Abortion Law - Part 2
by Joan Kennedy Taylor

Children are a delight and an asset. They are also a responsibility and an expense. In primitive, preindustrial societies, children are usually more of an asset than an expense: they can be put to work for the family and will care for the elderly when they grow up. In such societies, child mortality may be high, another reason why having many children is productive and contributes to the prosperity of a community. But population growth can also swamp the prosperity of communities. As societies become urbanized, and learn ways of prolonging life and combating child mortality, large families can become more of an expense than an asset for the individual couple, and counterproductive for the society itself. So, throughout history, population increases and decreases have been a societal concern.

Communities, large or small, have found ways of legitimizing the choices that individuals and couples make to limit their offspring. This is not just the contemporary phenomenon of encouraging family planning; the choices predate knowledge of birth control techniques, let alone their dissemination. Ancient Greece, as well as China as late as the early twentieth century, accepted infanticide by abandonment. Most Western European societies after the Renaissance considered infanticide to be unacceptable, but foundling homes in which most of the children died and a tacit acceptance of the individual choice of abortion were another matter.

Ethical and Legal Concerns

A legal blind eye to early abortion has been routine in Western history. Surprisingly, given the importance of the Catholic Church as an adamant crusader against abortion today, the standard was articulated by a Catholic, the thirteenth century St. Thomas Aquinas, whose teachings are still considered by many to be a cornerstone of Catholic doctrine. The question was: at what point does a fetus become a person with a soul? Aquinas challenged the previously-held Aristotelian view that the soul entered the fetus "forty days after conception for a male and eighty to ninety days for a female." He held that the "rational soul" enters the fetus of either sex upon quickening, the time when the fetus first moves within a woman's body. (Quickening gen-erally occurs in the beginning of the fourth month of pregnancy.) Scholars have generally agreed that Aquinas's assumption was adopted by European common law courts and was brought to colonial America by British common law, thus forbidding abortion after quickening.^1 However, even this limitation on abortion has been questioned by law professor Cyril C. Means, Jr., who claimed in a 1971 law review article that his research showed that "pre-nineteenth century Anglo-American common law was totally silent on the subject and didn't even include 'quickening' as a cut-off point.

In the world today, only five countries (Andorra, Chile, El Salvador, Malta, and the Vatican) unequivocally prohibit all abortion, even if done to save the woman's life. These countries have adopted this policy in accordance with the current teachings of the Catholic Church, which today is perhaps the strongest supporter of limiting or prohibiting abortion in the name of a right of the fetus, as a being that is not only living but has a soul. No non-Catholic country today totally prohibits abortion. Outside of the five countries with total bans (all of which are small and geographically close to other countries that permit abortion) all others, Catholic or non-Catholic, permit it under some circumstances. Seventy-five percent of the members of the United Nations have laws such as those in the United States, under which a woman in the early stages of pregnancy does not need to give a reason to the authorities for desiring an abortion.

The 1979 ALF paper, "The Right to Abortion: A Libertarian Defense," by Sharon Presley and Robert Cooke, not only presents a rights-based argument but confronts the counter argument that their position would justify the killing of comatose or retarded people ("A car does not cease to be a car because its brakes don't work."^4) They conclude that no pre-birth biological moment occurs when it can be said that a given fetus is capable of extrauterine survival. Therefore there is no absolute answer to the question of when the fetus might become a person while still in the womb. We can be sure that it does at the moment of birth, when outside environmental stimuli begin to impinge on the organism and perceptions and sensations begin to be organized. They therefore hold that the woman has the moral right to abort up until that point.

For some, this raises the question of whether the choice of birth as a dividing line for a child's right to life is arbitrary. The slippery slope of biological change, leading from no possibility of survival to being equipped to survive, has even been used more recently by one self-styled bioethicist to justify early infanticide. On December 2, 1999, Australian-born Peter Singer (a professor of bioethics at Princeton University) told an audience at Yale University that he does indeed support infanticide, particularly, but not exclusively, of disabled children. In an interview with the National Catholic Register on that occasion, he said, "I think this issue exactly captures this problem of drawing lines. I think there's a problem in defending all forms of abortion and totally rejecting infanticide."^5 Presley and Cooke predicted such an argument and quote in rebuttal a prestigious 1974 book on child development that points out that the newborn, because he or she is for the first time subjected to "states of imbalance, deprivation, or discomfort," and because he experiences events "which shape his perception," engages in self-directed action. Later on, the same book says, "The newborn is a remarkably capable organism from the moment he begins to breathe.... We have exploded the myth of newborn insensitivity and incompetence."^6

