Abortion: The Moral Wrong We Must Not Ban

Abortion is a monstrous problem.

Monstrous both because of the divisions it makes and the lives it may take.

Monstrous because it pits two bitterly opposed camps against each other, in a seemingly ever-escalating war, in which both sides are largely right about the goals and principles they hold most dear.

The pro-life camp wants all abortion to end, as it argues that any abortion is the intentional ending of a human life.

The pro-choice camp wants all women to be able to make their own decisions about their own bodies.

You may have already noticed that these two mission statements, bold and broad as they are, are not in automatic conflict. And yet, conflict we have—perhaps the bitterest on this issue that we have yet seen in this country.

The pro-life camp has decided to focus its energy and efforts on abortion bans, whether explicit prohibitions that necessitate the overturning of Roe v. Wade, or implicit ones that skirt around its edges.[i] Some pro-life politicians, even Presidential candidates, increasingly dismiss exceptions for pregnancies caused by rape and incest.[ii]

In the face of that legislative onslaught, the pro-choice camp has responded with its own rhetorical one: abortion on demand, without apology.[iii] Some pro-choice commentators have begun touting abortion as a positive social good without any potential downsides.[iv] The “safe, legal, and rare” mantra of the Clinton Presidency era has all but vanished from the scene.[v]

In other words, both camps seem to be doing everything in their power to horrify and disgust each other.

Meanwhile, the abortions continue.

As each side marches away from common ground and towards far extremes, each step takes them farther away from the truth: that the moral case against abortion is far stronger than most abortion rights supporters might like to admit, and that the case for legal abortion is far stronger than most abortion opponents might like to admit.

The science does not give either side all of the news it wants to hear.

The absolutist moral case against abortion—that a human life begins at fertilization—has an elegant and powerful simplicity to it. We were all once fertilized embryos, and it was at fertilization that we became new, whole, unique organisms with the same basic genetic make-up that we possess today. And yet, the absolutist case is not without significant flaws. That same fertilized embryo could yet split into two to produce twins.[vi] Did a person just die and two more take up residence? A huge number—as many as 80%—of all embryos die when they are just days old, before they can even be implanted in the uterus. As one commentator has asked, “Is Heaven Populated Chiefly by the Souls of Embryos?”[vii] Maybe. Perhaps scientific advancements will make future generations look back at this early age of human existence and lament the loss of so many human persons to routine embryo death the same way that we now look back at most of human history and lament the loss of so many human persons to high rates of infant mortality. But combined with the splitting potential, there is at least room for serious doubt that, in the moment after fertilization, a member of the human family has been created.

That doubt fades quickly as the embryo grows. More than 90% of abortions in America occur in the first trimester.[viii] But a lot happens in those twelve weeks to make the title of human person seem more and more accurate. The embryo is still miniscule at five weeks, but the heart has begun to beat. By week twelve—when the embryo has become a fetus—arms, legs, and eyes have appeared, key vital organs have begun to function, and the fetus has begun to move and even hiccup.[ix]

Is that enough? Maybe. Killing such an organism is at the very least deeply disconcerting.

In the weeks and months that follow, the doubt dissipates to a vanishing point. At week 19, the fetus can hear sounds outside the womb. At week 23, the fetus may be able to survive outside the womb. At week 28, he or she (the fetus’s sex, set at fertilization, can be determined because the genitals are intact) almost certainly can.[x]

From a moral and biological standpoint, nothing magical happens at birth. The day before birth, the baby is a baby.

There are two possible moral conclusions that are consistent with the scientific facts. The first, adopted by the utilitarian philosopher Peter Singer, is that even infants are not fully human and thus infanticide should be legal.[xi] I will let that speak for itself. The second is that the fetus became a human individual at some unknown, possibly distant, time earlier in the process and thus abortion at almost any stage constitutes something approaching a dangerous moral gamble.

So when pro-choice advocates focus all their emphasis on the many social and economic benefits that women—and the society around them—gain from the freedom to choose when to reproduce, they are both completely correct and completely ignoring the torturous moral question that is driving the debate: what if, when that choice comes via abortion rather than contraception, those benefits are built upon millions of dead human persons?

