What follows is a minor revision of an essay first written last December and subjected to minor changes a few days later. Given the precarious state of abortion rights, I am re-posting it in the hope of reaching a wider, more engaged audience. I am doing so with additional revisions intended to clarify certain points and to better reflect current circumstances.
Reading through my blog, I find that I have addressed abortion rights often. In the essay below, I may revisit ideas presented earlier, but my goal is to treat reproductive freedom more comprehensively than I have in the past. The right of women to control their own reproductive lives is being seriously challenged. It is critical that those of us who believe that women have an inherent human right to make decisions about their bodies without interference from government or individuals collect rhetorical tools that may be useful in the struggle for women’s freedom. Ultimately, however, it is not rhetoric alone that will prevent women from becoming permanent second-class citizens, but the ballot box.
Although my blog promises “quick takes,” this particular post is unusually long. Therefore, I am providing a table of contents for those who may wish to read it selectively:
Introduction
The Case for Unrestricted Access to Abortion
Objections to Abortion
Supreme Court Actions
Additional Considerations
The Fraught Future
Abortion has been practiced for millennia. It has sometimes been controversial, though not always. Contemporary debate about the procedure seldom proceeds from first principles. Yet exploring the roots of arguments on both sides of the abortion debate allows us to test those arguments for consistency and reasonableness, and it helps us sharpen our own thoughts. This gives us tools to counter the foundations of opposing views, whether or not those foundations are acknowledged.
Political Context
Legal scholars generally agree that the Constitution does not offer unambiguous guidance as to the propriety of statutory restrictions on abortions. In Roe v. Wade (1973), the Supreme Court declared that women have a constitutional right to have an abortion. The court based its decision on a right to privacy that itself is inferred from the due process provisions of the Fifth and Fourteenth Amendments to the Constitution. That right has been invoked to justify other rights, such as the general use of contraceptives and same-sex marriage.
Conservatives believe that Roe was wrongly decided. Not even all liberals are happy with the details of the decision. Justice Ruth Bader Ginsburg, for example, argued that Roe should have been based on equal protection. Nevertheless, Roe has been the law of the land for nearly half a century. (Roe was weakened but not overturned in Planned Parenthood v. Casey (1992). It was actually this later case that introduced the viability criterion discussed below.)
There is a strong strain of individualism in the United States, the notion that the government should not interfere in one’s personal affairs. This sense of personal freedom is usually framed as the ability of the individual to act as he or she sees fit, as long as no one else is harmed thereby. This formulation is not precisely codified in law, though it provides an informal guide to legislation. Nevertheless, the appearance of “LIBERTY” on U.S. coins has real meaning. The decision in Roe is consistent with this American ethos. Alas, people who are so jealous of their own freedom are not above trying to restrict that of others based on their own beliefs. This is the case with supporters of abortion restrictions who suffer no actual harm from the abortions of fellow citizens.
Most opponents of abortion rights, when pressed, offer a religion-based argument for their position. Few would argue, in public at least, that men should control women’s reproductive lives or that women who face an unintended pregnancy deserve to suffer the inevitable consequences. Many may well hold those views privately.
There is nothing wrong with advancing religious rationale in support of public policy. In the secular nation that is the United States, however, religious arguments have no privileged status. They are only useful for convincing others that are susceptible to them and who vote for like-minded legislators, lobby legislators, or, as legislators themselves, can vote based on their religious views. When our Republic is working properly—arguably, it is not doing so very well at the moment—religious views do not beget sympathetic legislation except when they are widely held and are not in conflict with the Constitution.
Opposition to legal abortion is largely a minority religion-based view held, and held passionately, by a minority of citizens. Proponents of change are always more passionate in their beliefs than those who accept the status quo. That passion is intensified when undergirded by self-righteousness born of religious certainty. It is ironic that support for legal abortion is a majority position in the population at large but a minority position within the legislative class. (Explaining this phenomenon is beyond the scope of this essay.) Supporters of abortion rights have not had the zeal of their opponents.
