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A compromise on abortion?

A Compromise on Abortion?

"Can we compromise about abortion?" I am asked. The backdrop for this question is the strong possibility that Roe v. Wade ultimately will be either overturned or substantially restricted. My temptation is to answer simply "No, but we (persons who are pro-choice) may well have to." But because the nature of any future compromise will so dramatically affect women--or certain classes of women--it is worth seriously considering why the abortion issue remains so intractable, what aspects of Roe v. Wade are most vulnerable, and whether compromise is possible. After all, unless Roe is strongly affirmed, state legislatures will become an even more fertile forum for these controversies than they are already.

Roe's Vulnerability

The major reason Roe is a decision vulnerable to review is simply that abortion remains such a hotly contested issue. Most persons in our society favor at least some access to abortion. But those who oppose all abortions except to save the mother's life--and perhaps to end pregnancies resulting from rape or incest--are an extraordinarily vocal minority. They are also a minority with strong moral arguments on their side. The case that a fetus is a human being from the moment of conception can readily seem stronger, and more consistent, than the extreme pro-choice argument that it has no standing prior to birth, or the more widely held moderate view that its moral standing somehow accrues or increases during the course of the pregnancy. Whenever my generally liberal, pro-choice law students consider the abortion issue solely from the perspective of evaluating the fetus's moral status, they reluctantly conclude that the pro-life side wins. The pro-choice position is a more morally complex one that argues, not that abortion is a good or positive thing, but that it is the lesser of two evils: that forcing a woman to continue her pregnancy is worse than letting her end it.

Roe's legal vulnerability, however, goes beyond the obvious fact that abortion remains a morally troubling and politically divisive issue. The Supreme Court could not, of course, have simply held that it is better, as a social policy, to allow abortions than to forbid them. Rather, to invalidate restrictive state laws, it had to find that there was a constitutional right to choose to abort. It did so by accepting the pro-choice focus on the woman's bodily integrity and on her autonomy in making highly personal decisions, concluding that the constitutional right to privacy encompassed the right to terminate a pregnancy. This holding raised several constitutional questions: "Where in the Constitution does it say there's a right to privacy?" and "What makes the Court so sure the right to privacy encompasses ending fetal life?"

The first question has occasioned enormous debate among constitutional scholars. Although numerous decisions had upheld individual liberty in one sphere or another, it was the 1965 decision in Griswold v. Connecticut,[1] invalidating a law criminalizing the provision of contraceptives even to married couples, that first explicitly articulated a constitutional right to privacy. The various opinions in Griswold differed as to precisely where this right was found. Justice Douglas located the right in the penumbras that emanate from various amendments, such as the rights to freedom of association and freedom from unreasonable searches and seizures, while a concurring opinion placed greater stress on the fact that the Ninth Amendment specifies that the enumeration of certain rights in the Constitution does not mean that individual rights are limited to those so enumerated. Because the right upheld in Roe was so very controversial--certainly on a far different plane from the sale of contraceptives--it its inspired enhanced scrutiny of all aspects of the decision, including the existence and/or derivation of a right to privacy. But because Roe is ultimately no more vulnerable on this score than any of the host of right-to-privacy decisions, this aspect of its vulnerability can be put aside for now.

Far more pressing is the question whether, even assuming there is a constitutional right to privacy, it should extend to encompass the abortion right. Despite enthusiastic predictions by liberal scholars, recognizing a constitutional right to privacy has not served to constitutionalize John Stuart Mill's principle that the state can legitimately make criminal only that conduct which harms others. Were Mill's principle constitutionalized, laws against bigamy, polygamy, incest (between consenting adults), and recreational drug use would have to be invalidated unless harm to others could be shown. This clearly has not occurred. Indeed, while many Supreme Court decisions suggest that it is the privacy of the individual and the integrity of individual choice that is being protected, others imply that only certain choices--those historically approved and protected, or those sufficiently connected to marriage and family--warrant constitutional protection.[2]

