Abortion worked its way into this past election, just like it did with every other election for the past few decades. Clinton said she believes in upholding Roe v Wade; Trump still wants to overturn it (but considers the question of marriage equality “settled”). In a series of debates that barely touched on global warming or income equality, abortion, as always, was covered. And the debate, as always, had two sides: that it is a terrible thing that women can’t, strictly speaking, be prevented from doing, and that it is a terrible thing and women must be so prevented.
I like to joke that this kind of framing treats abortion like candy. As though abortion is a temptation for women, some capricious, morally weak-willed act of baby-killing that they sometimes just, you know, give into. Can we really prevent them? After all, we do believe in bodily autonomy. But it really should be discouraged… Perhaps through legislation?
Abortion sounds like candy when it is stripped of medical context. Even some weighty philosophical arguments treat abortion this way. Judith Jarvis Thomson’s article, “A Defense of Abortion,” now de rigeur for introductory ethics courses and bio-ethics textbooks, makes a famous argument by analogy, in which she asks you to imagine waking up to find yourself connected, through various tubes and instruments, to a popular virtuoso violinist, who will die if you disconnect from him. Thomson ultimately concludes — through patient and compelling reasoning — that there is no ethical obligation to remain connected.
Thomson’s framing was a product of the ethical and political debates of the 1970s, in which the front-burner question was whether the fetus is a person, and has rights as such. Thomson assumed for the sake of argument that it was, and furthermore a person capable of making a valued contribution to society.
The problem with Thomson’s approach is also its strength: it strips away all context, and examines abortion as a bare, groundless choice whether or not to let die. This thing that is terrible, which yet we may want to do anyway, which just may be morally permissible. It still treats abortion like candy.
What about that medical context?
Women get pregnant all the time — only half of pregnancies in the US are planned — and miscarry all the time, sometimes without even knowing they’re pregnant. Some quarter of known pregnancies end in miscarriage (also known as “spontaneous abortion”), and those miscarriages are only a fraction of the total that occur. Pregnancies are not rare, but extremely routine things.
Most of those miscarriages are due to some kind of anomaly with the embryo, or perhaps with the uterus, and for that matter they are a good thing. Nature is as routine in deleting a pregnancy as it is in creating one. Some miscarriages, whatever proportion, are undoubtedly due to environmental pollutants, or physical abuse, or something the mother ingests. We don’t track what proportion occur for those reasons. Nor could we. Society doesn’t plead for how special those pregnancies were (much to the chagrin of women who have grieved a miscarriage). They come and go without much notice.
Abortion has happened for centuries — forever, perhaps — without being seen as a moral issue, presumably because there were no real prophylactic forms of birth control. The Bible didn’t bother to comment on it. The Church eventually took a position against termination after quickening (movement of the fetus — between 16 and 25 weeks). Its current stance, that all abortion is wrong because life begins at conception, dates to 1965.
Women still bear the vast majority of the responsibility for birth control in our society, still in 2016, even among young people. The needle has barely moved on that in all of human history. Women are expected to assume all of the responsibility, but accept restrictions on their exercise of that responsibility, with any choice they make seen as capricious. To date, no male hormone-based contraceptives are on the market, although successful developments of them are announced all the time (most recently last month).
More than 91% of abortions are performed before the 13th week of gestation, involving an entity that medicine does not yet refer to as a fetus (“fetus” is a term that applies after 11 weeks of fetal age, or 13 weeks of gestation — prior to that there is an “embryo”). Three-quarters of abortions occur before 9 weeks’ gestation, which is early enough that the pregnancy can be terminated by taking pills and managing heavy, menstruation-like bleeding at home.
About one percent of abortions are performed after 20 weeks of pregnancy. Severe developmental anomalies often cannot be confirmed until after 20 weeks. These anomalies include the fetus missing a sizable part of its brain, its organs residing outside of its chest cavity, or some other disease or condition that prevents it from surviving to term, or surviving outside of the womb for long, if at all, with its life most likely being extremely painful and requiring tremendous medical intervention.
These are wanted pregnancies, virtually all of them — not capricious women killing babies, but women devastated to learn that the baby they wanted, and even named, isn’t viable.
More rarely, abortions involve some kind of sudden and urgent threat to the mother’s life (in which case both she and the baby would die, of course), such as preeclampsia, heart failure, unmanageable diabetes, or an infection.
The third trimester begins at 28 weeks. Of 1.6 million abortions that were performed in the US, 100 were performed in the third trimester, a number so small it is difficult to render as a percentage (it’s one half of one ten thousandth of one percent). (Incidentally, the number of women in the US who die in childbirth is almost four times higher than that, and climbing.)