The status quo at the moment is that women, anywhere in the United States, have, at least in theory, a constitutional right to obtain an abortion until the time when the fetus is “viable.” (Later abortions are obtainable under certain conditions and in certain jurisdictions.) Viability is understood as the point at which the fetus could survive outside the womb, generally considered to be about 24 weeks into the pregnancy. The Supreme Court has, in recent years, permitted states to make it increasingly difficult for women to exercise their theoretical right to an abortion. Cases currently before or likely to come before the Supreme Court, with its Trump-nominated Republican justices, may provide the opportunity for the court to jettison the viability standard or even to extinguish the constitutional right to abortion.
The case to be made for unrestricted access to abortion services is straightforward. Procreation is an intensely personal enterprise. By virtue of a right to privacy implied in the Constitution, the equal protection clause of the Fourteenth Amendment, and the reservation of unenumerated rights to the people declared in the seldom-cited Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”), one would expect that a woman should have an absolute right to terminate a pregnancy. Why should not the removal of a fetus be any different from the removal of, say, a prostate?
Although abortion opponents readily cite the Tenth Amendment, which reserves undelegated powers to the states, they neglect to observe that those powers “are reserved to the States respectively, or to the people” (emphasis added).
In fact, the right to bodily integrity is widely acknowledged as a human right—the U.N. Universal Declaration of Human Rights proclaims: “Everyone has the right to life, liberty[,] and security of person.” Such a right is seemingly embedded in the Fourth Amendment (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated … .”) Unfortunately, the United States has a mixed record with regard to protecting the bodily integrity of its citizens. Drug laws and prohibitions against euthanasia, for example, seek to limit the freedom to control what one does with one’s body. Any law limiting the right to abortion is of that nature.
Sociological reasons for the universal availability of abortion are legion. Unintended pregnancies create personal, psychological, and financial difficulties. The pregnant woman may be too young and immature to handle motherhood or may find herself in circumstances in which having a child would be an impossible burden. She may be trying to complete her education or may simply have too many children already. (Many married women with children seek abortions.) She may be unable to support a child financially. She may have medical conditions that make pregnancy dangerous or even life-threatening. She may be carrying a damaged fetus likely to be severely handicapped or to die before birth. Her relationship with the father may be dysfunctional or violent. Or the pregnancy may be the product of rape or incest. To deny an abortion to a person in any of these circumstances is cruel and insensitive. If a woman is not allowed to make the decision to have an abortion based on whatever rationale she thinks compelling, then she does not enjoy the freedom that so many abortion opponents profess to value.
Opponents of abortion access are often judgmental and unable to appreciate the problems an unintended pregnancy causes or to empathize with the seeker after an abortion. They accuse women who want an abortion of using the procedure as birth control or of being careless about contraceptive use. But obtaining an abortion, even in the best of circumstances, is neither pleasant nor cheap; abortion is surely not a rational form of birth control. Fault-finding regarding an unwelcome pregnancy is unhelpful; the pregnancy itself demands to be dealt with. No birth control method save sterilization or celibacy is 100% effective. Even the married and conscientious get pregnant.
Abortion performed by a physician or through the use of medications is very safe, considerably safer than carrying a pregnancy to term, which was not necessarily the case when abortion restrictions were first imposed in the nineteenth century. Sadly, postpartum deaths and deaths resulting directly from childbirth are higher in the United States than in other developed and many underdeveloped countries. That abortion poses less risk to the patient than childbirth argues for choosing it if carrying a pregnancy to term is undesirable or risky.
Finally, it should be said that supporting unrestricted access to abortion services does not suggest that an abortion, in and of itself, is a good thing. In a perfect world, every pregnancy would be welcomed and would result in the birth of a beautiful, perfect baby delivered into the bosom of a loving family. We do not live in that world. Abortions are needed to make our imperfect world less imperfect.