This still leaves, of course, the original question of why a woman's choice to abort should be permitted, since abortion harms the fetus by defeating any interest it has in its future, independent life. Many advocates of choice have argued that a fetus doesn't have such an interest, or at least doesn't have it in the same way that independent persons do, because a fetus is not a person--or at least is not one until some late stage of pregnancy. Some are now trying to make this argument in a more scientific form, suggesting that the fetus is not a person until the neocortical structure necessary for consciousness is intact, and that such a standard--"brain birth"--is analogous to brain death at the other end of life.[3] But ever since Judith Jarvis Thomson's groundbreaking article in 1971,[4] advocates of choice have not felt that the abortion right stood or fell on the "personhood" of the fetus. Rather, one can accept (at least for the sake of argument) fetal personhood, yet support abortion on the grounds that continuing a pregnancy imposes significant physical and psychological burdens on a woman of a nature not imposed by society on any other potential "Good Samaritan." Thus, unless a woman has affirmatively taken on an obligation to the fetus (by, say, intentionally continuing a pregnancy for a substantial period of time), she should not be forced to undertake this "risky rescue." A strong argument has been made that an additional, or alternative, grounding for the holding in Roe could be equal protection--that denying a right to abort imposes affirmative Samaritan-type duties on women that are not imposed on anyone else in any analogous situations.[5]

Even if one accepts that there should be some right to abortion, a third vulnerability of Roe lies in the precise way the Court accomplished the compromise between the state's interest in fetal life and the woman's interests in privacy and autonomy. The Court held that because mortality rates from abortions in the first trimester were lower than from childbirth, the state could not legitimately regulate on any grounds. After approximately week twelve, when (in 1973) mortality rates from abortion were higher than from continuing the pregnancy, the state could regulate in the interests of the woman's health. Once the fetus was viable, that is, able to survive outside the womb, albeit with artificial aid, the state's interest in its life became compelling, and it could forbid abortion, unless needed to preserve the woman's life or health. The question here, of course, is how valid are the lines the Court drew and the justifications it gave.

One of the greatest difficulties for anyone who takes a moderate approach to abortion, by which I mean one that would allow elective abortions for some time during pregnancy but not up until birth, is establishing when that cut-off should be. This is, of course, because pregnancy is a gradual, continuing process, and it is terribly hard to draw firm, defensible lines in such a continuum. Yet all countries that allow abortions do just that. This line-drawing is never easy, but it is much easier for countries in which the line is being drawn legislatively, because the legislature need not claim that the division chosen is the best or most logically justifiable division, merely that it is a reasonable choice--one that's in the ballpark, so to speak. The dividing line can be treated like the fifty-five (or 65) mile per hour speed limit: not logically justified as the only possible line to draw, but roughly within the range of speeds that allows for a sensible accommodation of efficiency and safety.

The Supreme Court, however, is not in general supposed to act as a legislature, drawing lines that are justifiable only in that they are within a range that sensibly accommodates competing interests. It is hard to deny that in setting up the trimester framework, the Court acted somewhat legislatively. Yet it had no choice once it opted to recognize an abortion right: a line had to be drawn somewhere. It opted to draw the line at fetal viability. This was a perfectly reasonable line. In 1973 viability occurred at approximately the end of the second trimester, and this allowed a woman substantial time to decide whether she wanted to continue or terminate her pregnancy. It also allowed for a convenient tripartite division of pregnancy, given the Court's maternal health-based division between the first and second trimesters. Yet if the second trimester/third trimester division was to mark the point at which state interests in the life of the fetus might legitimately allow prohibition of abortion, the viability line seemed to need stronger justification than the first trimester/second trimester division. The Court was disturbingly succinct in asserting that the viability line had the necessary justification: it simply held that because viability marked the time after which the fetus could live on its own, the dividing line at viability has "logical and biological" justification.

