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In Defense of Abortion’s Messy Status Quo
Alabama Governor Kay Ivey signed the state’s Human Life Protection Act on May 15, enacting one of the toughest anti-abortion laws in the nation. The key provision of this statute renders it criminal for “for any person to intentionally perform or attempt to perform an abortion,” subject only to an exception where the abortion “is necessary in order to prevent a serious health risk to the unborn child’s mother.” The drafters of the legislation refused to add any amendment that would legalize abortions in the cases of rape and incest. The legislation specifically exempts women who have abortions from any form of civil or criminal liability, but it imposes sentences up to life imprisonment for any physician within the state who performs an illegal abortion.
The law is on a direct collision course with Roe v. Wade, which in 1973 established a constitutional right to abortion, even though at the time of its passage abortions were commonly, but not universally, subject to criminal sanctions either by statute or at common law. Governor Ivey makes no bones about seeking a show-down. The Alabama laws punishing abortion are still on the books. She wants the Supreme Court to “revisit”—i.e. overrule—Roe and thinks that the latest Alabama law is the best way to force its hand. Predictably, the statute’s passage has generated intense dispute over abortions that center on the merits of the legislation and the likelihood that the Supreme Court will modify or strike down Roe.
The Alabama law classifies abortion as a felony form of homicide. Homicide in its simplest form is the deliberate and unlawful killing of one person by another. No one doubts that an abortion is a deliberate procedure, so the questions are: What is a person? And what are the justifications that make it lawful to kill another person? Abortion advocates defend against the charge of homicide on both grounds. On the first, their argument is that no one becomes a person until he or she is outside the womb. As CNN Contributor Christine Quinn put the point: “When a woman is pregnant, that is not a human being inside of her. It is a part of the mother.” That claim brought forth a fierce response by Alexandra DeSanctis, a staff writer at National Review. In an article addressing the abortion controversy, DeSanctis raised the simple point that the DNA of the child is distinct from that of the mother and father, and that it is thus absurd to claim that an unborn child with a heartbeat does not have the status of an independent person.
Should we accept the premise of so-called heartbeat bills that the decisive point for personhood is when the heartbeat can be detected (after six weeks), long before any fetus becomes viable outside the womb? DeSanctis does not address the place of conception in the argument about the beginning of life, but I think that any claim that the detection of a heartbeat is the critical point is ultimately untenable. There are no clear mileposts during the process of pregnancy that generate the needed hardline between non-person and person. The DNA of each human being, as DeSanctis notes, is distinctive—and it becomes distinctive, I would add, at the time of conception, which is the only coherent point at which it is possible to say that human life begins. The point is evident to women who want children and treat pregnancy as a welcome event. The status of the fertilized egg as a person does not shift because pregnancy is unwelcome, even in cases of rape or incest. The Supreme Court made a hopeless intellectual muddle out of Roe when it waited until viability to extend full protection for the fetus. The problem about the criminality of abortion cannot be wished away by dubious metaphysics.
The next stage in the debate turns to the question of whether there is some justification for performing an abortion that removes its unlawful taint. The Alabama legislature recognized that the class of justifications for abortions is not empty by recognizing the legality of an abortion to save the life of the mother or to prevent a serious health risk, which, it rightly added, would not include the ordinary emotional distress of pregnancy. This justification has been recognized long before Roe. For example, in Rex v. Bourne (1938) an English trial court held that the Crown could not convict Mr. Bourne, a professional physician who had admitted to performing an abortion in a hospital, under the Offences Against the Person Act of 1861, unless the prosecution proved beyond a reasonable doubt that Mr. Bourne had not performed the abortion “in good faith for the purpose only of preserving the life of the girl.”
Nonetheless, it is far from clear that the only acceptable justification for an abortion is the protection of the life or health of the mother. Certainly, even those who are against abortions at will might recognize that rape and incest place intolerable burdens upon a woman that go far beyond those of ordinary pregnancy, and would allow abortions in these cases, at least for women who had received some medical counseling. It is just that position, for example, that President Trump, invoking the authority of Ronald Reagan, endorsed in his recent pro-life tweet.
The list of permissible justifications could, in my view, easily expand to include the woman who knows that she carries a seriously defective child, including one with a fatal condition like Tay-Sachs disease that results in an early death after a painful life. Indeed, women desperate for children, who have endured expensive medical procedures, nonetheless overwhelmingly choose to terminate pregnancies that carry this grim prognosis. In my view, choices like these carry enormous weight, which the Alabama statute fails to address with its broad claim “that every life is precious and that every life is a sacred gift from God.” Some women may still go to term when facing these prospects, but it seems inhumane to require every woman to do so.
The gravity of these cases of serious disease should, however, lead us to reject as a matter of principle broader claims that a woman should be able to terminate a pregnancy because, as CNN’s Chris Cuomo claimed, “Her body is always her property.“ That point is true, but quite irrelevant. Philosopher Judith Jarvis Thomson analogized pregnancy to forcibly hooking up a woman to a famous, unconscious violinist for a period of nine months, because only she has the right blood type to deal with his disease. The comparison is grotesque. Pregnancy is a natural process and to treat an unborn child as some kind of invader of the womb misses the entire point. There is a powerful common law that says no one is under a duty to act as a good Samaritan to rescue a stranger. But that principle has never applied to the parent-child relationship. The absolutist position is thus desperately wrong, which is why some anguish occurs in dealing with the credible justifications that the Alabama statute overlooks.
