Abortion Law - Part 1
by Joan Kennedy Taylor

Throughout history, the social and economic realities with which we live have influenced our attitude toward having children. The issue is no less than individual, family, and community survival. This is the reality that underlies today's controversy about abortion.

Not surprisingly, modern countries have dealt with abortion as views of national interest have dictated — with responses varying from ignoring the issue to passing strict laws against it when periods of expansion seemed to demand population increase. Totalitarian countries tend to ban it; on the other hand, some, like China and former Soviet Republics, become concerned about overpopulation and provide it without charge. Contemporary democracies tend to tinker with abortion law in accordance with the strength of special interests, catering to doctors with one "reform," to women's rights advocates with another, and to religious groups with still another. Meanwhile, women continue to take charge of their bodies.

These women, of course, don't think of population concerns, they think of their own lives and families. In many countries, the choices available are either to jeopardize their economic survival by having a child or to jeopardize their life and health by having an unsafe abortion. Abortion is a fact of life in today's world; it is not a creation of feminism, nor is it usually entered into lightly. The World Health Organization (WHO) was quoted in a 1998 article in the New York Times as estimating that 20 million unsafe abortions take place annually around the world, 90 percent of which abortions take place in developing countries. WHO estimated that these unsafe abortions result in 80,000 annual deaths of women, and again, 95 percent of these deaths are in developing countries. Most of such countries have little or no contraceptive information available to women, so abortion, even unsafe abortion, may seem the only recourse for a woman who thinks her circumstances preclude having a child.[1]

Changing U.S. Policy — a Brief Summary

Contemporary political dialogue tends to imply that "abortion rights" are a new phenomenon. Actually, this phenomenon is older than the controversy about it. The United States began by recognizing a common-law ffreedom of women in this area, but policy changed over time.

In the late eighteenth and early nineteenth-century United States there were no laws about abortion at all, and folk medicines and patent nostrums for "regulating the menses" were widely available. Statutes regulating abortion and forbidding certain practices were passed by some states in the 1820s and 30s out of a concern for women's health, but abortion services were booming and even advertised in the popular press. It is certainly the case that early abortion was not generally prohibited by American legislation until after the Civil War, when a crusade by the American Medical Association and a new prudery about things to do with sex established laws against abortion before quickening in most states. Abortions were not ended by these laws, not even those provided by doctors. One recent book delving into the history of abortion during its period of illegality (1867-1973) even asserts that in the last third of the nineteenth century an estimated two million abortions were performed annually, which, comments Katha Pollitt, "would mean that in Victorian America the number of abortions per capita was seven or eight times as high as it is today."[2] According to this source, although deaths occurred (15,000 women a year died from abortions in the twenties), it was only in the nineteen-forties and fifties that longstanding clinics were forced out of business and the era of hard-to-find, dangerous, back-alley abortions began. Doctors in this country have mounted campaigns for and against abortion. Many of them began to agitate for reform of the laws in the late sixties and early seventies, when the old illegal networks of information had broken down and there was popular concern about abortion deaths.[3]

The Legal Picture

In this country, policy has to conform to the Constitution as it is interpreted by the Supreme Court. Our constitutional system is based on a concept of individual rights, but also on the separation of powers, which means that the legislation to do with abortion that we have been discussing was on a state, not a federal level. The states had seemingly unlimited "police power" over the subject — until, that is, the Supreme Court decided, in January 1973, that there was a constitutional right of privacy based on the Fourteenth Amendment that limited in this area the police power to make laws dealing with health, safety, and morals that states have. The Roe v. Wade decision was a compromise, saying that women had a constitutional right to privacy that included the right to have early abortions, but also reserving to the states an interest in protecting the woman's health and the "potential life" of the fetus. The compromise divided pregnancy into trimesters, with few restrictions required on abortions in the first, more in the second, and states allowed to ban most abortions in the third. Feminists pointed out at the time that allowing states to require doctors and hospitals for a simple medical procedure was putting a roadblock in the way of the development of new abortion technologies: at the time of the decision, according to one article, 31 states had no ban on paramedics performing permitted abortions and in many states self-abortion was "legal under certain conditions."[4]

The Court's interpretation of the Constitution may only be changed through the overturning of the Roe v. Wade decision or though a constitutional amendment. Presumably, if Roe v. Wade were overturned, the issue would be returned to the police power of the states, many of which were liberalizing their laws at the time of the decision.