Justification for the first trimester/second trimester dividing line has not held up well, in that once legalized, the safety of abortion in general, including second trimester abortion, improved substantially. Hence a later case, Akron v. Akron Center for Reproductive Health,[6] raised the question whether, now that abortion was safer than childbirth through at least week sixteen. But despite changes in medical facts, the Court retained the division at approximately week twelve. It thus chose to retain the first trimester/second trimester dividing line while recognizing that its asserted justification in Roe was no longer valid.

It is one thing to have a medical justification for the first trimester/second trimester division that does not hold. The line drawn at viability, after which states can prohibit abortions entirely (unless necessary to protect the woman's life or health), is the crucial one. The harder question, though, is whether viability as such can carry the moral weight assigned to it.

Justice O'Connor argues that it cannot. She has criticized Roe as having a foundation that is insubstantial and crumbling. The trimester system, she charges, is on a collision course with itself. She has pointed not only to the increasing safety of abortion, which undercuts the first trimester/second trimester division, but also to the changing time of fetal viability, which means that the second trimester is shrinking. This charge, however, overstates the advances in neonatology: the threshold of viability has moved only a bit earlier in time. It is still the case that no babies born before week twenty-three, and almost none born before week twenty-four, survive. Yet Justice O'Connor's criticism does point to a more subtle vulnerability in Roe, which is simply that the Court engaged in "over-justification" of its chosen dividing line by claiming biological and logical significance for it.

Statements about fetal viability are basically statements about medical technology at a particular time and in a particular location. A fetus that was not viable in 1973 may be viable today. A fetus that is not viable in a country with primitive medical technology may be viable in a sophisticated neonatal intensive care unit in the United States. Thus it is not so clear that viability has any real biological significance--though it may if, as many physicians and scientists believe, there is simply an absolute, unalterable time before which fetal organ systems are too immature to be sustained in anything but a womb.

What about viability's logical significance, though? All the Roe court said was that at viability the fetus could potentially survive outside the woman's womb. This, of course, is merely the definition of viability. Some scholars have suggested that there's no reason a fetus's newfound capacity to live independently should prevent the woman from requiring it to do so.[7] Indeed, one could argue that the pre-viable fetus should have the greater claim on the woman, because its life depends on her, whereas a viable fetus can be removed and still survive. Of course, the realities of the harm currently caused by premature delivery argue against this.

Viability is certainly not without significance: a post-viability abortion may result in a live birth, and the infant so born may be significantly damaged. This alone is a good reason to limit abortions to the time before viability. This significance is, however, imminently practical rather than logical. Post-viability abortions could be performed by a method that would certainly cause death, thus eliminating the live birth possibility as a reason for a cut-off at viability. If medical developments caused the threshold of viability to shift much earlier, a fetus could be viable at the time during which it is safer for the woman to perform the abortion in a predictably feticidal manner, such as dilatation and evacuation.

Although some would disagree,[8] the state interest in fetal life seems important enough that some time limits can be placed on the right to abort. Fetal viability was an eminently sensible dividing line for the Court to have chosen. In 1973--and still today--viability occurred late enough in pregnancy that it was a good marker for the time after which abortion seemed highly morally problematic. And abortion after viability is largely unnecessary: 90 percent of abortions take place during the first trimester; 99 percent before week 20.[9]

But the problems with claiming a higher level of justification for viability than it warrants remain. One problem is that Roe seems to suggest that even if medical technology changed dramatically and fetuses were viable quite early in gestation, viability would have to remain the dividing line. If it has "logical and biological" significance, it probably would. But if, as I have argued,[10] it essentially just marks off "late gestation" it need not. Just as the Court retained the first trimester/second trimester dividing line even when the medical data changed, it could retain a line somewhere between twenty and twenty-four weeks' gestation even if the threshold of viability somehow shifted earlier, on the grounds that the significance of viability was primarily in demarcating late gestation.