Those who support restrictions on abortions make four kinds of arguments. (Their true beliefs may differ from what they say in public.) First is the argument that the fetus, embryo, or even the fertilized egg is a human being. (Before reproduction was better understood, people believed that sperm contained actual, complete, yet minute, humans.) This is the absolutist argument. Second, anti-abortion advocates unwilling to insist that the tiniest collections of cells are human beings are quite willing to assert a need to protect the “unborn” at some point post-conception. A currently popular marker is the emergence of a “fetal heartbeat.” A more generous version of this position identifies viability as the point at which the growing fetus demands protection. The third argument is that abortions must be restricted to somehow advance a public policy objective such as protecting the mother. Finally, some argue that, for various reasons, abortions are simply unnecessary. Underlying most of these arguments is the belief that the pregnant person carries a distinct and separate person worthy of and in need of protection.
Let me address these arguments in turn.
The contention that a baby is sacrosanct beginning as a fertilized egg is almost always the view of right-wing Christians, who see a baby as a gift from God not to be rejected. This argument ignores the part people play in creating a pregnancy. Moreover, if a baby is God-given, are not cancerous tumors, hurricanes, and earthquakes also dispensations of God? Are we expected to accept these “gifts” meekly and without attempts to mitigate their effects? Neither the Old nor the New Testament has anything substantive to say about abortion. Jews acknowledge personhood only when a baby exits the birth canal. Jesus was mute on the matter. In fact, the “Christian” case against abortion, which is seldom challenged, is weak.
It is clarifying to consider analogues of the embryo. When a chicken lays an egg, we don’t call it a chicken. Likewise, an embryo is not really a human being. It is human tissue, but so are fingernails, hair, or blood. We can also consider the ontogeny of the embryo. Although it has the potential to become a complex animal, it is less advanced than a mouse or a dragonfly.
The prohibition of abortion originates in Roman Catholic theology, specifically in Pope Paul VI’s 1968 encyclical Humanae Vitae, the product of celibate men devised more or less out of whole cloth. And clearly, any argument involving the acquiring of a soul is a minority religious concept inappropriate as a basis of secular law. (When does the product of a pregnancy obtain a soul? What happens when an ensouled fetus dies in the womb? How many angels can dance on the head of a pin?)
The most radical anti-abortion proponents want the product of a pregnancy, from the point of fertilization onward, to be declared a “person,” with the same rights as other natural persons. Accepting this notion presents myriad practical and legal problems, which I will consider below.
Next are the arguments that draw a line somewhere before which abortion is proper and after which it is generally not. This is a difficult line to draw. The “fetal heartbeat” criterion is problematic. When such a “heartbeat” is detectable, at about six weeks, there is no fully formed heart—a complex organ—and, at six weeks, medicine does not even recognize the product of a pregnancy as a “fetus.” (It is still considered an embryo.) Even if there is a somehow meaningful “heartbeat,” we must ask what of it. A brain-dead adult can have a functioning heart yet still be, for all practical purposes, dead and useful only for organ harvesting. One’s heart doesn’t make one human. Neither does a liver or a kidney. Not even a brain makes one human; the aforementioned mouse has a brain. One might argue that an operative prefrontal cortex makes a fetus human, but its development is too late in gestation to satisfy anti-abortion partisans. Besides, babies born with serious brain defects are still considered human.
The Supreme Court has identified viability as the point at which we should draw the line after which abortion can, in most cases, be prohibited. Certainly, a viability criterion is more easily justified than say, the misnamed fetal heartbeat one. It is assumed that, at about 24 weeks, the fetus could, in principle, survive outside the womb and grow to become an actual person. This is a criterion that rests both on fetal development and current medical technology. Although someday we may have artificial wombs that allow a days-old embryo to grow into a baby, the 24-week viability criterion isn’t going to change much any time soon. I will have more to say about the viability test below. I believe that this dividing line, too, is flawed.
Next, consider arguments that restricting abortions somehow protects women or advances some other public good. These arguments are mostly ill-informed or insincere. The idea that prohibiting abortion access somehow “protects” women is, at best, paternalistic and infantilizing. It is sometimes argued, for example, that women who have had abortions experience depression, from which they must be protected. Actually, elation is a more likely psychological response, as an abortion can prevent the derailing of a woman’s personal or work life. According to the Guttmacher Institute, one in four women will have had an abortion by the age of 45, but there is no empirical evidence of widespread female depression resulting from those abortions. Postpartum depression, on the other hand, is common. Yet Republican lawmakers are fond of saying that restrictions on abortion are in the interest of women without explaining exactly in what respect that is true. But having an abortion entails less risk than carrying a pregnancy to term. True, women can make poor choices, but isn’t the right to make choices, whether wise or foolish, what freedom is all about? Even men make poor choices regarding their bodies, and they do so largely without governmental interference.