If Fetuses Were Legally Persons

If a constitutional amendment should be passed with the clear purpose of outlawing abortion, how would it be enforced? Politicians who proclaim themselves "pro-life" may also say in their campaigns that it is only the abortionist whose actions would be punished, but it would be difficult to maintain such a position and still hold that fetuses (or for that matter, women) were persons with rights. All those aspects of the law that deal with being an accessory to crime would have to be ignored. It is the woman, after all, who seeks out the abortionist and usually who pays to have the operation performed. If the operation is a crime, surely she is instigating it? Unless she herself is in some sense unable to contract, or under duress — like a minor, or a married woman under nineteenth century common law, or a slave before the passage of the Thirteenth and Fourteenth Amendments — not a legally autonomous being.

And what about the legal requirement that every death that doesn't have an attending doctor's certificate incur an investigation at the least, and often an inquest? Obstetricians, one can predict, would protect their miscarrying patients whether they knew the circumstances of miscarriage or not. But poor women without doctors would be at risk. And what evidence or proof could be given that the miscarriage was not induced? One of the reasons given for the common-law acceptance of abortion was the impossibility of proving that the fetus was alive at the moment of intervention. Even if the fact of an abortion could be proved, unless it took place in a hospital setting, complete with ultrasound and heart monitors (and records), it would be virtually impossible to prove the exact time of death. Would most cases be left open indefinitely in the absence of proof, since there is no statute of limitations on homicide? One way to get evidence, of course, would be to legislate that fetal remains be preserved in the case of miscarriage, so that they could be subject to autopsy, and to make it a crime to dispose of them. But most abortions take place in the very early stages of pregnancy when pregnancy does not show, so how would authorities know that a pregnancy had existed that might have been aborted rather than miscarried? Perhaps pregnancies, like gunshot wounds, would have to be reported by doctors. But a woman can buy a pregnancy kit to determine if she is pregnant without ever seeing a doctor. How would the authorities find out who was pregnant? As in the drug wars, a system of snitches, perhaps even of mandatory pregnancy tests of those who seem suspect. It is hard to see how laws could implement such an amendment without making second-class citizens out of women: infantilizing them and/or physically supervising them to make sure the authorities know what might be transpiring within their bodies.

The Argument For a Woman's Right To Choose

However, a woman's right in this area can't be protected merely as a pragmatic issue; it is first and foremost a philosophical and moral issue. The movement for women's rights that surfaced in the late eighteenth and early nineteenth century in England and the United States was an offshoot of the classical liberal Enlightenment concern with individual rights. Women too, it was argued, had a natural right to life, liberty, property, and the pursuit of happiness, and the law should not deprive them of these rights. Not much attention was paid to abortion by the eighteenth and nineteenth-century early feminists; it became a feminist political rallying point only in the late nineteen sixties. By then a strong new wave of feminism was beginning, which flourished on many fronts, drawing from New Left sources but also rediscovering classical liberal feminists such as Elizabeth Cady Stanton and John Stuart Mill and reprinting their works. Somewhat tentatively at first, groups like NOW endorsed a right to reproductive freedom, including abortion. The National Abortion Rights Action League (NARAL) was founded, and, as Betty Friedan recounted in her 1977 book, It Changed My Life, at its first meeting added to arguments for the rights of doctors to prescribe whatever medical procedures they thought necessary a statement about a woman's right to determine what was done to her body. Individualist feminists of the time applied the language of natural rights to abortion law and demanded the repeal, not just the reform, of antiabortion laws, as well as the repeal of laws banning birth control.