Another problem raised by the Court's inflated claims for its dividing line is that as the somewhat arbitrary nature of viability has been increasingly recognized--a development helped along significantly by release of Justice Douglas's papers in which an early Blackmun memorandum described it as "arbitrary"[11]--this has added fuel to the claim that Roe itself is arbitrary and unjustified. But these claims are not connected. If some right to abortion is justified, and if some limits can permissibly be placed on the extent of this right (which foes of abortion would surely grant), then the Court had to draw a line somewhere. Given that fetal development is a continuum, no one, no matter how brilliant or analytically inclined, could draw a line in that continuum that has logical and biological significance. The best anyone could do is draw a line that is within a justifiable range. What this range is is a matter of public policy--policy that should take into account the medical, social, and economic status of the women who seek relatively late abortion, the medical constraints surrounding diagnosis of fetal defects (if these are not to be treated separately), and so on. But if the abortion right was to be meaningful, the Court had to set some time limits. Roe would have been of little worth to women seeking reproductive freedom had it held there was an abortion right, but allowed states to restrict abortions to the first six weeks of pregnancy. The Court simply should not have suggested that the line it drew was necessary, inevitable, or logically justified.

Compromises and Their Effects

Because the viability line is one of the most vulnerable aspects of Roe, and one that even defenders of the decision often find hard to justify, it is an area ripe for revision, either now or in the future. Hence it is worthwhile exploring what might happen if the time frame for abortions is altered.

For most women, it won't matter. As noted previously, most abortions occur very early in pregnancy. It is certainly psychologically easier on the woman to have an abortion before her pregnancy is obvious to those around her, before she feels the fetus kick, etc. It is likewise less troubling for physicians to perform early abortions than later ones. Inasmuch as 90 percent of abortions in the United States occur by week twelve, it might not seem at all worth worrying about whether the cut-off is viability (approximately week twenty-four), or week twenty, or week eighteen. Pro-life groups will not, after all, be satisfied by a compromise that affects only one percent of abortions.

However, I don't think pro-choice groups should be too willing to compromise on time limits, because of the special nature of the situations where late abortions are needed. One of these, of course, involves severe fetal abnormalities. In the United States, of the 0.9 percent of abortions performed after week twenty, 99 percent are performed by the twenty-fourth week,[12] many of which are performed for fetal abnormalities. Essentially, the only defect for which abortion will be performed after week twenty-four is anencephaly. Abortion should be permissible at any time for this defect, because the anencephalic fetus, or infant, is never viable.

Although anencephaly may be virtually in a class by itself, there are many other defects so severe that it seems especially harsh to refuse an abortion, even an abnormally late one. Trisomy 13, Trisomy 18, and Tay-Sachs disease, for example, all cause profound retardation, a host of physical problems, and usually (with Tay-Sachs, always) an early and painful death. Prior to Roe, many of the states that were liberalizing their abortion laws allowed abortion under certain exceptional circumstances, and diagnosis of fetal abnormalities was one of them. This exception was not linked to any particular time in pregnancy. Thus Roe actually resulted in more restrictive treatment of these abortions, though in 1973, when the threshold of viability was later, almost all could fit readily within it. But as the threshold of viability has shifted somewhat earlier, its significance for abortions for fetal defects has increased, because amniocentesis results are often not available until around week twenty. Slippage of a few weeks, or a slight misestimation of the length of pregnancy, can result in a diagnosis too late for an abortion. I believe that given the severity of many such defects, the emotional trauma associated with carrying such a child to term, and the pain the child will experience, it is already unfortunate that exceptions could not be made for post-viability diagnoses of such abnormalities. But at the least, if abortion time limits are further circumscribed, the ability to have an abortion for a severe fetal defect should not be.

The other group that would be affected by restricting late abortions is, of course, teenagers. Teenagers are among those least capable of being mothers, and most likely to experience adverse health effects from pregnancy. According to the figures for 1981, 10.8 percent of abortions for girls aged fourteen or younger were performed at seventeen weeks or later in contrast to only around 2 percent for women between ages twenty-five and thirty-nine.

