Finding a middle ground on abortion
Time to make everyone angry (and hopefully some good trouble)
The Supreme Court made it official on June 24, 2022: It does not have the power to legislate from the bench. The “authority to regulate abortion is returned to the people and their elected representatives.”
I actually read the entire decision, including the dissent, and it’s not as simple as people on either side say. Both the opinion and the dissent make assumptions that will do little to ease the volatility of the abortion arguments between the far right (which seems to call for banning all abortions with few exceptions) and the far left (which seems to promote abortion for any reason up until natural delivery). Assumptions of the opinion included a long discourse about the history of both legislative and common laws in the US. It examines the flaws in Roe (flaws that have been discussed for decades) and explains why the “viability line” of the Casey decision was scientifically and ethically wrong. Assumptions from the dissent include calling on worst-case scenarios of fetal maldevelopment and the possibility that “perhaps…a state law will criminalize the woman’s conduct, too…for daring to seek or obtain an abortion.” Much of the Dissent includes “may” or “might” attached to their fears. In fact, most of the Dissent seems to assume the ruling does far more than remanding abortion laws to the states.
Only Justice Roberts seemed to look for some middle ground, saying that the original case from Mississippi was not about Roe or Casey, but about the 15-week limit for legal abortions in that state. He wrote, “I would decide the question we granted review to answer — whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.” The Dissent’s response to what might have served as a middle ground, “no one should think that there is not a large difference between upholding a 15-week ban on the grounds he does and allowing States to prohibit abortion from the time of conception.” All-or-nothing from both the Opinion and the Dissent.
It is the unwillingness of either side to compromise even a little that is so frustrating for most Americans. There is an inability to even consider the arguments from any perspective other than their own. The Court Opinion focused on the “potential life” of a human fetus. The Dissent never mentioned the fetus, but wrote only of the rights of women “to participate fully and equally in the Nation’s political, social, and economic life.” The Dissent goes on to say, “Countless women will now make different decisions about careers, education, relationships, and whether to try to become pregnant than they would have when Roe served as a backstop.” The Opinion rebutted, “Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.” Neither statement is helpful, even though both may be factual.
What makes this case all the more interesting is Mississippi’s Gestational Age Act allows for unrestricted abortion up to 15 weeks and after that for medical emergency or severe fetal abnormality. The Dissent notes that the US is aligning more closely with Europe in abortion legislation, but the Mississippi law is actually more liberal than most of Europe, where 12 weeks is the most common limit to abortion on request. So the question is now, how do we move forward as a country? Are we forever engaged in a battle of extremes wherein favorable views of both parties are in decline? Pew Research found that 60% of adults believe the Republican party is too extreme and 57% believe the Democrats are — a statistical stalemate.
We need to carefully define abortion. The CDC defines abortion as “ an intervention performed by a licensed clinician (e.g., a physician, nurse-midwife, nurse practitioner, physician assistant) within the limits of state regulations, that is intended to terminate a suspected or known ongoing intrauterine pregnancy and that does not result in a live birth. Britannica defines abortion as “the expulsion of a fetus from the uterus before it has reached the stage of viability (in human beings, usually about the 20th week of gestation.)” Interesting that the editors of the Encyclopedia Britannica considered abortion limited to viability even though the abortion industry (and it is a for-profit industry) has no such limitation. The trimester rule was undone by Planned Parenthood v Casey (1992) in favor of viability, which at the time was about 28 weeks. Viability is currently 23–24 weeks if the mother has access to high-quality medical care. There are children born as early as 22 weeks who have grown up healthy, including Amillia Taylor of Miami, born at 21 weeks 6 days. One result of the Dobbs decision was to throw out the viability measure because, as science improves, viability is possible earlier and earlier.
Most states and reporting areas that collect abortion data report whether the abortion was medical or surgical. Medical abortions use drugs to stop the heartbeat and cause the uterus to contract, thus expelling the fetus. Surgical abortions are medical procedures to clear the uterus and often require general anesthesia for the woman. The definitions given are constrained to the procedure, not the persons involved. It is not a philosophical or ethical statement. However, the medical procedure documented as abortion (e.g. spontaneous abortion) does not encompass common usage of the term. Miscarriage care falls under this “abortion” definition as a medical procedure, but women who suffer miscarriages do not consider themselves to have aborted their babies. Ectopic pregnancies always result in the death of the fetus, and if not medically treated, the mother is also likely to die. These are not part of the common definition of abortion. The common definition of abortion, summed up by Keith Simon is, “the intentional taking of a life, the destruction of an embryo in order to terminate life.” I might add, abortion is the intentional destruction of an embryo or fetus at any stage of gestation for the sole purpose of ending a pregnancy.
