If you, like me, are sick to death of all the vitriol and divisiveness of the discourse around such topics as immigration and sexual harassment, you may find relief in turning your attention to a noncontroversial subject upon which all Americans agree.  I am speaking, of course, about abortion.

January 22 marked the 45^th anniversary of the Supreme Court’s Roe v Wade decision, in which the Court ruled that the right to privacy under the 14^th Amendment guaranteed women the freedom to choose to terminate within the first six months of pregnancy.  During the third trimester, each state could outlaw abortions except in cases in which the woman’s life or health was at risk.   And thus today’s abortion battle began, with pro-choice and pro-life activists squaring off in a very public debate over what is perhaps the most private and painful decision in an individual woman’s life.

In the grey space between the “life begins at conception” faction and the “keep your rosaries off my ovaries” advocates, the majority of Americans believe that early-term abortion should remain legal but favor restrictions or an outright ban on the procedure after the first trimester.   In drawing this distinction they echo the Court’s majority opinions in Roe and in Planned Parenthood v Casey, a seminal 1992 case in which the Court rejected its previous trimester framework for a “fetal viability” standard, namely that abortion is a matter of balancing two legitimate conflicting interests – a woman’s constitutionally protected right to personal privacy and a state’s right to protect “the potentiality of human life”.

Are you still with me?  To try and simplify matters a bit, it might help to borrow from the ubiquitous “It’s a child, not a choice” pro-life bumper sticker.  Many relatively “silent” Americans (in that they have no pithy t-shirts or picket signs declaiming their views on abortion) believe “It’s a choice until it’s a child” in that they support a woman’s autonomy until such time as the fetus is capable of living outside the womb.  And if you think that’s a tough position to fit on a bumper sticker, try legislating it.

At first glance, I thought New York Times columnist David Brooks’ op-ed “The Abortion Memo” (February 2, 2018) aligned with this moderate position.  Writing as “Imaginary Democratic Consultant” Brooks argues that the Democratic Party leadership is sacrificing other valuable priorities by protecting late-term abortion.   He bases this conclusion on the fact that earlier this month only 3 Democratic Senators voted in favor of the Republican “Pain-Capable Unborn Child Protection Act” bill to federally outlaw abortions past 20 weeks gestation.

Brooks then imagines what would happen if Roe v. Wade were overturned.  Citing a Center for Reproductive Rights study, he predicts abortion would be outlawed in about 21 states and be largely limited to the first trimester in another 9.  He goes on to intimate that such a development would be a net positive.  Sure, millions of women would lose the right to control their reproduction.  But hey, some pro-life voters might return to the Party!

By this point, Brooks sounds less like “Imaginary Democratic Consultant” and more like “Duplicitous Republican Plant”.  While advances in neonatal care allow premature babies to survive at earlier stages of pregnancy, the currently accepted lower limit of fetal viability (defined as the age at which a fetus has a 50% chance of living outside the womb) is still 24 weeks, not 20.  Significantly, scientific consensus holds that 24 weeks is also the very earliest point at which a fetus might be capable of feeling pain.   As for conflating a 20-week ban with the loss of federal protection for abortion, Brooks shows how little he either understands or cares about a woman’s right to control her own reproductive choices.   Which isn’t too surprising, as the greatest price he would ever have to pay when faced with an unwanted pregnancy is court-ordered child support.

The House sponsor of the bill, Trent Franks of Arizona, authored similar failed measures in the past, and said of his most recent efforts, “Protecting these little, helpless, pain-capable unborn children and their mothers… is a basic test of our basic humanity and who we are as a human family”.   And while the 100 or so fetuses that are aborted annually after the 24-week mark may be “pain-capable”, the 2799 children who were killed by guns in 2015 definitely were.  The roughly 1650 children who died of abuse or neglect that same year, the vast majority born to women who were either unable or unwilling to care for them, suffered greatly.   And millions of American citizens under the age of 18 live with the daily trauma of not knowing if their undocumented parents will be taken from them.

What are we as a human family doing to prevent or ease the torment of these born children?  And how does former Congressman Franks, now back in Arizona after being forced to resign for having asked female aides to serve as pregnancy surrogates, and his fellow Republicans score on this “basic test of basic humanity”?

Moreover, isn’t making first-trimester abortions as accessible as possible one of the best ways to limit the number of late-term abortions?  And yet Republicans in state government are largely responsible for the many local laws that limit the availability of services, create complicated and onerous prerequisites for the procedure, and restrict both public and private sources of funding.  All this despite the fact that the Supreme Court expressly forbids any law that places “an undue burden” on a woman seeking an abortion.  Such laws are typically justified as being necessary to safeguard the health of women, but people on both sides of the political aisle recognize their true purpose is limiting abortions by making them as difficult as possible to obtain.  Many second trimester abortions occur only because these laws create barriers that force women, particularly poor women, to delay their abortions.  In a sense, it is the pro-life movement itself that is responsible for many of the abortions performed on fetuses at the cusp of viability.

As for the pro-choice movement, scientific advances have made the moral questions surrounding late terminations more vexing for many supporters of legal abortion.  Women have never had a constitutional right to freedom of choice in later pregnancy.   In the years since Roe v Wade, post-viability abortions have remained exceedingly rare and highly restricted, occurring only in cases in which mother’s life or health is seriously jeopardized or the fetus is suffering from a terrible, usually fatal, abnormality.   The 24-week limit of fetal viability has remained the same for more than a decade, and even while deliveries at this stage of development often involve significant birth defects, the question remains whether aborting a fetus of 24 weeks or more doesn’t involve the ending of an actual, not just potential, human life.

Questioning the ethics of very late-term abortions does not equate with being anti-choice.   People who feel passionately about a woman’s sovereignty over her body and her future can still recognize and respect the humanity of a fully developed fetus.  When the life or health of a woman is in danger late in pregnancy, medicine already has a common alternative solution to abortion in early delivery, either via induced labor or caesarian section.   And in cases of significant and often fatal fetal abnormalities, most decisions to abort late in pregnancy arise out of a mother’s understandable desire to spare her child pain.   But when a fetus is capable of living even briefly outside the womb, what is the practical difference between aborting the fetus and engaging in the “mercy killing” of a newborn?

Legalized abortion is a procedure that has shielded tens of millions of American women from the potentially devastating consequences of unwanted pregnancies and back-alley terminations.  In closing his memo, David Brook’s asserts “It could be that one of the current behaviors that future generations will regard as most barbaric is our treatment of fetuses”.  Anything’s possible.  But I wonder whether future generations might judge us more harshly for our continued failure, some four decades in, to grant all women the freedom and autonomy promised in Roe.

 

-M.J.