Mary B Mahowald. The Hastings Center Report. Volume 19, Issue 4. July-August 1989.
It has been sixteen years since the landmark case Roe v. Wade was decided by a majority vote of the United States Supreme Court. Sixteen years is enough time for humans and their laws to be conceived, embodied, and grow to maturity, but Roe still threatens to abort. In fact, by the time this article appears, it may have been overturned by a new decision that vitiates its main provisions. Is there any way of saving its life? Is its life worth saving?
“Pro-life” activists would probably answer both questions negatively, and “pro-choice” activists would probably answer them affirmatively. For each side the answer to the second question is likely to be more definitive. Those whose views on the legality or morality of abortion are somewhere between absolute permissiveness and absolute condemnation, a position held by the majority of the American people, may look for ways of saving what seems worth saving of Roe.
Why has the debate raged on without abatement for so long? Is it possible to find some areas of agreement that dissidents on the issue might acknowledge? While addressing these questions, I will also briefly sketch my own views on possible changes in Roe and the morality of abortion.
The Long Debate
Laws often have a settling as well as regulative influence on individuals. For example, legal enactments such as the Emancipation Proclamation and the Nineteenth Amendment granting women the vote eventually became settled opinion in American consciousness despite initial controversies. One might have thought, therefore, that by now the cool rationale of the Roe decision in 1973 would have quelled the heat of public debate about abortion. Instead, the heat has escalated from fiery words to clinic bombings.
Intransigence on opposite sides of the issue, coupled with misleading and emotionally charged rhetoric, are partly to blame for prolongation of the controversy. Kristin Luker’s account of the differences between “pro-life” and “pro-choice” activists suggests that both groups are basically closed to reconsideration of their positions. For the most part, the rhetoric of abortion aims at different targets: “pro-lifers” focus on abortions for trivial reasons, performed even when the fetus is well-developed; “pro-choice” proponents tend to discuss abortions undertaken early for compelling reasons such as rape, or threat to a woman’s health or life. One side refers to embryos as babies, and abortions as (therefore?) murder; the other describes a second trimester fetus as a blob of cells, and compares abortion to removal of a wart or tumor. The phrase “abortion on demand” is used prevalently to describe the current legal status of abortion; yet the text of the Roe ruling fails to support that interpretation.
Beyond simplistic rhetoric and intransigence, thoughtful, well-developed arguments and openness to further consideration have helped to keep the debate constructively alive. Increased knowledge of fetal development and advances in neonatology, along with the incidence of infertility and shortage of adoptable babies, have caused some to wane in their initial enthusiasm for Roe. Those whose main concern in legalizing safe abortions was to promote the health of poor women may be comforted by the reduction in morbidity and mortality related to abortions, but disturbed by the overall increase-in the number of abortions performed.
Complexities of the Issue
Fortunately or unfortunately, I cannot honestly align myself with either “pro-choice” or “pro-life” activists. Either side betrays, to me, the enormous complexity of the issue. This complexity is in part a function of the following features associated with abortion decisions: duration of gestation, circumstances of conception, age and competence of the pregnant woman health status of the fetus, and health status of the pregnant woman. Regardless of the outcome of Webster, recognition of this complexity could be a beginning point for discussion between dissidents.
Duration of gestation. For most people, abortion decisions become more difficult to justify as gestation progresses. For example, an intrauterine device, usually viewed as a contraceptive despite its abortifacient effect, is hardly controversial. RU 486, a drug that induces abortion very early in pregnancy, has evoked controversy because it allows a woman to abort herself; if the drug could be used effectively late in pregnancy its availability would surely be more disturbing to some individuals. Physicians who have no moral qualms about early abortions tend to avoid performing them during the second trimester. Legal and emotional factors may trigger such avoidance more than moral concerns. In general, however, the more advanced the gestation, the more likely it is that significant moral factors are introduced, such as the onset of fetal brain activity (at about 8 weeks), and of fetal sentiency (probably during the second trimester).