The main moral concern is that the organism might be a human being. If so, then the fact that killing him or her may give another person a better life is at a minimum a truly gut-wrenching decision. A moral belief system that tries to pretend that that decision is not fraught with moral peril seems almost predicated on the millennia-old notion of the stoics that fetuses were a form of plant life until the moment of birth.[xii] It cannot be rationally sustained. Peter Singer waits down that path.

The pro-life camp is right, then, that, morally, the best that abortion can be is a terrifying question mark. And yet, abortion is an evil without villains. Moral exhortations to choose life may be correct, but don’t cut much when offered in isolation and when a woman is already working two jobs to feed three kids and can’t picture a secure future for a fourth.

And where the pro-life movement fastens blinders to itself is in thinking that this moral answer morally necessitates a blanket abortion ban.

From a legal and policy standpoint, something magical does happen at birth: the community, if needed, can step in to protect the life of the baby without violating bodily autonomy and without precipitating the resurgence of dead and wounded women in our hospitals because of self-help and back-alley abortions.

It is disappointing that the banner pro-life event of the year, the annual March for Life in Washington, D.C., takes place on the anniversary of Roe. Roe is not the anniversary of the beginning of abortions in America. Whatever one may think of its legal merits, Roe is the anniversary of the end of women dying in abortions in America.

Before Roe, abortions were still pervasive in the United States. For decades, hundreds of thousands of fetuses were aborted every year. Added to this toll over the years were the thousands of women who died in dangerous abortions.[xiii] Illegality makes things dangerous. It does not matter if the women are given a free pass and only doctors prosecuted, as some pro-life advocates have called for.[xiv] The prosecution of doctors means that most competent doctors flee the field. Without competent doctors to perform abortions, women turn to the only ones left: the incompetent and the unlicensed. Crack down harder and deter even those and women will turn to dangerous self-help. The bottom line: ban all abortion and women will die.

Around the world today, tens of thousands of women die each year from unsafe abortions. Those deaths would drop drastically and rapidly if abortion were made legal, and they have done so in countries that have done so.[xv]

A small price to pay for the lives of the saved unborn, the hardline pro-life camp might argue? To which I would respond, what saved unborn?

Economic security, not abortion prohibition, is the best predictor of low abortion rates. Cultural and moral norms, and access to and education about effective birth control, also play large roles. But it is not at all clear that laws do. In the Philippines, for example, abortion is comprehensively banned. Despite this, the country has a per capita abortion rate far higher than ours (c.27 vs. c.13).[xvi] What do they have that we don’t, courtesy of their anti-abortion laws? Every year, tens of thousands of hospitalizations of women from botched abortions, and hundreds of deaths.[xvii] Same basic story in Central America. And South America. And much of Africa.[xviii]

Western Europe, which generally has abortion on demand in the first trimester? The lowest abortion rates in the world. Same basic story in Northern Europe and South Africa.[xix]

This is not to say that liberal abortion laws always come in tandem with low abortion rates—Eastern Europe has some of the most liberal laws and highest rates.[xx] But it is to say that the strict laws that will guarantee the death and hospitalization of thousands of women are patently unnecessary to reduce abortion. Given that reality, to ban all abortion is, in practice, to choose death over life.

The pro-life policy path forward is to continue to expand the reach of affordable contraception to all through access and education. The biggest benefit that this approach has over prohibition: it works. Colorado tried an intensive four-year pilot program to give out free or reduced-cost long-term contraceptives. Abortions dropped 35%. Infuriatingly, Republican lawmakers cut the program’s funding.[xxi] Still, the overall increased use of similar long-term contraceptive methods is bringing unplanned pregnancies down, and abortions along with them.[xxii] The Affordable Care Act has been a big part of this push, which makes the Republican Party’s and Catholic Church’s vocal opposition to the law’s contraception provisions, from an anti-abortion standpoint, positively mind-boggling (says this Catholic).[xxiii]

Opponents of legal abortion will likely retort that laws by their very nature carry moral weight and can seem to endorse whatever activity they allow. There is certainly some truth to this. Which makes it all the more important that, even as abortion necessarily stays legal, society both extends the social safety net and sends a moral message: this is legal, but we don’t like this, and we wish you wouldn’t do it. Please don’t. There are alternatives.