These points have some imperfect resonance with popular sentiment. As Patrick Egan, a professor of politics at NYU, has pointed out, most Americans—like Trump—tend to avoid the extremes that hold abortion is either always allowable or always forbidden, and struggle to find an appropriate middle ground. Most Americans tend to think of abortions as immoral, but they do not tend to think of them as illegal. At the same time, many Americans think that the legal and moral questions are related. Given these mixed sentiments, the Alabama legislature’s initiative may backfire politically. Many Republican voters who are conservative on fiscal issues are more liberal on social issues, which means that Alabama may have handed pro-choice advocates a powerful tool to galvanize Democrats and woo independents for the upcoming 2020 election. It is virtually certain that any lower court that looks at the Alabama decision will be duty-bound to strike it down under Roe. The same is likely to prove true of other strongly anti-abortion statutes, such as the recent Georgia law and another bill making its way in Missouri.
It could well be, therefore, that the Supreme Court will refuse to entertain any challenge against Roe v. Wade in the absence of any conflict between the circuits. I have no doubt that Roe is wrong as a matter of constitutional principle. And yet, with evident uneasiness, I think that it would be a mistake for the Court to rise to the bait in the Alabama case. Socially, the messy status quo may prove more durable than either of the two extreme legal positions.
© 2019 by the Board of Trustees of Leland Stanford Junior University
Published in Law
I didn’t say the child committed a crime, a logical absurdity. I said the product of conception is not innocent and is an abomination. I also said that once there is a heart beat then the child’s rights outweigh those of the mother. I’m not saying anything in the slightest that differs from the Alabama law.
I guess people don’t like to admit that a mother has a right to determine who gets to share her genetic material. Rapists should not be rewarded with children.
Our society is saturated with the sentiment that our children are our attempt to achieve immortality, in a way. This is not an arbitrary creation of our culture. It’s the way humans tend to think. It is bolstered by the past few hundred years of post-Mendel (I’m sure I spelled that wrong) genetics.
Many pro-abortion people argue that even if an unborn child has a right to life, this does not mean that the woman can not deny the unborn child’s access to her body. So, I think what they are saying is that if the unborn child can survive outside the mother’s womb, then it can survive. However, if the mother does not want to provide nutrients, via her body, to the unborn child, she should not be legally obligated to do so.
I don’t buy this argument. But I can understand why some people would make it. During pregnancy, a woman goes through significant physiological changes, changes the woman might not want to go through and that might motivate her to seek an abortion.
But the mother’s rights should, in my opinion, be balanced against the rights of the unborn child. I’m not exactly sure how to balance those two person’s rights, however.
Not being a native of this country my knowledge of Roe v Wade is to say the least sketchy, but I understand that this and other SCOTUS decisions subsequently are based on the notion of “fetal viability”. This is the sort of solution which one would expect from the legal profession, faced with a situation in which ethical imperatives are clearly at odds with (perceived) public opinion.
Let us therefore start by identifying where ethics and law coincide. Both accept the principle that a woman has a right as to what is done with her body. But this right (like any right), can only be exercised to the point at which its exercise would impinge upon the right of another person, in this case the unborn baby. This is where ethics and the law part company. No-one can reasonably claim that the start of life and fetal viability are contemporaneous. The existence of a heartbeat comes closer, but for the heart to start beating the fetus must already be “human”. The only watertight definition is that life starts at conception and, therefore, abortion at any time is infanticide.
The pro-abortion lobby makes much of the woman’s right to something they call “reproductive choice”. Why a woman cannot exercise her reproductive choice BEFORE getting pregnant escapes this mere male. Effective birth control methods do exist.
The question of pregnancies resulting from rape/incest is thornier, but one must be consistent. If abortion is always infanticide, as I believe, then there is no ethical justification for terminating a pregnancy, however it came about. The unfortunate victim can always give the child for adoption once born. I agree that this is tough on the victim, but murder is murder, whatever the circumstances. A battered wife who kills her abusive husband is still charged with murder.
It must be accepted that whatever solution is finally adopted, assuming that at some point SCOTUS revisits Roe v Wade, will never satisfy everyone.
As a postscript, the much-admired Alexandria Ocasio-Cortez, more vocal and less intelligent than most Democrats (an exploit in itself) tweeted: “How can you be pro-Life and at the same time support the death penalty?” Simple, dear AOC; The death penalty is applied to murderers. A murderer has by definition deprived his victim of his right to life. In doing so, he forfeits his own right to life.
Exactly. Roe and the subsequent case, Casey, were based on the assumption that pre-marital child birth was an embarrassing stigma, that birth control methods were ineffective and not available to many women, and that the child could not survive prior to the third trimester. All three assumptions are no longer valid.
A fourth important part of the analysis, per my memory, is that the court recognized that a child has rights depending on when it was considered a life, but it explicitly punted that, saying it was not an issue that they wanted to discuss.
I’ll confess that I took a class in international law and the primary focus of the class was how similar issues were dealt with in different countries and probably the most time was spent reading various abortion laws and court cases around the world. So, maybe I have some confusion in there on what was said in the US cases. I’ve not looked at the court cases in a long time.