Roe maintains that fetal viability, “the ability (of the fetus) to survive ex utero, albeit with artificial aid,” occurs during the third trimester, at which point the states may thereafter promote their interest in the “potentiality of human life” by proscribing abortion unless it is necessary for maternal health. Because of advances in perinatal and neonatal medicine, and greater availability of technology, the duration of gestation required for viability has been reduced since 1973. Accordingly, the trimester breakdown by which abortion is permissible until the third trimester no longer provides an adequate guide to decisions based on fetal viability. Moreover, in a forty-week (full-term) gestation, just when second trimester ends and third trimester begins is unclear even to practicing physicians.
Technically, abortion is no longer possible after viability, because termination of pregnancy, whether spontaneous or induced, is then clinically defined as premature birth. However, Roe uses the term abortion to refer to termination of pregnancy both before and after viability, and many people, including practitioners, construe abortion as the termination of the fetus prior to birth, whether the fetus is viable or not. On that interpretation, if the fetus is considered viable or possibly viable, a method may be chosen to insure fetal demise in utero. If abortion is defined as termination of pregnancy rather than termination of the fetus, the method selected may be one that maximizes the chance of fetal survival.
From a medical standpoint the choice of method is partly determined by the duration of gestation: vacuum aspiration or suction curettage are appropriate during the first trimester, while induction methods (using saline, urea, or prostaglandin) or dilatation and evacuation (D&E) are appropriate during the second trimester. Roe says nothing about methods of abortion and their different effects on the fetus as well as the pregnant woman. Yet surely the possibility of fetal survival, of pain, and of risk to the pregnant woman’s health are morally relevant factors influenced by the method selected.
Circumstances of conception. Many opposed to legal abortion generally make exceptions for cases of rape or incest. Requiring a woman to maintain a pregnancy caused by rape imposes on her a constant reminder of the violence committed against her. Pregnancy due to incest may also have its origins in violence, and ordinarily entails social stigma and risk of birth defect. Abortion in such circumstances is more likely to be morally justified than when intercourse occurs voluntarily in a non-incestuous relationship.
Voluntariness, as a crucial component of moral behavior, applies not only to intercourse but also to conception. Accordingly, we may wonder about responsibility for pregnancies that occur in spite of careful contraceptive practice, when intercourse is clearly voluntary but conception is not. The voluntariness of intercourse may imply responsibility for conception, at least on the part of those aware that contraception sometimes fails. If contraception were faithfully practiced and fully reliable, neither pregnancy nor abortion could occur. When appropriate contraception fails, however, those who practice it are less responsible for the resultant pregnancy than those who don’t.
Additional circumstances associated with abortion decisions include the marital and economic status of the pregnant woman, and responsibilities to others, such as a spouse, parents, or children already born. In most cases, however, the moral relevance of these circumstances rests on an assumption that commitment to parenthood is essentially linked with carrying a pregnancy to term. (I will return to this point later.) Moreover, different circumstances may influence the morality of the agent without altering the morality of the act. Abortion construed as the killing of an innocent person would thus be a morally wrong act, but mitigating circumstances would reduce the culpability of the agent committing the act.
Age and competence of the pregnant woman. The age at which pregnancy occurs is relevant for medical as well as psychosocial reasons. Pregnancy and childbirth are not only particularly hazardous as discrete events for those who are not yet fully mature, but they also tend to impede such persons from reaching their full measure of development. Moreover, the younger the individual, the less likely it is that she has fully and freely consented to the pregnancy or to abortion.
Maternal age is also a risk factor for the fetus. The incidence of prematurity is greatest for the oldest and youngest age groups. Women over thirty-five are often aware of their increased risk of conceiving a child with Down syndrome, and the incidence of medical complications for pregnant women as well as fetuses escalates as the age of the pregnant woman advances beyond the mid-thirties. A forty-five year-old woman whose children are already raised, may become pregnant when she fails to practice birth control because she mistakenly believes herself menopausal. Because of the risk factor, this suggests a morally different picture than the unplanned pregnancy of a twenty-five year-old.
Competence, often related to age, is another morally relevant factor in abortion decisions. Partly because of laws against involuntary sterilization, incompetent and questionably competent adults sometimes become pregnant. Here a pro-choice argument for abortion is hardly adequate. Here too, the possibility that the pregnant woman can or will be permitted to raise her offspring is remote. Competence thus applies not only to the capability for moral decisionmaking, but also to capability for parenthood. So long as a child can be raised by others who are competent, the absence of competence for parenthood is not an adequate reason for abortion.