And go further. Don’t hold the March for Life at the Supreme Court. Hold it at adoption centers and foster homes across the country. Demonstrate with action that every child will have a welcome place, even if the mother cannot care for him or her. Volunteer time. Pledge to be a foster parent. Pledge to adopt. Pledge to support those who do. Kindness and service. When the last abortion clinic closes in America, it will be because no one showed up.

So long as we remain locked in bitter ideological conflict over abortion prohibition, there will be no progress towards the worthy goals that each side seeks.

Only reproductive justice and moral resolve will end abortion in America.

[i] See, Seth Stephens-Davidowitz, The Return of the D.I.Y. Abortion, N.Y. Times, http://www.nytimes.com/2016/03/06/opinion/sunday/the-return-of-the-diy-abortion.html (Mar. 5, 2016).

[ii] Paul Waldman, On abortion, the GOP presidential candidates are even more extreme than their constituents, N.Y. Times, https://www.washingtonpost.com/blogs/plum-line/wp/2015/10/26/on-abortion-the-gop-presidential-candidates-are-even-more-extreme-than-their-constituents/ (Oct. 26, 2015).

[iii] Jessica Valenti, Free Abortions on Demand Without Apology, The Nation, http://www.thenation.com/article/free-abortions-demand-without-apology/ (Aug. 27, 2013).

[iv] See, e.g., Valerie Tarico, I am pro-abortion, not just pro-choice: 10 reasons why we must support the procedure and the choice, Salon, http://www.salon.com/2015/04/24/i_am_pro_abortion_not_just_pro_choice_10_reasons_why_we_must_support_the_procedure_and_the_choice/ (Apr. 24, 2015); Mary Elizabeth Williams, So what if abortion ends life?, Salon, http://www.salon.com/2013/01/23/so_what_if_abortion_ends_life/ (Jan. 23, 2013).

[v] See, e.g., Keep Abortion Safe and Legal? Yes. Make it Rare? Not the Point., RH Reality Check, http://rhrealitycheck.org/article/2010/04/26/safe-legal-rare-another-perspective/ (Apr. 26, 2010).

[vi] See When Does Human Life Begin?, http://science.jburroughs.org/mbahe/BioEthics/Articles/Whendoeshumanlifebegin.pdf.

[vii] Ronald Bailey, Is Heaven Populated Chiefly by the Souls of Embryos?, Reason.com, https://reason.com/archives/2004/12/22/is-heaven-populated-chiefly-by (Dec. 22, 2004).

[viii] Karen Pazol et al., Abortion Surveillance, CDC, http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6108a1.htm (Nov. 23, 2012).

[ix] Baby Center, Fetal Development Timeline, http://www.babycenter.com/0_fetal-development-timeline_10357636.bc.

[x] Id.

[xi] Peter Singer, Taking Life: Humans, http://www.utilitarian.net/singer/by/1993—-.htm. Sadly, he is not alone: Alberto Giubilini and Francesca Minerva, After-birth abortion: why should the baby live?, http://jme.bmj.com/content/early/2012/03/01/medethics-2011-100411.full (Feb. 23, 2012).

[xii] See, e.g., Ilaria Ramelli and David Konstan, Hierocles the Stoic: Elements of Ethics, Fragments and Excerpts, 38, https://books.google.com/books?id=OozRulWw37kC&pg=PA38&dq=stoics+fetal+plant+life&hl=en&sa=X&ved=0ahUKEwil8JG8mNHLAhXGdT4KHft0DIUQ6AEIHDAA#v=onepage&q=stoics%20fetal%20plant%20life&f=false (2009).