What, in fact, is the interest of the state in preventing abortions? Is there an urgent need to increase the population? If so, the task could be accomplished sooner by increasing immigration. Do people want to ensure that the genes of men are propagated into the gene pool? That seems unlikely. The women most often prevented from having abortions are poor and black. Do the authors of anti-abortion legislation want to increase the population of black babies? (It is absurd to think so, and they would be astounded and repulsed by the suggestion.) Do they want to grow the number of children with devastating abnormalities by preventing the early abortion of nature’s mistakes? Enquiring minds want to know.
Others argue, improbably, that abortions are really unnecessary. They say, for instance, that decades ago, abortions helped women escape the restrictions of wife, mother, and housewife and assume a liberated position in the workplace outside the home. Women have now achieved parity with men and no longer require the crutch of abortion. This argument is every bit as absurd as it sounds. Almost any woman can explain how she has failed to achieve equality with men either at home or in the workplace. Access to abortion surely assisted the liberation of women such as it is, but it is still needed for all the reasons it has always been needed.
An even more outrageous argument that abortions are unnecessary was advanced by Supreme Court Justice Amy Coney Barrett in the December 1 oral arguments before the court in the case of Dobbs v. Jackson Women’s Health Organization. Justice Barrett suggested that safe harbor laws make abortions unnecessary. Such laws allow a newborn to be surrendered at some specified public place (a fire station or hospital, for example) without penalty and without incurring any future responsibility for the child. In her view, a pregnancy can be carried to term, after which it will magically be as though it never happened. Apparently, Justice Barrett does not live in the same world as the rest of us. Pregnancy involves many inconveniences and dangers, which is why someone might want to terminate one in the first place. Moreover, giving up a child for adoption, even when done willingly and with advanced planning, is often psychologically damaging to both mother and child. Justice Barrett seems insensitive to the very real consequences of her proposal. Unfortunately, her status as a mother of both natural-born and adopted children may encourage people to accept her perverted logic.
All those who want to outlaw abortion speak in terms of a mother and her baby. “Baby” may not be a medically proper designation, but it is convenient terminology for illustrating an important concept. Prohibiting abortion of the baby forces one person to make a sacrifice for the benefit of another. This is an alien legal concept in U.S. law. No one is required to come to the aid of another unless that person is in a special occupation for which giving aid is a requirement. A firefighter, for example, is required to attempt to rescue someone from a burning building, an obligation that has been freely assumed. A bystander has no such obligation. In fact, forcing a woman to become or remain pregnant appears to be a crime against nature and, in some circumstances, a war crime under the Geneva Convention.
The Supreme Court adopted the viability dividing line as a compromise between those who would ban all abortions and those who would allow all abortions. The advantage of viability to the court was that it is a more-or-less definite criterion and the point at which, in some sense, the fetus could become an actual, functioning human being. Arguably, 24 weeks gives the mother ample time to choose to have an abortion, at least in most cases. But not in all cases. Fatal fetal abnormalities could be discovered beyond the 24-week cutoff or circumstances could prevent obtaining an abortion before viability.
From another point of view, viability is an illusory deadline. Although a 24-week-old fetus might be able to survive outside the womb, it is unlikely to be healthy or to enjoy anything like a normal life. More importantly, the viability criterion assumes a fetus removed from the mother. A pregnant woman desiring a post-viability abortion isn’t going to let anyone remove her fetus to prove viability in fact. If we have to have a cutoff point for most abortions, viability has its merits, but it isn’t quite what it seems to be.