For the record, I hate abortion. I believe life is a gift from God and that a human embryo is just as much a human being as a one-year-old, a 20-year-old, and a 90-year-old. Having said that, I understand why many women feel they have no alternative but to abort for a myriad of reasons. The Guttmacher Institute found that 96.5% of abortions are for social and economic reasons. I think many of those can be avoided with better access to health care, contraception, education, job training, child care, and frankly, paternity requirements of financial support. Licensed Pregnancy Counseling Centers around the US already provide more services than many people know, including ultrasounds, prenatal vitamins, maternity/infant clothing, car seats, counseling, mentoring, and classes in parenting, life skills, and finances, depending on the clinic. I also think what Guttmacher calls the “hard cases,” amounting to less than 6.5% of all abortions should not be criminalized. These include the life/physical health of the mother, the mental health of the mother, fetal defects incompatible with life, and rape/incest (which only accounts for .39% of abortions.)
The vast majority of abortions happen within the first 12 weeks of pregnancy. It seems reasonable then, to use common practice as a starting point for finding some kind of legal middle ground. Ethically and morally people will always have their strongly held opinions, but in a pluralistic country such as the US, what is perceived as moral and what is legal is not always the same. Grace recognizes the needs of both women and the unborn, and seeks a way to support both — even when that includes something the believer finds morally abhorrent.
Developmentally, 11 weeks into a pregnancy (or 9 weeks after conception) is the point at which the embryo becomes a fetus. At week 12 (10 weeks after conception) the fetus is recognizable as a human. It has been a human since conception, but it is at this point that all the organs are in place and the second trimester of pregnancy begins. At 16 weeks, the fetus has fingerprints, can blink, and the circulatory system is fully formed. The famous Lennart Nilsson photo of a fetus sucking its thumb was taken at 16 weeks.
No one denies that second-trimester abortions are violent acts. Dilation and Extraction is a two-day process that is largely regarded as safe for the woman but is still a surgical procedure usually under general anesthesia. For a description of the procedure see this article by NPR , this website, or the statement by AAPLOG. There is evidence that the fetus can experience pain as early as the second trimester and even Justice Ginsburg called the procedure “brutal.” The Dobbs argument included the notation that “the intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession” (MS Code § 41–41–191 2019).
Based on what we know about fetal development and the procedure required for an abortion after the first trimester it seems a reasonable middle ground might be to adopt the abortion policies of much of Europe, both in time and restrictions. Germany restricts abortion after 12 weeks and requires counseling three days before the procedure intended to inform the woman that the unborn human has a right to life. Abortions are not covered by public health insurance for most women. Italy also sets the limit to 12 weeks and requires a one-week reflection period and a signed request for termination by both the woman and the doctor. The Netherlands’ gestational limit is 13 weeks and requires a five-day waiting period. Sweden’s limit is 18 weeks, but between 12 and 18 weeks the woman must have a conversation with a social worker. The UK allows abortions up to 24 weeks, but two registered medical personnel must certify that medical grounds (life of the mother, health, detriment to economic or social position) are met and the procedure must be done in a hospital or other approved medical facility.
Alito wrote, “Abortion presents a profound moral question.” It pits the value of the life of a pregnant woman against the value of unborn humans. There is no easy solution, and both sides make compelling arguments. By adopting legislation that allows for abortion on request to 12 weeks, the self-interest of the woman can be upheld. By removing the stigma of medically necessary procedures for miscarriage and ectopic pregnancy and disconnecting the terminology from the abortion argument, we offer a modicum of peace and humanity to those mothers. By restricting abortion to medical necessity (life/health of the mother, fetal conditions incompatible with life, ectopic pregnancy, and miscarriage care) after the second trimester, the rights of the unborn are protected.
References
2019 Mississippi Code Title 41 — Public Health Chapter 41 — Surgical or Medical Procedures; Consents Gestational Age Act § 410410191
American Association of Pro-Life Obstetricians and Gynecologists (n.d.) AAPLOG Statement on Dismemberment Abortion Bans
Cheryl Bird (2022, March 17) World’s smallest and youngest preemies; Cases of survival of extremely premature infants. VeryWell Family.
Philip Bump (2022). Americans now see both parties as too extreme. The Washington Post
“Argumentative Penguin” (2022) The Supreme Court Set Fire To Abortion Rights. What now? Medium
European Abortion Laws A Comparative Overview (n.d.) Center for Reproductive Rights
Europe’s Abortion Rules (2007) BBC
Human Life International (2021) Why Women Abort
Mayo Clinic (2022) Fetal Development week by week.
Patrick Miller and Keith Simon (2022) FAQs on the overturning of Roe v. Wade. [Podcast] Truth Over Tribe
Lennart Nilsson (2020) A Child is Born 5th edition
Supreme Court of the United States (2022, June 24). Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization et al.
What are the abortion time limits in EU Countries? (2022) Right to Life.
Marelize Wilke (2017) “We could see her lungs through her skin” — the premature baby who defied all odds. Health 24.
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