There is also a strong correlation between poverty and late abortions.[13] Countries with less poverty, better sex education among teenagers and hence fewer teenage pregnancies, and ready access to medical care can probably do well with earlier abortion limits (Sweden's, for example, is week eighteen).[14] But the effect of restricting late abortions, given current socioeconomic conditions in the United States, will be to impose pregnancy upon those least able to cope with it, and render young girls more likely to become young single mothers, who thereby remain trapped in the cycle of poverty. Thus we would do well to recognize that a few late abortions will inevitably occur, and not to accept readily a compromise on time limits, even though most middle class women would not be affected at all.

Many of the restrictions favored by opponents of choice would be as likely to increase the number of late abortions by promoting delay, as they would actually to diminish the number of abortions. Mandatory waiting periods quite obviously lead to delays, as do hospitalization requirements. With parental notification requirements, and even with alternative means such as a judicial authorization, some teenagers will be deterred from abortion entirely, while others will simply go through the procedural requirements and have the abortion much later. Or they will somehow get the money to travel to a state with more liberal requirements.

In New York state in 1983, for example, 30 percent of abortions performed on nonresidents were second trimester procedures, many of which were obtained by women who could not find second trimester services in their home communities.[15] As Walter Dellinger puts it, "If there is anything approaching a settled consensus on abortion in this country, it is that abortion becomes more morally problematic as the microscopic fertilized ovum of early pregnancy grows larger and more fully developed."[16] If late abortions are indeed more morally problematic than earlier ones, then abortion restrictions that make some groups of women wind up having later abortions are surely likewise problematic.

The other reason for late abortions, of course, is physical threat to the woman herself late in pregnancy. As an exception this is unproblematic; even many opponents of choice allow abortion if the woman faces a substantial threat to her health from continuing her pregnancy. But opponents of choice sometimes overlook what lies behind the recognition of this exception--the fact that any pregnancy can threaten any woman's health at any time. Abortions for serious health problems that have materialized in the third trimester are merely one instance of this. Throughout pregnancy and delivery, women may suffer from a host of physical problems that may or may not be reversible. They include: hemorrhage; severe and even fatal circulatory disorders; hypertension, with its many associated problems; anemia; urinary tract infections; renal failure; and exacerbation of existing conditions such as diabetes, epilepsy, multiple sclerosis, ulcerative colitis, and mental disorders. Some of these problems will be temporary and may be relieved by a third trimester pregnancy termination (which will probably simply be an early induced delivery rather than an abortion in the sense of being intended to result in a dead fetus). But others will cause permanent damage--damage that will not be alleviated by termination of pregnancy.

The point is simply to remind ourselves that any additional restrictions on abortion will adversely affect some women's health; we just won't know which women until the problem arises. We can predict, though, that teenagers denied abortions are more likely to be adversely affected. Teenagers are 92 percent more likely to have anemia and 15 percent more likely to have toxemia during pregnancy than are older women.[17] Moreover, since teenagers are less likely to receive early prenatal care, health problems are more likely to be diagnosed later in pregnancy. It is not enough to say that once severe problems arise the patient can have an abortion. Rather, we should try to retain liberal time limits on abortion, so that teenagers who don't want to be pregnant, but who deny their condition well into the second trimester, can have elective abortions. This will help prevent the sad scenario of young girls who don't want to be pregnant in the first place being denied an elective abortion and risking severe, and possibly even lasting, health problems from continuing their pregnancies.

The Right Sort of Compromise

There is one way in which advocates and opponents of choice can, if not exactly compromise, at least work toward a similar goal. This is to decrease the number of abortions by improving contraceptive education and use. Both groups should actively support birth control and education measures likely to reduce the number of unwanted pregnancies. We need a national campaign to convince people that unless they are married or otherwise in a long-term monogamous relationship and seeking to have a child, they should use condoms. Of course, the most effective means of birth control for those women who can use it--the pill--is at the same time completely ineffective in guarding against AIDS and other sexually transmitted diseases. Given the expanding number of hazards from sex, the ideal would be protection against all of them. It's probably unrealistic to think that sexually active young people are suddenly going to begin using both condoms and birth control pills, especially simultaneously. But condoms, if used appropriately, are relatively good protection against all the undesired consequences of sex, and it is imperative that additional time, money, and effort go into making contraception and "safer sex" techniques available and acceptable to everyone.