In short, once you get to anything resembling killing a baby, there is no caprice. There is, however, usually a serious medical issue. And most abortion — which doesn’t have to do with serious medical issues, but with life circumstances — doesn’t resemble baby-killing.
Most people believe something like the following:
We cannot ban abortion, because that seems too restrictive on women’s autonomy — both their bodily autonomy, and their control over their life circumstances. But it seems that, abortion being what it is, we as a society should place some reasonable restrictions on its availability. (Because it is tempting? Like candy?)
The question is, what might those reasonable restrictions be?
Well they can’t be placed on late-term abortions, say after week 20, since those need to be available for the horrible cases where there turns out to be something very wrong with the fetus or a serious danger to the woman’s health. Furthermore, those women don’t want to have to get an abortion, so there’s no sense in which you’re dis-incentivizing them.
How about restrictions early on, before anything is diagnosed as being wrong? Say, after the baby develops a heartbeat, as some legislators have suggested?
An embryo develops a heartbeat extremely early — around 5 or 6 weeks’ gestation. Well before the embryo has a face, it has a heartbeat — an extremely rapid electrical fluttering, nestled in a kidney-like body. At that stage, many women don’t yet know they’re pregnant, especially if their period is irregular. Banning abortion upon detection of a heartbeat takes their choice away — those difficult or non-difficult choices having to do with life circumstances, broken condoms, accidents, drunken mistakes, assault, finances, age — completely.
So now we have to allow abortion after 20 weeks and before 6 weeks, or whatever reasonable amount of time it takes women to discover that they are pregnant.
How about between weeks 6 and 20?
Around week 11 to 13 of pregnancy (after those 91% of abortions have taken place) — and not before — normal prenatal care involves what is called “first-trimester screening,” a combination of a blood test and ultrasound that looks for significant diseases or abnormalities in the baby such as Down’s syndrome, spina bifida, or Tay-Sachs.
Around weeks 16-18, a further test called a “Quad screen” is performed, again looking for birth defects and other, sometimes painful and life-inhibiting, anomalies. Both of these rounds of tests look for diseases different from those detected after 20 weeks using an anatomy scan, as described above.
It seems particularly strange to ban or limit abortion during this 6-20 week window. Side note: My own pre-natal care took place at a hospital in New York that services a lot of the Orthodox community. At every appointment I had, I was asked whether I was Jewish, since there are diseases that are prevalent within that community in particular. I saw Orthodox women at every routine appointment, and the same Orthodox women at the genetics and ultrasound offices. Eventually it occurred to me that they were doing the same testing, looking for the same things, presumably interested in the same options in case some severe anomaly was discovered. I asked a Jewish friend, whose brother is a practicing Hasid, whether abortion was tolerated in the Orthodox community. She demurred.
Is our society’s position that all babies have to be born, regardless of defect? It doesn’t seem that way, but if you take that tack, you may end up getting rid of prenatal testing altogether: already in some states insurance companies don’t cover it because state laws don’t allow abortion after 12 weeks anyway. Women in those states are left to develop a baby with urgent health issues, or even just special needs, without knowing it, and without a way to prepare (such as securing additional health coverage or needed medical equipment, preparing to leave their job, doing research, joining support groups, getting grief counseling, etc.).
Abortion isn’t candy. It isn’t tempting, but necessary. It doesn’t resemble caprice; it resembles medical care.
This is the reality you don’t get from political debates, or even from Thomson. Her argument, sharp as it is, still treats abortion like a sui generis choice, or perhaps: like a purely moral issue (which was, granted, her intention), which requires bracketing of all medical context. Once you bracket that medical context, it’s hard to fathom what we are even talking about anymore.
This brings us back to the question: what are we trying to legislate here? And why?
It’s worth looking at an extreme case. The recent failed abortion bill in Poland – the one that would have completely banned the procedure, even in the case of a threat to maternal or fetal life — carried some fascinating repercussions. It would have prosecuted physicians who operated on or treated fetuses in utero which later died. Therefore, it would have threatened fetal surgical and specialized care. This seems paradoxical, but how else could the law effectively criminalize a doctor’s saving of a maternal life through abortion, unless it stated that any medical intervention that results in the death of a fetus would be prosecuted?
In this we see how the “pro-life” position, carried to its conclusion, refutes itself (or to be fancy about it, dialectically negates itself). It requires refusing to save lives. And that means refusing even to pursue health. The ultimate, most heroic legislative measure to “preserve” unborn life would have potentially put an end to maternal-fetal medicine altogether.