Feminist Arguments Against Choice

After the contemporary wave of late twentieth-century feminism began, it was often assumed that all those who consider themselves to be feminists were absolute supporters of the freedom of a woman to control her body in every way, including abortion. If this were so in the early days, it is no longer. There is a significant minority of self-avowed feminists who agree with the position that, as a spokeswoman for "Schreeuw om Leven/Cry for Life," a group based in The Netherlands, put it in an e-mail: fetuses are human beings and not the property of women, any more than women are the property of men; the abortion "industry" is run by men who make money from women "by performing this physical and emotional operation"; and abortion exploits women by encouraging men to feel less responsible about pregnancy. The message ends by saying that a woman who has an abortion experiences "scarred emotions, a hurt body, and a dead baby. Do you believe in freedom and happiness for all women?"^7

This is a good example of what has been called "victim feminism," that is, a feminism that glosses over the idea of women as independent beings capable of life choices even if they make mistakes in favor of a point of view that assumes that the control men have over society is so complete that women are brainwashed into "choosing" only what men want them to. Any woman who chooses such options, whether the issue is consenting to non-marital sex, performing in pornography, or having an abortion is, according to this view, saying what she has been forced to say and doing what she has been forced to do by male oppressors. However, individualist feminism, the form of feminism which I believe has prevailed throughout the history of the movement, encourages individual women to take responsibility for their own happiness and to weigh alternatives and make choices. It is eloquent and disturbing to describe a woman who has an abortion as having "scarred emotions, a hurt body, and a dead baby," and some women may indeed have thought of the experience in this way. But that does not mean that the abortion option should not have been open for the many who did not.

As for the concern that most women who have abortions experience "scarred emotions," the American Psychological Association appointed a panel of experts in 1989 to "consider the best available scientific evidence on psychological responses to abortion" and published its results in an article in the October, 1992 issue of the American Psychologist.^8 The panel concluded that "severe negative reactions are infrequent.... Women at higher risk for relatively more negative responses include those who are terminating pregnancies that are wanted and meaningful, who perceive a lack of support from their partner or parents for the abortion, who are more conflicted and less sure of their decision and coping abilities beforehand, who blame themselves for the pregnancy, and who delay until the second trimester." The panel also found that for unwanted pregnancies terminated by abortion, the time of greatest stress came before, not after, the abortion.^9

There is an organization, run by Doris Gordon, a self-styled libertarian feminist, that presents a totally non-theological rights-based argument, Libertarians for Life. In an introduction to a new publication projected for 1999, Gordon describes the historical development of her position as derived from the libertarian non-aggression principle (it is wrong to initiate force against others) and the concept of parental obligation (which she describes as follows: "the support born children receive from their parents is theirs 'by right'"). The final crucial step she phrases thus: "Given that human offspring begin life when conceived, and then given parental obligation, it follows that parental obligation begins not at birth but at fertilization. I had to conclude that even given woman's right to control her body, prenatal human offspring have the right to be in the mother's womb."^10

The Policy Quandary — Confusing Two Kinds of Rights

If we believe in a right to terminate pregnancy, do we then discount the concern about the fetus shown by Doris Gordon and others? Gordon will not allow any distinction between being a human being with the potential of being a person and being a person with rights. And she is consistent. Since for libertarians the purpose of the law is to protect rights, and in her view the fetus has a right to life, she would allow no legal exception in a case of rape. However, this "given" of hers about life beginning at conception — meaning that rights begin at conception — is the very point on which the two sides in this discussion divide axiomatically. I submit, the axiom from which one starts determines the outcome of the argument. Everyone knows there is a developmental continuum. But one side says axiomatically that no matter how early the stage we are dealing with, we are dealing with a potential person; the other side says it is a potential person. Axioms are incapable of proof, so this argument can never be definitively won. A principled argument could be made, derived from either axiom, for either side. Many would say, as I would, that this is the reason that the law should stay out of the issue.