In Roe in 1973, the Supreme Court articulated a constitutional right to an abortion. In Casey in 1992, the court affirmed that right but allowed states to regulate abortions so long as they did not create an “undue burden” on those seeking the procedure. State legislatures eagerly availed themselves of the opening provided by the court, having discovered that the prohibition of creating an undue burden for women was hardly an undue burden for them. They invented waiting periods, mandatory presentation of anti-abortion propaganda, parental-permission requirements for underage girls, and extraneous requirements for clinic architecture and clinic doctors. And they put restrictions on reasons for seeking abortions.
The various gratuitous regulations invented by Republican legislatures have resulted in the closure of many clinics, usually depriving women not only of abortion services but of other gynecological services as well. Women seeking abortions have faced long trips to faraway clinics as the number of clinics dwindled, and they often had to spend two or more days away from home. Not all the legislative attempts to make getting an abortion burdensome have survived court challenges, but, over the years, the right to obtain an abortion has become less and less substantive.
The addition of three Supreme Court justices nominated by President Donald Trump further emboldened Republican legislatures. Abortion opponents saw a high court newly stacked with sympathetic justices. Mississippi not only passed a law prohibiting abortions after 15 weeks but also invited the justices to overrule Roe and Casey. Texas has gone further, with its 6-week cutoff, vigilante enforcement, and prohibition of medicinal abortions. Court-watchers expect that the Mississippi and Texas laws are likely to be deemed lawful by the court and the nationwide right to an abortion will be extinguished.
Supreme Court decisions that have limited individual rights are prominent on lists of the worst ever decisions of the court. Think Dred Scott v. Sanford, Plessy v. Ferguson, and Korematsu v. United States, among others. Never has the court affirmed a significant right only to repudiate it decades later. We are likely to see the court in its current term add to the list of its worst decisions should it overturn Roe, as many will expect it will.
Restrictions on abortions have placed a special burden on poor and minority women. Not only have state legislatures placed barriers to their exercising their supposed right, but the federal government has been prevented from paying for abortions under Medicaid. Middle- and upper-class women have always had the option of traveling to wherever necessary to obtain abortions. Not everyone is equal in their access to abortion services because of their economic status.
It is tragic that anti-abortion activists and legislators have shown such sympathy for what they have called the “unborn,” yet show hardly any empathy for already-born women facing difficult life choices. They revel in a “fetal heartbeat” while seeming indifferent to the fact that the pregnant woman has a heartbeat, too.
It is appalling that so many Americans are willing to require women to carry to term unwanted children and children resulting from rape or incest. A friend of mine who was an RN in pre-Roe days told me of a 14-year-old who had been impregnated by her father. She wrote, “After a traumatic birth she ended up in a psych unit.” There are thousands of such pre-Roe stories, many of which have endings even less happy. What is the point of creating such tragedies? Is not requiring that all pregnancies be carried to term a kind of slavery, in which the state commandeers unwilling citizens, endangering and upending their lives to achieve some ill-conceived public service? A woman is more than her uterus, and recruiting her uterus against her will is an unspeakable evil. Adult males can control their own bodies; should not adult females have the same right? Isn’t this what the Fourteenth Amendment is all about? It is ironic that many countries, even those with largely Roman Catholic citizens, are liberalizing access to abortion at a time when the United States is doing the opposite.
Speaking of the Fourteenth Amendment, it is significant that that amendment begins as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
“Unborn children” are, by the definition of citizenship in the amendment, not citizens at all. Even calling them “persons” would not make them citizens. They have no free will to act in the world, which is characteristic of actual persons. Efforts to make the products of pregnancy “persons” are nonsensical and have the potential to cause all sorts of legal mischief. Some such mischief is already apparent, as women have been prosecuted for “killing” a fetus by virtue of having had a normal miscarriage. It has often been argued in such cases that maternal behavior, such as drug use, caused the miscarriage. The extreme of declaring a fetus a person has the potential to make every miscarriage into a search for the method by which a mother “murdered her baby.” This would convert ordinary misfortunes into personal catastrophes. Of course, the ultimate motivation behind the movement to make the “unborn child” a person is to make abortions—all abortions—instances of “murder.”