Health status of the fetus. In normal pregnancy, the health of the pregnant woman and of the fetus are interdependent. Nonetheless, early spontaneous abortions occur, sometimes before women realize they are pregnant, often because embryos or fetuses are abnormal. Spontaneous abortions are thus a kind of natural eugenic event. Because of improvements in high-risk obstetrics, infertility treatment, and perinatology, some fetuses that previously would have succumbed in utero now survive. By means of prenatal diagnostic techniques we can detect fetal anomalies, some of which are treatable in utero and some ex utero. Through legal access to safe abortions, an elective eugenic procedure is thus available.
Although clinicians may refer to elective abortion for fetal anomaly as “therapeutic,” the procedure is not usually medically therapeutic for the pregnant woman. A rationale of fetal euthanasia may be applied to cases where the abnormality is so severe that survival seems worse than death (for example, Tay-Sachs disease or Lesch Nyhan syndrome). In most cases of abnormality, however, survival presents a greater burden to the family than to the child. It also entails a burden to society, which ordinarily subsidizes the treatment, education, and social supports necessary for disabled persons throughout their lifetimes. Down syndrome, a condition that is mentally debilitating but not generally emotionally or physically debilitating, is a clear example of a prenatally detectable anomaly that usually prompts abortion. The procedure may be defended as a means by which to avoid the psychosocial burdens that care for a person with Down syndrome entails; it can hardly be justified on the basis of the interests of the fetus.
Health status of the pregnant woman. Some pregnancies are life-threatening to some women. Since self-defense seems so basic a human right, few would argue that a woman is morally obliged to sacrifice her life for the sake of a fetus. However, some women in fact choose to risk their health for the sake of their fetuses, while others may decline to do so for unselfish reasons. Consider, for example, the following cases: Case A: A twenty-six year-old married woman had Eisenmenger’s syndrome, a condition that is life-threatening in association with late pregnancy and childbirth. The cardiologist who had warned her against childbearing advised her to have an abortion when she became pregnant. The woman was aware that her chance of survival was about 50 percent, but insisted that she wanted to have the baby. Although her husband and parents preferred that she abort the fetus in order to maximize her own prospect of survival, she chose to continue the pregnancy. In conformity with the woman’s wishes the infant was delivered by cesarean section. Despite aggressive efforts to support her throughout the medical crisis, she died four days later. Case B: A thirty-two year-old woman with multiple sclerosis became pregnant despite use of a diaphragm. She and her husband had two children, four and six years old, for whom she was the principal caregiver. Although the couple were generally opposed to abortion, both were extremely concerned that continuation of the pregnancy would further compromise the woman’s health. Previous pregnancies had resulted in permanent aggravation of her condition, to a point where she required a wheelchair. One week after learning she was pregnant the woman requested an abortion. She hoped, she said, to preserve her ability to care for the children she already had.
The woman described in Case A showed a heroic degree of self-sacrifice in behalf of the fetus. Poignant and appealing as it is, however, such self-sacrifice or virtue lies beyond the moral requirements of the law. Until and unless our society is willing to coerce some persons to risk their health for the sake of others—to donate bone marrow, blood, or a kidney, for example—we surely should not force pregnant women to do this for their fetuses. Even then, the argument in behalf of those who are uncontroversially persons is more compelling than the argument made for fetuses. Accordingly, the woman who chose abortion in Case B may also be acting virtuously, pursuing an alternative that may in fact be the most loving and responsible course to follow.
Generally, the lesser the threat, the less convincing the self-defense rationale. At a certain point in the development process, the medical risk of elective abortion is equal to the risk of continuing the pregnancy to term and birth. Psychological, social, and economic risks are also prevalently associated with pregnancy. Although these may influence the condition of the fetus, they directly affect the life of the pregnant woman. Unlike the fetus, however, she is able to communicate her priorities regarding her own interests or those of the fetus. In situations of conflict, whether or not her autonomy is socially supported depends on whether pro-choice or prolife values prevail.
Possible Areas of Agreement
Should the values of one perspective prevail, or are there points of convergence that both sides might acknowledge? In addition to recognizing that abortion is a complex issue, I believe dissidents might agree on the following points.
