Monday, March 27, 2006


Abortion and Logical Consequences

(To my readers: yes, this one is a political post. Those who don’t want to hear that from me might want to skip this one; I promise to get back to my usual subjects tomorrow.)

I’ve been following the fallout from the South Dakota abortion ban, albeit frustratedly. The debate, such as it is, seems to veer between intensely personal life stories and political meta-strategizing. Those are both valid, but I haven’t seen much discussion of the logical consequences of taking the pro-life position seriously on its own terms. What if we held that, at the moment of conception, a full rights-bearing person is created?

A few thoughts:

- If a fetus is a person, then any miscarriage must logically trigger a criminal investigation. Was the woman negligent? If so, it’s textbook ‘criminally negligent homicide.’

- A woman who contributed to a miscarriage by smoking, or drinking, or being stressed out, would be a felon. She would have to go to prison.

- Of course, to know whenever a miscarriage happens would require tremendous surveillance. (Many miscarriages happen very early, sometimes before the woman even knows she’s pregnant.)

- Women would figure this out, and not report pregnancies. This would result in foregone prenatal care, with predictable medical consequences.

- To create an exception for miscarriages would be to jump-start DIY abortions. This is not a flippant point. Women would show up to their doctors after the fact, claiming miscarriages. The smarter pro-lifers know this, and would move to close the miscarriage loophole.

- Obviously, if abortion is murder, it’s first-degree murder. After all, it’s premeditated. In most states, the penalty for first-degree murder is death. We would have to execute millions of women.

- The only way around that argument is to say that abortion is somehow less than murder. But once you concede that, the entire ‘pro-life’ argument falls to pieces.

If you know anybody who has miscarried (I do), you know just how invasive, hurtful, and barbaric a criminal investigation would be at that moment. But, by the logic of the pro-life position, there is no way around it. The only way around it would be to concede that the embryo isn’t a full rights-bearing person, at which point, the pro-life argument is kaput.

I have female friends who have had abortions, and male friends whose girlfriends had abortions. I have had these people over to my house. In my heart, I don’t consider them murderers. In my heart, I know that at other times in my life, under other circumstances, I would have done the same thing.

This isn’t my favorite issue. In a more civilized country, we’d treat it as the private matter that it clearly is, and reserve public discussion for public matters. But I’ll be goddamned if I’ll let some plutocratic jerk pass a law that forces my beautiful daughter someday to make a terrible decision. Some things are just too important.

I don’t think most pro-lifers (regular people, not the True Believers) would endorse the logical consequences of their position. They see abortion as a transcendent moral question, something that transcends analysis. So they haven’t seriously analyzed it. I honestly believe that many of them, if confronted with the reality of what their position actually entails, would recoil. Why the pro-choice side has left these arguments mostly unspoken, I have no idea.

Tomorrow, I’ll get back to my usual topics.

There was a video floating around the internet a month or so ago where the interviewer went to an anti-abortion rally and asked the people participating two questions: 1) do you believe abortion should be illegal? (they all said yes) 2) Then what is the punishment for a woman who gets an abortion? If it's murder (as many of them said when they answered #1), then shouldn't the woman be put to death. They were stumped; they had never taken the next logical step. The woman never entered the equation for them. It was all about the fetuses.
I am anti-abortion in exactly the same way that I am anti-chemotherapy.

Both are terrible choices, with sad, terrible results, but often life-saving results. However, I would wish neither of them for anyone. We should be working for a world where neither is ever necessary. Cancer and unwanted pregnancies should be things of the past.

But no matter how terrible they are, neither abortion or chemotherapy should be illegal. Really.
Taken one by one, most every abortion seems defensible. Taken in the aggregate, America has too many abortions. There is a large majority of folks who want to keep abortion legal, but who believe the additional regulation is legitimate, and that until abortion truly becomes "rare" society should create a climate of hostility to the procedure.

The South Dakota law is a very wrong-headed approach that is going to backfire. Folks in the middle for many years had been drifting away from the stridency and absolutism of feminism. But they will not accept the new absolutism from the pro-life side. Pro-lifers overplayed their hand.