In Part I of this discussion, I support the position that a "fetal right" can only be understood as an entitlement right against the woman. An entitlement right is not a natural right. An argument has been made for the prior right of the donor of her bodily systems, without making the entitlement distinction, that uses a metaphor about being forced to supply blood to a talented violinist. (A contrary argument is made by Doris Gordon that parents have an obligation to supply the needs of their children. Most people think of this as an unwritten contract, entered into by deciding to give birth to the child. But that wording, of course, would destroy her point, as she denies there is a right to make that decision.) To my mind, the axiom that a living, autonomous being has a right to control her life; has a right to commit suicide, for instance, even if a fetus is destroyed in the process, is self-evident, as all axioms are. The alternative would be total control by society of all fertile women, which no Western society until now has even considered. (A picture of the kind of society such control might lead to is given in Margaret Atwood's novel, The Handmaid's Tale.) And indeed the other side of restricting the right to choice, the requirement that a woman needs permission from government to bear a child that she wants, is rightly looked on with anathema by almost all Americans.

Where We May Be Heading

It is unlikely that policy will be decided either by philosophical discussion or legal argument. What seems possible is that people most deeply concerned about the issue, especially women, who are after all the ones intimately involved, will band together in the direction of expanding options.

It may seem cold to say that the market is changing about this issue, but it is. Doctors are more and more unwilling to do abortions; hospital mergers have increased the proportion of hospitals that will cite religious reasons for not allowing them to be performed on the premises; medical schools no longer routinely teach the techniques but make it an elective; pharmaceutical companies are less willing because of the threat of litigation to spend money even on contraceptive research. Does this mean that popular opinion is moving in the direction of forbidding abortions? Not according to the polls. It may mean that our society will have to move in the direction of taking the control of pregnancy termination out of the hands of the medical establishment: to permit midwives to do abortions as they once did, to allow paramedicals to do them, to put the techniques of RU486 and of menstrual extraction in the hands of pregnant women themselves. As feminists, we must honor the choices both of those women who believe that life begins at conception and they would never abort, and of those who believe the have the right to conduct all aspects of their lives, including deciding whether or not to let gestation take place inside of their bodies.

A very interesting move occurred in the early nineties, with the formation of the tax-deductible Common Ground Network for Life and Choice. It is a coalition of pro-choice and pro-life supporters looking for dialogue, new approaches, and ways to address shared concerns, without asking each other to change "his or her belief about the core issue of abortion." What concerns are they addressing? Teenage pregnancy. Inadequate resources for women and children. Adoption. Fostering communication. Mary Cunningham Agee, who founded a group called The Nurturing Network that provides shelter and services for pregnant women who do not want abortions was on the Advisory Board in 1994, as was Margaret Mead's daughter, Mary Catherine Bateson.^11

More recently, in 1999 a bill was introduced in New Jersey that forbade "post-viability" abortions, with an exception for the physical but not mental health for the pregnant woman. It was denounced by some people on both sides in the abortion debate, but also supported by a coalition from both sides, including pro-choice Governor Christie Whitman and prominent antiabortionists William F. Buckley and Princeton law professor Robert George. In a television program with Professor George about the bill, Buckley discussed the fact that fetuses can now be removed before viability, operated on for defects, and reinserted in the womb to be brought to term. He then raised the issue that perhaps in cases of the permitted post-viability abortions, it should now be considered a "derivative responsibility of the state to remove the child."^12 Since well over 90 percent of abortions occur in the first trimester, the introduction and support of such a bill may indicate a lessening on the part of many antiabortionists of their insistence on outlawing early abortion. A "Common Ground" mentality seems evident even on the part of professional pro-choicers, like Kate Michelson, the head of NARAL, who on a television program on January 29, 2000 said to John McLaughlin that she hoped that both sides in the debate would join to ultimately make abortion unnecessary.

In doing this, we mustn't lose sight of what should be women's legal right to choose. Constitutional strict constructionists may raise their eyebrows at the rather stretched argument given in the birth-control cases and Roe v. Wade of a "penumbra" of rights "emanating" from several statements in the Bill of Rights to imply a right of reproductive privacy. But the wording of the Ninth Amendment, that reserves to the people rights not enumerated in the Bill of Rights, coupled with the early common-law silence on abortion make a powerful constitutional case that even strict constructionists should find it hard to counter.