Abortion is a bad thing. Ordinarily, pregnancy represents a natural, healthy process that abortion interrupts. Elective abortion entails an actively invasive procedure for the woman undergoing the termination of her pregnancy. But whether the abortion is spontaneous or deliberate, the interruption signifies termination of a physiological relationship that has supported a developing human life, which is a positive human value. Unfortunately, Roe fails to acknowledge this “fact of life,” confusing the philosophically controversial concept of person with the relatively simple biological concept of human life.
Often the circumstances that trigger abortion are themselves tragic, and the decision is an effort to minimize the harm done to those affected, including others besides the pregnant woman. It may of course be argued that the harm done to a fetus through abortion is always greater than that done to others by continuing an unwanted but healthy pregnancy. Nonetheless, one can acknowledge the harm of abortion while holding that in some circumstances it entails less harm than alternatives.
The term “pro-abortion” is a misleading label for those who argue for its permissibility only in certain circumstances. To limit those circumstances by providing alternatives to women is an appropriate objective of “pro-choice” as well as “pro-life” supporters. The Bush administration’s proposal that adoption be more widely encouraged is an obvious possibility in this regard. Some argue, however, that adoption is more psychologically costly for pregnant women than abortion. More social supports for childrearing, especially when children are disabled, is another practical means of expanding the alternatives of pregnant women. Probably the most effective way to avoid abortions, however, is to improve the practice of contraception. If pregnancy were prevalently voluntary, the incidence of abortion would surely be reduced.
There are differences between the right to terminate a pregnancy, the right to terminate a fetus, and parental responsibility. Neither morally nor practically is termination of pregnancy equivalent to termination of a fetus. This is obviously true when the termination of pregnancy occurs through the birth of a live infant. It may also be true of procedures in which a nonviable fetus is removed for treatment of a condition that gravely threatens the life or health of a pregnant woman, such as ectopic pregnancy or cancer of the uterus. It is clearly not true when termination occurs because of fetal anomaly. In normal pregnancies, abortions may be elected with the intention of ending the pregnancy, terminating the fetus, and/or avoiding the responsibilities of motherhood. The last intention is also achievable by continuing the pregnancy, giving birth, and then surrendering the newborn into the care of others. Roe seems to ignore the latter possibility in arguing that “the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it” provides grounds for abortion.
Several supporters of a woman’s right to abortion explicitly limit their support to an understanding of abortion as termination of pregnancy rather than termination of a fetus. In interpreting Roe with regard to survivors of legal “abortions,” the states have assumed the same distinction. If termination of pregnancy occurs either spontaneously or electively after viability, a living survivor must be provided with the same medical care as is appropriate for any premature newborn. Even if the infant is nonviable, such terminations of pregnancy are technically considered live births rather than abortions. As already mentioned, if the fetus in utero is considered viable or possibly viable, the practitioner may choose a procedure that will insure fetal or newborn demise, or a procedure that is most conducive to survival. At that point, the moral and practical difference between termination of pregnancy and termination of a fetus is inescapable.
Disclosure of accurate information is as morally requisite here as in other treatment situations. Ordinarily, few people question the moral significance of full and accurate disclosure by caregivers presenting treatment options to competent, conscious patients. Free and informed consent is not possible without such disclosure. Nonetheless, communication is often influenced by the subjective biases of the communicator, and this is especially so in discussions of abortion. An important and obvious way of reducing bias is to use technically correct language rather than controversial terminology. For example, to refer to a pregnant woman as a mother is not technically correct unless she has already given birth; nor is the male whose sperm has fertilized a woman’s ovum a father until the fertilized ovum produces a neonate. Neither embryos nor fetuses are yet babies, and should not therefore be characterized as such. Nor should fetuses be referred to as embryos, as in Luker’s account, because the term “embryo” understates the reality of fetal development, providing valid grounds for criticism by “pro-life” advocates.
But disclosure is not simply a matter of using correct terminology; it also involves selection of the content to be disclosed. Efforts to require disclosure of the developmental status of the fetus and alternatives to abortion (adoption, for example) have been rebuffed by Supreme Court decisions following Roe. In June 1986, the majority opinion in Thornburgh upheld a ruling of the Pennsylvania Court of Appeals on the unconstitutionality of requiring that certain information be provided to women seeking abortion. The information included the name of the physician who would perform the abortion, the probable gestational age of the fetus, a description of the medical risks associated with the procedure and with carrying the fetus to term, and an offer of materials to review regarding “the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including any relevant information on the possibility of the unborn child’s survival.”