A closely related sort of proposal is, unfortunately, one that opponents of choice will likely oppose. This is to help ensure that those abortions that do occur are performed as early in pregnancy as possible. The best way to do this is not by restrictions that make abortions more costly and difficult to obtain. It is precisely the opposite. Abortions will be obtained earlier in a society that fosters procreative choice. Pro-choice groups should, and do, find working for early abortions important, not only because many persons find them morally less problematic than later ones, but also because it is better for the woman's health and state of mind to terminate an unwanted pregnancy as soon as possible. Were opponents of choice to adopt a "lesser of the evils" approach, they would at least question the advisability of restrictions whose effect may well be to eliminate some abortions, but to make many others simply occur later than they otherwise would.

As each year passes, abortion becomes more and more a settled part of our legal landscape. Either now or in the future, the Supreme Court might modify Roe to allow states to pass laws that will make poor women, teenagers, and other disenfranchised women unable to obtain abortions. But it is undoubtedly too late for even the most radical restructuring of Roe to make abortion itself go away. It's time for both advocates and opponents of choice to begin working together to make abortion as safe, early, and rare as possible. References [1]381 U.S. 479 (1965). [2]Most notable in this latter category is Bowers v. Hardwick (106 S. Ct. 2841 [1986]), holding that the constitutional right to privacy yields no right to participate in homosexual sodomy. But this decision may be less relevant than it first appears. See Lawrence Tribe, American Constitutional Law (Westbury, NY: Foundation Press, 1988), 2d ed., 1430, who argues that the case was not decided on principled grounds and thus poses a lesser threat to other privacy precedents than we might expect. [3]See Julius Korein, "Reality and the Brain: The Beginnings and Endings of the Human Being," in The Reality Club, John Brockman, ed. (New York: Lynx Books, 1988), 73-105. [4]Judith Jarvis Thomson, "A Defense of Abortion," Philosophy and Public Affairs 1:1 (1971), 47-66. [5]See Don Regan, "Rewriting Roe v. Wade," Michigan Law Review 77 (1979), 1569-1646. [6]462 U.S. 416 (1983). [7]See Norman Fost, David Chudwin, and Daniel Wikler, "The Limited Moral Significance of Fetal Viability," Hastings Center Report 10:6 (1980), 10-13. [8]See Nan D. Hunter, "Time Limits on Abortion," in Reproductive Laws for the 1990s, Sherill Cohen and Nadine Taub, eds. (Clifton, NJ: Humana Press 1989), 129. [9]Christopher Tietze and Stanley Henshaw, Induced Abortion: A World Review, 6th ed. (Washington, DC: The Alan Guttmacher Institute, 1986), 77. [10]See Nancy Rhoden, "Trimesters and Technology: Revamping Roe v. Wade," Yale Law Journal 95 (1986), 639-97. [11]"Abortion CutoffPicked Arbitrary," Raleigh News and Observer, 22 January 1989, 4A. [12]Tietze and Henshaw, Induced Abortion, 77. [13]Tietze and Henshaw, Induced Abortion, 80. [14]Tietze and Henshaw, Induced Abortion, 20. [15]Tietze and Henshaw, Induced Abortion, 81. [16]Walter Dellinger, "Day in Court," The New Republic, 8 May 1989, 11. [17]Hunter, "Time Limits," 129, 134. Nancy K. Rhoden is a professor of law at the University of North Carolina, Chapel Hill.
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Author:Rhoden, Nancy K.
Publication:The Hastings Center Report
Date:Jul 1, 1989
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