In fact, there seems to be a general lessening of enthusiasm on the part of the public about abortion confrontation. In part this must be due to the shock felt by all of us at the spate of murders of abortion providers in the late nineties, justified by the perpetrators as necessary to stop "the murder of innocent children." Proponents of both sides of the controversy are becoming less enamored of abstract generalities and more realistic about what they are talking about. Anti-abortion conservatives now routinely say that they don't expect to get an amendment passed. Two conservative Republican presidential candidates, first Dan Quayle and later John McCain, got into political trouble for saying that if a daughter of theirs became pregnant, they would advise her not to have an abortion but the decision would ultimately be hers — thus recognizing implicitly that there was a hierarchy of rights involved, and they were not about to call for the arrest or even ostracism of a loved family member.

On the other side, pro-choice activists are now showing public concern for the trauma of abortion and for the fact that many women with wanted pregnancies do in fact feel as if the fetus is a person — naming it, speaking to it, planning a future life together — and that society does not provide enough space in which a formerly pregnant woman can mourn a miscarriage. I think this softer position is a reflection of a differing awareness of what abortion really entails. What is causing the change? If I were to put it down to any one factor, I would say, the ubiquitousness of ultrasound. Up until very recently, a pregnant woman might deduce that she was pregnant, from rabbit tests and morning sickness, but there was no direct evidence that made it real to her. But modern technology has had an enormous emotional impact. I don't think it would be possible today for pro-choice women to give an outpouring of support to a doctor accused of manslaughter because it was held that he smothered a late-term fetus that he aborted legally, as they did to Dr. Kenneth Edelin in the 1970s. At the time, feminist activists took the position that this was what the woman had wanted. Today, as with the furor over descriptions over the technique known as "partial birth abortion," we have seen too much and know too well that we are dealing with a human being that looks like a baby, whether or not it is technically viable, to be so callous. With the advent of ultrasound, we have all seen something that looks like a human being and have listened to a beating heart.

Those who demonize choice create a totally false picture; they see women as irresponsible pleasure-seekers, requesting (and getting) partial-birth abortions on whim by the thousands in their ninth month of pregnancy. (There are approximately 600 third trimester abortions a year, almost all of which are because of grotesque fetal deformity or threat to the life of the woman.) But on the other side, those who demonize anti-abortion see only religious fanatics who are willing to condone the murder of those who help women caught in a soul-searching dilemma. Demonizing anyone is depersonalizing them; seeing them only as nonhuman roadblocks in the way of one's goals. What I am pointing to is a growing awareness on both sides of the importance of feelings, about women and about progeny. What we need to do is to find a societal way to reconcile the natural rights of women with the fact that we are talking about the process by which life continues. To discount the importance of either is to diminish our humanity.

References

1. Judith Hole and Ellen Levine, Rebirth of Feminism (New York: Quadrangle Books, 1971; reprint paper, 1973), pp. 279-80 text and fn. 4
2. Cyril C. Means, Jr., "The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?" 17 N.Y. Law Forum 335 (1971) as summarized in Presley and Cooke, "The Right to Abortion," p. 6
3. "North and South: Different Standards Around the World," graphic based on information from the Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat, New York Times, June 7, 1998, Sec. 4 p. 16
4. Ibid., p. 3
5. Josh Mercer, "Infanticide Advocate Gets a Warm Welcome at Yale," National Catholic Register, Vol. 75 No. 50, Dec. 12-18, 1999
6. Presley and Cooke, "The Right to Abortion," quoting Paul Mussen, John Conger, & Jerome Kagan, Child Development & Personality (New York: Harper and Row, 1974)
7. E-mail sent 9/3/99 at 11:18 AM from Cathrina Keet, Schreeuw om Leven/Cry for Life sol.cfl@rainbow.lifenet.nl to the Association of Libertarian Feminists
8. Nancy E. Adler, Henry P. David, Brenda N. Major, Susan H. Roth, Nancy Felipe Russo, and Gail E. Wyatt, "Psychological Factors in Abortion: A Review." American Psychologist, v. 47 n. 10, October 1992, pp. 1194-1204
9. Ibid., pp. 1202-03
10. Doris Gordon, "Introduction," emailed from libertarian@erols.com, January 25, 1999 at 11:13 PM
11. Based on a brochure in the possession of the author
12. "Firing Line," aired on WNET September 3, 1999