In writing for the majority, Justice Blackmun argued that the above description of fetal characteristics was “overinclusive,” that it is “not medical information that is always relevant to the woman’s decision, and it may serve only to confuse and punish her anxiety, contrary to accepted medical practice.” It is also possible that such information could lead to some women changing their mind about abortion. Selig Neubardt and Harold Schulman observed that when second trimester abortion patients were informed that the procedure (saline or prostaglandin infusion) would induce labor and delivery of a formed fetus, one fourth declined the procedure.
In a dissenting opinion, Chief Justice Burger who voted with the majority in Roe, expressed concerns about “abortion on demand” as a practice he believes the Court never supported. Roe, he claimed, was based on the State’s interest in preserving and protecting the health of the pregnant woman. Burger found it astonishing that the Court would deny that the state could “require that a woman contemplating an abortion be provided with accurate medical information concerning the risks inherent in the medical procedure which she is about to undergo and the availability of alternatives if she elects not to run those risks.” Ironically, his critique of the majority opinion is based on its failure to be sufficiently “pro-choice”: denial of information pertinent to abortion decisions reduces the autonomy of pregnant women.
Pregnant women have rights at least equivalent to those of non-pregnant people. Presumably, this claim is uncontroversial because the personhood of pregnant women is generally accepted. The fact of their pregnancy, whether deliberately undertaken or not, does not diminish their personhood. Accordingly, pregnant women ought not to be subjected to coercive treatment that others might effectively refuse, such as blood transfusion, surgery, or even hospitalization. Even if treatment were imposed on an adult for the sake of minor children, further argument is needed to justify its imposition for the sake of fetuses. Minor children are uncontroversially persons, and fetuses are not.
With regard to induced abortion, a request for the procedure is not equivalent to refusal of treatment. Hence the request, while legally or morally legitimate, does not morally oblige a practitioner to perform the abortion. The pregnant woman’s right to treatment, like the comparable right of nonpregnant persons, is contingent on the right of others to refuse to provide the treatment. To the extent that the pregnant woman’s health or welfare is threatened by continuation of the pregnancy, her right to (the treatment of) abortion becomes stronger, and the right of others to refuse assistance becomes weaker.
Viability and sentience of fetuses are morally relevant to abortion decisions. Viability allows others to care for the fetus after an abortion has been performed. The situation seems comparable to the obligation of someone who finds an abandoned newborn. When others can and are willing to care for the fetus-that-may-be-aborted the distinction between the right to terminate a pregnancy and the right to terminate a fetus is reintroduced. Even in cases of serious genetic defect, viable fetuses may be adopted after abortion. This provides prima facie grounds for requiring a method of terminating pregnancy that maximizes the chance of fetal survival.
Regarding sentience, the obligation to avoid inflicting pain on others, even animals or criminals who may legally be killed, is surely applicable to fetuses also. While little data are available concerning the capacity of the fetus to experience pain, it seems clear that the sentient capacity of a late gestation fetus resembles that of a neonate, and that the earlier the point of development, the more diminished that capacity. Even the possibility of sentient capacity is morally relevant, and thus clearly has implications for decisions about techniques of abortion.
Legality and morality are related but not equivalent. This may be the most telling point of all regarding the continuation of the abortion controversy. Although many of those who oppose abortion recognize that Roe takes no stand on the morality of abortion, their efforts have apparently concentrated on overturning the law rather than emphasizing their moral position. Yet their advocacy of moral decisionmaking about abortion entails the possibility that their position can and should be implemented regardless of whether the law is changed. A golden opportunity wrought by Roe has thus been missed, that of educating people more broadly about the fact that legality is not equivalent to morality, and about the morality of affirming life in all its forms and stages. Clearly, the moral force of a “pro-life” movement is weakened by failure to support other life-affirming efforts, such as opposition to a nuclear arms race or capital punishment.
