Saturday, December 06, 2008

Abortion -- the unmentionable word

Four years ago, soon after I started this blog, I went through a phase studying abortion. My personal view is that abortion is a morally reprehensible procedure which may in extraordinary circumstances by at best a "necessary evil" but in virtually all cases morally wrong. Having said that, the next question is whether laws can or should mandate moral behavior. That is another matter, and that is where the quesion becomes inflammatory.

After much reflection I came to the conclusion that legality and morality are two separate issues. Many behaviors are legal but immoral (gambling, drinking to excess, hurtful verbal abuse stopping short of libel, enabling a substance abuser, licensed prostitution.). Other behaviors can be morally compelling but illegal. Shielding a minor from abuse without a court's permission, refusal to pay war taxes, hiding an undocumented alien whose life or safety might be in danger if found, and now, post-Roe, withholding abortion from a pregnant woman.

The years following the Roe decision have not clarified the discussion or moved states to consensus about how best to deal with the abortion issue. Sometime over the next four years we can expect legislation to be introduced at the federal level intended to codify the Roe decision once and for all, officially declaring abortion to be a federal right of any prregnant woman but only until the fetus legally becomes a baby. That as yet to be legally defined moment is referred to as "viability." In other words, if the fetus cannot stay alive outside the womb it is by definition not viable. Generally speaking that means any time prior to the third trimester.

Before I go on, I want to repeat what I said at the start of this post: in my personal belief, ALL abortion is morally reprehensible. But this is not a discussion of what I or any other committed Christian believes. This is a discussion of the realities of what is now ALREADY LEGAL and what restrictions, if any, are likely to be placed on that procedure.

Most arguments derive from the most disagreeable of all procedures, commonly called "late-term." When third trimester abortions are considered separately from abortions performed in the first two trimesters, the discussion moves, whether or not extremes of either side approve, from law to theology.

At the moment, pro-life people hold that ALL abortions are immoral (and should also be illegal). In some cases that prohibition is pushed all the way to the "moment of conception," ruling out the use of morning after birth-control methods. Pro-choice views, on the other hand, refuse to yeld an inch away from late-term abortions, fearing that even an inch from that extreme positon will become a slippery slope back to the days of complete prohibition.

What follows is a collection of blog posts, most three or four years old, that I'm collecting in one place for easy reference. They represent many hours of thinking and research on my part. Readers are invited to have at them for whatever value they now have to the debate that will soon be in the public square.

You will note, with this first snip from the Roe decision, that the court originally aimed at justifying abortions, not at the end of the pregnancy, nor even after the second trimester, but after the FIRST trimester. Those accusing the Supreme Court of too much judicial activism need to read carefull what follows and remember that "judicial activism" can only occur in the absence of LEGISLATIVE activism. It is the rold of the judiciary to interpret the law in accordance with the Constitution. But when the law is unclear, inconsistent or altogether missing, the court has no recourse but to make whatever ruling seems closest to past and current trends.


With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact...that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health....With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother....To summarize and repeat:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

This is the language of the original Roe v Wade decision as written by Mr. Justice Blackmun in 1972.
It is clear that since that time the trend more abortions has accelerated. As all previous state laws against abortions were struck down by this decision, the language of the original decision also said the states did have an interest in protecting unborn babies after the end of the first trimester, called "viability." The word could very well have become a legal and compelling equivalent to the old word "quickening", used in common law for centuries to make a distinction between an unborn baby that had the potential for life, as opposed to one not yet "alive." Unfortunately not a single politician seems to have been successful in transforming this permission into a meaningful statute at least not enough to stop a wildfire of late-term abortions.

In the meantime, well-meaning people who would like to put an end to abortion altogether, have reverted to the extreme position which precipitated the Roe decision in the beginning. To criminalize abortion is to pee into the ocean. It will be an empty gesture, mainly symbolic. There has to be a better way to turn the tide.


Deborah said...

Sounds right to me...I think. would need to study the meaning of (b) a bit more. Basically, I believe a woman's right to freely choose an abortion should definitely extend to the end of the first trimester. Viability is different now than it was 30 years ago, so that would need to be more precisely defined. Viability is far different for an unborn child than for someone seriously disabled and on life support systems. One is at the beginning of life, and one may be at the end.

Hoots said...

What needs to be examined and codified now is the interest of the state. This wording makes coy reference to "the State, in promoting its interest in the health of the mother" but fails to mention the State's interest in the health of its unborn citizen. Such language was irrelevant at the time it was written, but is now germaine to the discussion.
It is important to recognize that discussions about law are NOT, except as coincidence, discussions regarding morality.
[My personal firms belief is that abortion is immoralin practically ALL cases, including during the first trimester. It is typically applied as an obscene, sinful birth control remedy. That application of abortion is in my opinion clearly immoral. It is, however as legal as getting drunk, sexual promiscuity, shacking up without benefit of matrimony. In the case of abortion I am willing to allow that breach of morality in return for a more vigorous attempt on the part of the State to protect the life of that unborn child. After the first trimester the State should be able to protect the interests of a future citizen.]