[xiii] See Rachel Benson Gold, Lessons from Before Roe: Will Past be Prologue?, Guttmacher Institute, https://www.guttmacher.org/pubs/tgr/06/1/gr060108.html (March 2003). It should be noted that although the Guttmacher Institute provides independent, peer-reviewed research and analysis, it is also a firmly pro-choice organization.

[xiv] See, e.g., Calvin Freiburger, Should women face time for abortion?, Live Action News, http://liveactionnews.org/should-women-face-prison-time-for-abortion/ (July 9, 2012).

[xv] See, e.g., Elisabeth Rosenthal, Legal or Not, Abortion Rates Compare, N.Y. Times, http://www.nytimes.com/2007/10/12/world/12abortion.html (Oct. 12, 2007); Lisa B. Haddad and Nawal M. Nour, Unsafe Abortion: Unnecessary Maternal Mortality, Reviews in Obstetrics and Gynecology, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2709326/ (2009).

[xvi] Per 1,000 women aged 15-44. Tom Hundley, Southeast Asia: ‘A Certain Medical Procedure’, Pulitzer Center on Crisis Reporting, http://pulitzercenter.org/reporting/asia-philippines-indonesia-abortion-underground-shame (Feb. 12, 2014); CDC, Reproductive Health Data and Statistics, http://www.cdc.gov/reproductivehealth/data_stats/.

[xvii] Guttmacher Institute, Unintended Pregnancy and Unsafe Abortion in the Philippines: context and Consequences, http://www.guttmacher.org/pubs/IB-unintended-pregnancy-philippines.html (July 2013); Center for Reproductive Rights, Forsaken Lives: The Harmful Impact of the Philippine Criminal Abortion Ban, http://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/phil_report_Spreads.pdf (2010).

[xviii] Guttmacher Institute and World Health Organization (WHO), Facts on Induced Abortions Worldwide, http://www.who.int/reproductivehealth/publications/unsafe_abortion/induced_abortion_2012.pdf (Jan. 2012).

[xix] Id.

[xx] Guttmacher and WHO, supra note xviii.

[xxi] Mary Bowerman and Trevor Hughes, Colo. Won’t fund birth-control initiative despite success, USA Today, http://www.usatoday.com/story/news/nation-now/2015/07/07/colorado-iud-long-term-birth-control-success-teen-pregnancy/29818499/ (July 7, 2015). Some opposition stems from the fear that IUDs are actually a form of abortion, not contraception, because they might prevent the implantation of a fertilized embryo. Obstetricians and gynecologists view this as a remote possibility in some cases for some types of IUDs, but they do not know if it has ever actually occurred. See Olga Khazan, Here’s Why Hobby Lobby Thinks IUDs Are Like Abortions, The Atlantic, http://www.theatlantic.com/health/archive/2014/03/heres-why-hobby-lobby-thinks-iuds-are-like-abortions/284382/ (Mar. 12, 2014); The American Congress of Obstetricians and Gynecologists, Facts Are Important: Emergency Contraception (EC) and Intrauterine Devices (IUDs) are Not Abortifacients, http://www.acog.org/-/media/Departments/Government-Relations-and-Outreach/FactsAreImportantEC.pdf?dmc=1&ts=20150127T1149330103 (June 12, 2014); Irving Sivin, IUDs are Contraceptives, Not Abortifacients: A Comment on Research and Belief, Studies in Family Planning, http://www.popcouncil.org/uploads/pdfs/Sivin.pdf (1989).

[xxii] Sarah Kliff, Unplanned pregnancies are at a 30-year low—and IUDs are mostly to thank, Vox, http://www.vox.com/2016/3/2/11148108/unplanned-pregnancy-larc-iud (Mar. 2, 2016); Amelia Thomson-Deveaux, The Abortion Rate Is Falling Because Fewer Women Are Getting Pregnant, FiveThirtyEight, http://fivethirtyeight.com/features/the-abortion-rate-is-falling-because-fewer-women-are-getting-pregnant/ (June 12, 2015).

[xxiii] See, Elizabeth Dias, Why Obama Is Reaching Out to Catholics on Health Care, TIME, http://time.com/3914116/barack-obama-catholics-health/ (June 9, 2015).