoked by abortion rights groups. However, it is perfectly possible to argue for or against the morality of abortion in purely philosophical, secular terms. I have seen nothing to convince me that abortion is inherently a more religious issue than justice, peace or the general social welfare. A strong case can be made that the idea of pluralism itself has deeply religous roots; and some would claim that it is essentially a religious concept based on theological notions of individual rights and dignity. If that is true, then any attempt to define religious convictions as outside the legitimate domain of public policy runs the risk of equally undermining the principle of pluralism meant to take their place.
The second hazard is confusing lay opposition to the positions taken by church authorities with opposition to the principle that those authorities have the right to take the positions they do. It is well known, for instance, that large numbers of Catholic women obtain abortions, and that large numbers of Catholics, when surveyed, express positions at variance with those of their bishops. But it would be a serious mistake to conclude that those dissenters will thus gladly accept public abuse heaped upon their bishops. A remarkable change has taken place in American Catholicism in recent decades-Roman Catholics now feel quite free to dissent from what their bishops say and to behave openly in ways their bishops do not approve. But this shift should not be seen as a wholesale repudiation of the very idea of episcopal authority, or a willingness to take pleasure in seeing the bishops lambasted by non-Catholics.
To put the matter as strongly as possible: Widespread attacks upon Roman Catholic bishops by non-Catholics who oppose their position on abortion will almost invariably be seen—even by those who totally disagree with the bishops on abortion—as evidence of anti-Catholicism. This is because an attack upon the bishops is an attack upon a major symbol of Catholic belief. Right or wrong, they are still bishops, and are granted respect even when they are believed to be totally wrong and are flagrantly disobeyed. An analogy may underscore the point. Foreign nations hostile to the United States try to make a rhetorical distinction between the nice, decent American people (with whom they have no grudge), and the terrible, vicious, imperialistic American political leaders. Americans rarely accept that distinction. We look at virulent attacks upon our political leaders as evidence of a more pervasive anti-Americanism. A constant emphasis on Catholic opposition to abortion rights-when some other less well-organized groups are no less opposed-can only serve to invoke a sense that anti-Catholicism is still rampant. The most obvious test of bigotry is not that of outright persecution; it is whether representatives of one’s group are always singled out for a religious identification. Roman Catholic legislators opposed to abortion are usually labeled as “Roman Catholic legislators”-others are simply “legislators.” The distinction in prefix religious labels is sure to be noted.
The final point I would make concerns the willingness of abortion rights advocates to support the views of those morally opposed to abortion with which they can readily agree. Hardly any abortion rights proponent is prepared to argue that abortion represents an ideal solution to the problem of unwanted pregnancy. It is, at best, a last resort, when no other course seems possible; it almost always represents a difficult and anguished choice. I take it to be the essence of the freedom-of-choice position that this last choice should remain available to women, to be paid for themselves if they can afford it, or to be paid for out of public funds if they cannot. But it will be very hard to persuade the ambivalent about the credibility of such convictions unless those favoring free choice show themselves as dedicated to expanding the non-abortion choices of women as to expanding the ready availability of abortion services. The real need is to reduce the need for abortion in the first place: through better welfare programs for mothers in general, better sex education and contraceptive services, better across-the-board programs for teenagers at risk of pregnancy. In short, abortion rights proponents need to do two things simultaneously: They must do all in their power to reduce the need for abortion, and thus, eventually, the number of abortions, while at the same time working hard to see that those who continue to need abortions can get them. It is a difficult line to walk, particularly when the immediate political fight seems to demand an emphasis on the latter goal. But in the long run, I believe, the abortion rights movement will be judged by the extent to which it recognizes the moral ambiguity of abortion, and makes this sense of ambiguity clear by working as hard to reduce abortions as to increase their availability.