A detailed individualist feminist argument for such a right has been made by Sharon Presley and Robert Cooke in a 1979 paper issued by the Association of Libertarian Feminists called "The Right to Abortion: A Libertarian Defense." In it, they argue on the basis of natural rights, specifically on liberty of conscience, consciousness, and choice (a position which they attribute in a general way to many Western thinkers who inspired social and religious revolt). Many others begin with the Lockean position of having a property right in the control of one's body, but Presley and Cooke say that argument both distinguishes falsely between the "self" that owns and the physical body that is owned and implies that people can be property. "A person is a moral agent," they write,"by virtue of having and being aware of the possibility of choice (that is, the capacity to choose and act). The whole person is the self and the actor."5From this it follows that the issue is a woman's right of self-determination that includes "not only the right to control her physical body and all that happens within it, but the psychic and existential components of her life and well-being as well." She has a right, not just to choose whether or not to function as a mother, but a right not to be forced to be a "baby-machine"; her right of choice has been taken from her by requiring a continuation of pregnancy even if the fetus could later be removed and transplanted elsewhere and she were not required to raise it after it became a child. [5]

Presley and Cooke also deal with the controversy over whether the fetus is an independent being. Although it is true that the fetus is not literally a part of the woman's body, like an arm or a leg, it is not only inside her and attached to her but, like a parasite, is dependent on her systems for circulation, nourishment, and oxygen. They then draw a sharp distinction between the terms "human being" and "person," often used synonymously, to address the assertion that the fetus is a "person." But is it? They point out that antiabortionists tend to overlook the difference between biological humanity and psychological humanity: the fetus obviously has human DNA and therefore is a human being. However, this doesn't yet prove that the fetus is a person. [6]

A person is an organism that can engage in what psychologists would call "purposeful action" and philosophers would call "making choices." From a psychological point of view, the necessary condition for rationality and self-consciousness is the capacity for cognition - that is, the process of integrating perceptions and sensations into a mental organization, which in turn enables the individual to engage in intentional purposeful action and other intellective activities, including remembering, etc. But none of these faculties can be manifested until after birth. The perceptual process necessary for cognition can begin only when the organism is subjected to outside environmental stimuli, that is, when there is something to perceive. In the uterus, a strictly limited sensory environment, only the most primitive level of sensations and reflexes is possible for the fetus. Sensory-deprivation experiments with isolation tanks (an environment similar to the uterus) have shown that, even for cognitively functioning adults, the perceptual field dwindles to almost nothing under such conditions." [7]

Since Presley and Cooke's article was written, more scientific data has led even some of those with religious concerns to find the idea that there is a "right to life" as early as conception difficult to accept. After a fertilized egg is implanted in the placenta, its cells are not differentiated for approximately two weeks, and technically it is called a "pre-embryo" during that period. In 1991, the New York Times reported that Roman Catholic ethicists had written in two scholarly journals, the Kennedy Institute of Ethics Journal and Theological Studies, that the pre-embryo should not be considered a human person, despite the suppositions of church teaching. One of these ethicists, Dr. Thomas A Shannon, was quoted as going even further, and accepting the concept of "brain birth" as marking "the beginning of personhood." Different proponents of this concept, according to the article, place the occurrence at different points ranging between 8 and 28 weeks of pregnancy. [8]

What Are Rights, Anyway?

The idea that people have rights and what that entails is not self-evident; it is a philosophical issue that many people prefer not to analyze in detail. Christian fundamentalists like to think that it is a concept inseparable from religion that cannot be justified except as God's gift, and they speak of God-given-rights as one indivisible term. The Enlightenment philosopher John Locke conceived of the idea that we have rights by our nature — they are natural to us, and he grounded the concept in the idea of property in oneself and one's body, pointing out that, since one has to be able to benefit from ones labor in order to stay alive, no human existence would be possible without ownership — of oneself and of the product of the work that one did. Ayn Rand elaborated on this observation to discuss rights as conditions necessary for the operation of consciousness and choice, which individual human beings need to survive.