Alright, so scale it back. What if abortion is illegal except in cases where it would be necessary to save the mother’s life? Ireland and other countries have experimented with this (it is the current Polish experiment as well). They have found that, in practice, it leads to contradictory imperatives, as the death of Savita Halappanavar attests. She was a healthy, 31-year-old dentist who was refused an abortion for a fetus that was dying anyway. When she arrived at the hospital complaining of back pain, tests showed she had an elevated white blood cell count, indicating an infection, and the practitioner who examined her made a note in her medical record that the fetus inside her would not survive. But because it had a heartbeat, the case was closed on her request for a termination. Three days after being admitted, shivering and her teeth chattering, she finally delivered her dead daughter. Four days after that, she succumbed to the septic shock induced by having another body die inside her own.
Politics and medicine make strange bedfellows. Impossible bedfellows. No matter how modest the legislative intervention.
Take the case of Canada. In the 1960s, it attempted to go the route of allowing abortions in appropriate and medically necessary circumstances (namely, to preserve the health of the “mother”). Requests for abortions would be handled by a “therapeutic abortion committee.” The committee was to be made up entirely of medical professionals — three doctors — thus seemingly ensuring that the decision whether to “grant” an abortion would at least be medically-based. Except the system was a disaster.
First, hospitals were not required to set up therapeutic abortion committees (TACs), so most simply didn’t, even if they were the only hospital around. Second, TACs often took 6-8 weeks to process an application for an abortion, or they would impose quotas. Third, each TAC would interpret the law differently. The law allowed abortion to preserve the woman’s “health,” a vague term that some TACs interpreted conservatively, others liberally, with the result that some TACs approved very few abortions, while others simply rubber-stamped them all. Fourth, TACs were overwhelmingly male, meaning that men were dictating the fate of women they had never even met. Fifth, the anti-abortion movement started taking over hospital boards, and once in control, they would either disband the TAC, or staff it with anti-choice doctors.
The system was overturned when it was found to be legally unenforceable: one Dr. Henry Morgentaler began performing abortions on demand, no jury would convict him, and the government lost on appeal, with the Supreme Court eventually ruling the abortion law, as written, unconstitutional.
Abortion committees like these still exist, however, for example in Israel. They don’t work there either: half of abortions are summarily approved, and the other half are simply conducted illegally. Thus they neither put the brakes on recourse to the procedure, nor do they introduce some kind of sober moment of ethical reflection.
For that matter, in the United States, where women do have the legal right to choose to have an abortion, without facing a committee, in every state, for no disclosed reason (mere caprice), the specter of restrictive legislation still interferes with medical care, to the point of threatening women’s lives. A harrowing account appeared in Slate in 2011, of a woman admitted to a hospital for a placental abruption that was causing her to hemorrhage.
Everyone knew the pregnancy [20 weeks along] wasn’t viable, that it couldn’t be viable given the amount of blood I was losing, but it still took hours for anyone at the hospital to do anything. The doctor on call didn’t do abortions. At all. Ever. In fact, no one on call that night did…
A very kind nurse risked her job to call a doctor from the Reproductive Health Clinic who was not on call, and asked her to come in to save my life. Fortunately she was home, and got there relatively quickly…
Later I found out that the doctor had taken my husband aside as they brought me into surgery. She promised him she would do her best to save me, but she warned him there was a distinct possibility that she would fail. The doctor who didn’t do abortions was supposed to have contacted her (or someone else who would perform the procedure) immediately. He didn’t. Neither did his students… I don’t know if his objections were religious or not; all I know is that when a bleeding woman was brought to him for treatment he refused to do the only thing that could stop the bleeding. Because he didn’t do abortions. Ever.
What all of these cases show is how any amount of legislative interference, whatever its intention, interferes with medical care — eventually, with deadly consequences. Pragmatically, the attempt to combine legislative paternalism with medical care is simply an abject failure.
But even setting that aside. What is legislation in the arena of abortion meant to accomplish? Is it meant to be pumping the brakes on the undeniable temptation of abortion? Abortion, the easy-way-out that women cannot help but pursue? Is it meant to act as the conscience of a woman deciding what to do about a pregnancy, as though she isn’t already resolute? Or the conscience of the medical professional assisting in treatment?
Why would any legislation (other than that securing safety and access) be necessary — unless we covertly thought of abortion like candy?
 Of course, many abortions occur weeks later than the woman otherwise would have preferred, due to financial, geographic, or legal barriers (parental consent and so on), because of provider scheduling, or because of sheer anxiety.