As noted earlier, the entire anti-abortion movement rests upon the notion that the product of a pregnancy is a human being. This is not a logically necessary view. It is equally logical to regard an embryo or fetus as a part of a woman’s body and therefore not subject to state regulation. It is interior to her body and is nourished by it. Some have even seen a fetus as a kind of parasite, and I’m sure that reluctantly pregnant women might well view it as such. In either case, its disposition should be within the woman’s power to determine.
Declaring that fertilization creates a human being is risible and can only be justified by specific religious arguments. It is a concept held by a minority of a minority. Procreation is not an event but a process, of which fertilization is only a part, though surely a vital part.
Arguably, access to abortion has always been a human right. The Supreme Court that once declared it a constitutional right has allowed that right to become less and less reified. If the justices use the vehicle of Dobbs to declare that Roe was decided in error, that there is no such constitutional right, states will be able to regulate abortion as they see fit. If the court reverses Roe, abortion will instantly become illegal in many states due to their legislatures having passed so-call trigger laws. The scope of women’s health care will immediately be diminished.
Of course, the court may simply chip away at the right to abortion a little more, jettisoning the viability standard and replacing it with a 15-week standard or some other more slippery demarcation. Unless the Supreme Court simply declares the Mississippi law unconstitutional, an exceedingly unlikely outcome, women will be the losers.
The Republican- and Roman Catholic-dominated court actually has some incentive not to throw Roe overboard. A decision will come this summer or, less likely, somewhat earlier. Eliminating a constitutional right that women have enjoyed for nearly half a century is certain to have electoral consequences in the 2022 midterm elections. Abortion will become a more prominent campaign issue, perhaps even of paramount concern in the upcoming elections. What Republicans have seen as an opportunity to take back the House of Representatives, and perhaps even the Senate, could become a Democratic landslide. Some observers, however, do not believe that the backlash will be that significant.
Unfortunately, the right-wing justices seem indifferent to both their obligations to the law and to society at large. Republican-appointed justices repeatedly assert that their judicial opinions are not “political,” despite all indications to the contrary. The Catholic-dominated court has repeatedly chipped away at the traditional separation of church and state, elevating the freedoms of religious people above all other Constitution-protected freedoms. The court refused to stay Texas’s law SB 8 which is clearly unconstitutional until the court declares otherwise, ignoring both normal legal procedure and any social consequences of their inaction. And, of course, the court includes a justice clearly willing to do the bidding of the former president and who has a wife who played a significant role in subverting the peaceful transfer of presidential power.
The justices must consider whether eviscerating a well-established constitutional right will deal a grave blow to the already diminished reputation of the Supreme Court. After all, the court’s opinions are the law of the land because the people consider them to be such. But messing with Roe could diminish public acceptance of the court. Justice Sonia Sotomayor, in the oral arguments in Dobbs mentioned earlier, asked pointedly if the court could survive the “stench” that such a move would create “in the public perception that the Constitution and its reading are just political acts.”
Denying the existence of a right to privacy on which Roe was decided endangers other decisions of the Supreme Court over the years that have expanded sexual freedom: contraceptive use, same-sex activity and marriage, and the ability to marry outside one’s race. How much “settled law” is this court willing to un-settle should they overturn Roe?
Whatever the Supreme Court decides in Dobbs or possibly a case involving Texas’s SB 8, believers in women’s autonomy must step up their efforts to protect women and to send the message that religious extremists cannot be allowed to control this country. If access to abortion ceases to be recognized as a constitutional right, Congress, through legislation, can make it a statutory right throughout the country. If women do not have access to abortions everywhere, then only some women have control over their own bodies.
It is time for people to vote out of office legislators at both the state and federal levels that are clearly out of touch with the will of the people. Ultimately, we may need a constitutional amendment to protect the right to an abortion. In a rational nation, the choice to have an abortion should be made by the woman affected with the advice of her doctor, a clergyperson, or other trusted advisors. We should trust women and physicians to make reasonable decisions, not decisions constrained by statutes that cannot countenance all the factors relevant to such a life-changing (and often life-saving) choice.
Our country is not free if women are not free.
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