All these approaches view rights as freedoms, not as entitlements to goods or services from others. But contemporary political language conflates freedom and entitlement, and speaks of a right to health care (which necessitates securing the property and services of some to benefit others) as if it is the same sort of right as a right to freedom of speech (which only requires the government not to infringe on the speech of the speaker). Rights that exist because of our nature as human beings exist prior to and are more fundamental than the formation of governments, and do not depend on being recognized by governments in order for us to say that they exist. Those who speak on behalf of natural rights, as did the Declaration of Independence, can logically hold that they should be absolute conditions of the way government should treat the individual, as all they require is that others should abstain from action. But entitlement rights need to get something from somebody, it order to give it to someone else, and are created by government to do so. They must, therefore, of necessity be constrained by economic conditions and, certainly in a democracy, by some acquiescence on the part of the people required to provide the means to implement the "right." It is generally recognized, therefore, that entitlement rights are subject to change with changing conditions.

No one is entitled by nature to a certain amount of property or happiness, we are only entitled to the freedom to pursue it. Nor does the right to life philosophically include various entitlements for all citizens to necessities such as food, shelter, education and medical care. In an affluent society such as ours, we may loosely call government created entitlements to such goods and services "rights," but we are always aware that they are political arrangements, such as welfare programs and the social security system, to which individuals — or indeed the entire population — may suddenly have no right.

In the abortion controversy, one of the confusions is that, while using the same vocabulary of rights, one side is speaking of a entitlement right of the fetus (which requires the protection of someone's womb until birth) while the other side speaks of the freedom of a woman to control what is within, and is done to, her body. Therefore, there is not a true conflict of rights involved in the question of abortion. The conflict is between a woman's freedom and a (sometimes enforced and sometimes not) entitlement right for the fetus, that, all things being equal, can seem gratifying to our sense of fellow-feeling.

Gratifying only if one does not look at it closely. If the natural right of a woman to lead an autonomous life is considered subject to the entitlement right of any fetus (and fetuses can be conceived involuntarily), and if society could enforce that entitlement, this would mean that women are worse than secondhand citizens — they are fields to be plowed. Once pregnant, their actions can be circumscribed, certain jobs can be forbidden, and if they should miscarry, they can be subject to police investigation. All women are in this view intrinsically less valuable than all fetuses — they would indeed be seen by the law as baby-machines.

The people who are distressed by abortion are not usually trying to make secondhand citizens out of women, they see the same continuum of life that women with wanted pregnancies see. Meanwhile, a sizeable number of women continue to assume their right to abortion. These women are often, perhaps usually, not thinking about rights in the abstract, or when life begins, or when the soul enters the body. They are making difficult choices about their bodies and their lives. As Betty Friedan once said, "Nobody is for abortion, any more than anyone is for mastectomy." There are about 1.5 million abortions in the U.S. each year. There is no reason to suppose that most of these abortions would be ended by a constitutional amendment. Other factors have probably operated here: if there is indeed a large reduction in the per capita incidence of abortion since the late nineteenth century, for example, it undoubtedly has been primarily affected by the increasing availability of birth control. Legal abortions of course could be ended. Safe abortions could be ended. But abortions still occur. The argument is not over.

References
1. Barbara Crossette, "A Global Divide on Abortion Splits Poor From Rich," New York Times, 7 June 1998, sec. 4 p.16
2. Katha Pollitt, "Abortion in American History," The Atlantic Monthly, May 1997, p.111, a review of Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867-1973 (Berkeley: University of California Press, 1997)
3.Ibid.
4. Lucinda Cisler and James Clapp, "Abortion Ruling: Some Good News and Some Bad News," Association of Libertarian Feminists, an ALF Discussion Paper
5. Sharon Presley and Robert Cooke, "The Right to Abortion: A Libertarian Defense," a ALF Discussion Paper, Association of Libertarian Feminists, 1979, p. 1
6. Ibid. p. 2
7. Ibid. pp. 2-3
8. Peter Steinfels, "Catholic Scholars, Citing New Data, Widen Debate on When Life Begins," New York Times, 13 January 1991, sec. 4, p. 1

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