ABORTION

Legal Issues

In the historic Roe v. Wade decision of 1973, the Supreme Court of the United States ruled all laws forbidding abortion up to the point of viability unconstitutional, based on a woman's right to privacy. It also found that a woman had a right to abort even a viable fetus if the life or health of the mother was in danger. On an interesting side-note, Norma McCorvy,  who was the "Jane Roe" of Roe V. Wade, made headlines in 1997 by becoming a pro-life activist after 28 years of working in abortion clinics and published her story in 1998 in Won by Love. She now runs a pro-life ministry.

Roe v. Wade  held that society still had an interest in protecting the life of a viable fetus, however, the subsequent Doe v. Bolton construed "health" exception in Roe to include "mental health", so that the mere statement of the mother that she will be psychologically traumatized or face socio-economic hardship if she continues with the pregnancy is enough to justify aborting even a viable fetus. This has amounted to a policy of abortion on demand in the United States, at any time during pregnancy, up to the moment of birth. This included partial birth abortion, which is the delivering of a late-term viable fetus feet first but with the head still in teh womb, at which point an incision is opened up in the skull and the brains suctioned out. Afterwards, the fetus is delivered dead. Since the fetus is still in the birth canal when the procedure is performed, it is considered an abortion, not infanticide, which would be illegal. The American Medical Association says the procedure is "never necessary to preserve a woman's life," and it is generally more risky because it is a breach birthing. Caesarian sections are generally regarded as safer than breach births. It is also possible to perform a non-intact dialation and extraction without birthing the fetus.

Congress passed legislation twice to ban the practice but President Clinton vetoed it twice and there were not enough votes in the Senate for an override. However, Congress, with the support of the AMA, pased a bill banning the procedure in 2003, which President Bush signed into a law on Nov. 5, 2003. The law was upheld by a 5 to 4 vote in the Supreme Court on April 18, 2007. Though the procedure is rare, it galvanized debate over abortion. Opponents argued that any restriction on abortion is a slippery slope while supporters of the ban argued that it amounted to infanticide. According to professional journal of the American Medial Association and a doctor who performed this rare procedure who testified in front of the House Judiciary Committee, about 20% of these procedures are performed because of fetal abnormalities, such as Down Syndrome. The other 80% are for non-medical reasons, such as depression.

Besides partial birth abortion, the courts have so far only upheld minor restrictions of abortions, such as a 24 hour waiting period, informed consent laws which require a woman to be given certain information about fetal development and health risks associated with abortion and parental notification laws for minors seeking an abortion. Even under the Bush administration, the federal government continues to heavily subsidize abortion through grants to Planned Parenthood, the number one provider of abortion services in the United States.

The overwhelming majority of pro-life protesters are entirely opposed to violence against the staff and doctors of abortion clinics or their patients. All major pro-life leaders have condemned people who threaten, harass or vandalize abortion clinics or assault their staff. Many protestors are people of faith, older and predominantly women, who hold signs, pray and sing hymns, or offer literature or attempt to talk to passers by. There have been a few high-profile cases, such as Eric Rudolph, who have killed aboriton doctors or bombed clinics, but these are rare exceptions. Environmental, animal rights and union activists commit acts of murder, violence and terror too, but you wouldn't characterize these movements as terroristic, would you?

A number of high profile cases of violence against clinics by handful of fanatics along with pressure from the Abortion lobby, led to the creation of so-called "bubble laws" which make it illegal for protestors to come within a certain number of feet of a clinic entrance. These are laws which apply only to abortion protestors. They do not apply to union activists, animal rights activists, anti-war activists, anti-globalization activists, or any of the myriad of protestors who are responsible for many times the damage to property and persons as anti-abortion activists. While other groups intentionally block traffic or vandalize businesses as a matter of course, often with impunity, pro-lifers face draconian fines in the tens of thousands of dollars and months in jail for what amounts to misdemeanor trespassing. Other protestors, if cited at all, are usually released hours later or the next day. Some civil libertarians see this as a dangerous, arbitrary and unjustified muzzle on free speech of people with an unpopular message. Local prosecutors have also use RICO racketeering statues intended to go after organized crime to bankrupt individual pro-life protestors and organizations. But on February 28, 2006, after 20 years of prosecution, the Supreme Court, in Schiedler v. NOW, found that peaceful pro-life protestors may not be charged under federal racketeering laws, even if their activities end up costing abortion clinics money.