The moral force of either “pro-life” or “pro-choice” arguments is weakened by failure on either side to expand the moral options of women who are or may be pregnant. Preoccupation with the legal status of abortion seems to have compromised efforts in this regard, strengthening the erroneous tendency to define morality in terms of legality. Admittedly, if women are legally coerced to continue pregnancies, the autonomy necessary for moral decisionmaking is thus reduced. But if Roe is substantially reaffirmed in Webster, the challenge to pro-choice advocates will remain what it has been all along: to insure that women’s choices are not simply legal but morally informed and socially supported.
Possible Changes in Roe v. Wade
As the preceding account suggests, I don’t consider Roe a model ruling. I believe the Court should retain certain features, such as its emphasis on viability of the fetus, implying certain obligations on the part of others, as well as its affirmation that women’s health or life provides adequate reason for terminating pregnancy even in its later stages. But specification of trimesters, and of twenty-four weeks’ gestation, as points for determining whether to honor women’s requests for abortion, should be abandoned because of their ambiguity and inadequacy in establishing viability.
Although the majority opinion in Roe was based primarily on the pregnant woman’s right to privacy, Justice Stewart argued in his concurring opinion that liberty rather than privacy should be emphasized. I agree with Stewart that personal liberty provides a clearer and more convincing rationale for women’s right to choose abortion. In keeping with that rationale, instead of stating that “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician,” the Court should affirm the pregnant woman as primary decisionmaker, limiting the physician’s role to medical aspects of the decision. If and when RU 486 is available, physicians will not be necessary for performance of safe early abortion. Support for state proscription of “any abortion by a person who is not a physician” therefore needs to be deleted from Roe.
Clarifications should be introduced regarding the distinction between controversial meanings of personhood and a living (human) embryo or fetus, as well as the difference (and relation) between a decision about pregnancy and a decision to raise a child. In addition, a number of points not addressed in Roe need to be articulated. These include acknowledgment that the right to terminate pregnancy is not necessarily equivalent to the right to terminate a fetus, and that a right to abortion applies to the former but not to the latter if the two are separable (as in cases of possible viability); recognition of obligations to a sentient fetus to reduce or eliminate pain unless the woman’s health is thereby compromised; and affirmation that informed consent requirements should be satisfied, including full and accurate disclosure of pertinent information concerning the procedure.
These recommendations reflect in part my own moral point of view, but they do not represent it in its entirety. Consideration of the complexity of abortion decisions, and possible areas of agreement between dissidents leads me to articulate the following as a summary of that position.
- Abortion is rarely if ever virtuous, sometimes morally justified, and sometimes immoral.
- Such claims are neither negated nor affirmed by Roev. Wade, that is, by the legality of abortion.
- Our society is one in which the circumstances that occasion abortion are often immoral, sometimes more immoral than abortion, and one in which people do not now agree about the morality of abortion, nor do they appear likely to agree in the future.
- The immoral conditions that sometimes occasion abortion include poverty, lack of social and medical supports for pregnancy and parenthood, stereotypic views of sex roles and biological parenthood, and a eugenic mentality that welcomes only “premium babies.” Clearly, greater societal effort is needed to rectify these conditions. In addition, the following practices would facilitate moral decisions about pregnancy: a) broader education regarding the distinction between legality and morality, using pregnancy decisions as an example of but one area where the distinction is important; b) broader education concerning responsibility for contraception, encouragement of positive social attitudes toward and expansion of practical possibilities for adoption, information regarding the developmental status of the human embryo/fetus, and the various methods of abortion and their effects on pregnant women and fetuses; insistence that a pregnant woman’s autonomy in decisions that affect her is as binding on others as is the autonomy of nonpregnant persons in decisions affecting them; c) broader regard for human life throughout the spectrum of development.
So long as societal disagreement about the morality of abortion remains, the law should not preempt the right and responsibility of individuals to make their own moral decisions. However, if the law were to become more restrictive (for example, by excluding late or second trimester abortions for nonmedical reasons), it might still reflect the moral sentiment of most people. If overturning Roe led to illegalization of abortions in extreme circumstances such as pregnancy due to rape and incest, or pregnancies that are life-threatening for women or fetuses, it would clearly betray the moral sentiment of most people.
I don’t pretend to have developed all of the above points adequately, but most if not all have been well-developed elsewhere. This account might serve as a springboard for further discussion among those who recognize not only that contradictory positions cannot both be true, but also that truth doesn’t necessarily lie in the middle.