Many of those who are personally in favor of abortion rights see Roe v. Wade as bad law. Rather than interpreting the Constitution, Roe established new rights by judicial fiat. Were Roe to be overturned, the abortion issue would be returned to the States. It would thus be likely that certain States, such as Utah, would prohibit it under some circumstances, while other States, such as Massachusetts, would allow it under any or all circumstances.

Moral Issues

The vast majority of the 1.3 million abortions performed every year in the United States are performed as after the fact birth control. As condoms are cheap and easily available and sex education given in our compulsory education classes, it's reasonable to assume that a degree of irresponsibility and hence culpability lies with those who conceive a child through unprotected sexual intercourse, the father as well as the mother.

Advocates of abortion rights often bring up hard cases where the mother's health is in danger, where the fetus has a severe birth defect, or case of rape and incest. But these make up a very small proportion of total abortions in the U.S., probably no more than 6% as the table below shows:

Reasons Women Choose Abortion (U.S.) *
Women who conceive children through unprotected sex can give their child up for adoption, as many infertile couples are available to adopt. Newborn infants are in particularly high demand. More couples now allow visitation of the birth mother, which makes the process of adoption less traumatic. If the woman decides to keep her child, private support institutions called "Crisis Pregnancy Centers" offer aid and assistance, including pre-natal medical care, help with medical expenses, and after the birth, housing, food, daycare, job skills and employment. Pregnancy itself varies in how debilitating a condition it may be. Many working mothers take only four to six weeks off for maternity leave, and President Clinton's Family Medical Leave Act makes it illegal to fire an employee for taking off work to birth a child.

Apart from the physical discomfort and risks inherent in delivery, which are minimized by medical supervision, the main hardship the woman with an unwanted pregnancy faces is the shame and stigma of single motherhood, and a brief interruption of school or career associated with late pregnancy, delivery and recovery from the birth. So, it would seem that if the fetus has any moral status whatsoever by virtue of being an actual human being, but, like an infant or a coma patient, only a potential person, it's vital interest in remaining alive would trump the woman's significant, but far less vital interest in avoiding several months of physical discomfort, a low risk medical procedure and some economic, scholastic and social disruption in her life. This seems especially true if, as is statistically likely, she negligently conceived the child through a consensual act of unprotected sex.

Immoral But Legal?

Even if it is admitted that abortion may be immoral under some circumstances, what are some reasons for keeping it legal? Advocates of abortion rights argue that making abortion illegal will just push desperate women into having back ally abortions in unsanitary conditions and lead to the deaths of women. Women of means will travel to other states or countries to have an abortion while poor women will face the choice of the back ally abortion or being forced to birth the child. Children who are born unwanted to single mothers grow up with a strong predisposition towards substance abuse, psychological problems and are much more likely to commit crimes. As a matter of fact, some have suggested that safe, legal and subsidized abortion may in part be responsible for the drop in crime over the last few years. If these children were born, they would require public education funding, daycare or a stay at home mother and thus keep their parents in poverty. Having too many children too early is one of the greatest reasons for poverty in the United States. Based on these utilitarian considerations, many have suggested that our present federal protection of abortion rights is justified. However, we might also wonder whether similar utilitarian calculation might justify other social policies which harm the powerless in order to benefit the majority. For example, if elective abortion is effective at keeping down the crime rate, so would forced sterilization of poor single parents. We seem to come back to Don Marquis' contention that "whether or not abortion is morally permissible stands or falls on whether or not a fetus is the sort of being whose life it is seriously wrong to end." It if is, then it seems very difficult to find any utilitarian considerations strong enough to justify elective abortion; if not, then it's hard to find any fault with abortion for any reason.

* Bankole, Akinrinola; Singh, Susheela; Haas, Taylor.  Reasons Why Women Have Induced Abortions: Evidence from 27 Countries. International Family Planning  Perspectives, 1998, 24(3):117-127 & 152.