What does "rare" mean? Alas, that is subjective. Ironically, abortion was already rare in South Dakota, fewer than 10% of pregnancies were terminated. In New York, where abortion rights are under no threat, and where abortion would remain legal if Roe v. Wade were repudiated tomorrow, one in three pregnancies is terminated. You can't tell me that one in three New York preganancies resulted from rape, incest, danger to the life and health of the mother, or even failure of birth control.

Rather, it is, unfortunately, the "logical consequence" of treating the fetus as a nothing, an inconvenience.

How do you feel about the idea of using abortion as a means of sex selection? Does it matter if mostly boys or mostly girls are aborted? I find the idea so disgusting that I would like it outlawed, yet the idea of asking the government for permission to have an abortion is even more repellant.

There is a sense that the moral character of our country is in a decline, a fall both reflected in and encouraged by our entertainment industry. I suspect that many pro-lifers believe that decline is abetted by freely available abortion, which they see as taking away the consequences of misbehavior. What they want is for the misbehavior to stop, which would make abortion unnecessary, which is why they never think through where their policies would take them.

Here's an unpopular idea that I believe is true: Every abortion is a tragedy. That insight from HRC could be an important first step to finding the middle ground. It doesn't mean abortion should be outlawed, but it can be regulated.
Prof. H said it well. I don't know anybody who had an abortion who took it lightly; it was a hard decision, but the right one in those circumstances. I'd take exception to Equality's criteria for legitimate abortions, simply on the grounds that life is waay too complicated to reduce to just a few categories. That said, I strongly agree that prevention is vastly preferable. If you want to make abortion rare, can the 'abstinence only' crap and make real birth control widely and discreetly available. And it would be nice if guys had a more appealing option than what we currently have.

In terms of regions, it's worth noting that the Bible belt has much higher divorce rates than the Northeast. In fact, it has higher teen pregnancy rates, higher divorce rates, and higher child poverty rates than the Northeast. If we want to talk cultural decline, let's talk cultural decline.
Well said, DD and Prof. H.
Just for reference's sake, sometime in the last couple of years Virginia did in fact propose a bill making it a crime not to report the "death of a fetus," which sounds remarkably like some of the points you put forward here. The point was to target abortion providers, but of course it also affected women who miscarried, and there was quite a lot of outrage and the bill was withdrawn. But the concept is not (to some people) unthinkable. (I guess I bring this up to point out that the logic you see leading to an untenable conclusion - which I agree with you about! - is not outside the realm of possibility. Sadly.)
DD, I wanted to raise a few objections here:

(1) Not all pro-lifers are pro-death penalty. In fact I would say a large percentage of Catholics, for example, see abolition of the death penalty as being on par with the abolition of abortion. In other words, pro-life is not just anti-abortion but an overarching belief in the sanctity of life, period. I know a lot of pro-lifers are NOT this way, but just because there are a few who support the death penalty and do not support the "right" to an abortion doesn't make the death penalty a "logical consequence" for all.

(2) However, I think your point is that if abortion were made illegal TODAY, it would be first-degree murder and hence subject to the death penalty. The part about first-degree murder is probably true (although I am not a lawyer), but not all first-degree murders are punished with the death penalty. So saying that executing millions of women is a "logical consequence" of making abortion illegal, in the sense that one ALWAYS implies the other, is not really right.

(3) There is a significant difference between miscarriages, which are unintentional (though the mother can contribute to the probabilities of miscarriage), and abortions, which *are* intentional. That intention is key -- abortion is a choice that is made, whereas miscarriage is not a choice. The pro-life position stands against the intentional choice to end the life of the baby, and apparently says nothing about miscarriages, and so all those logical consequences about miscarriage you mention do not seem to follow from anything.
Robert -- I must disagree with most of your point. Yes, the official Catholic Church position is both anti-abortion and anti-death penalty. But in American politics, it doesn't work out that way.

Even if it did, 'compromising' to life in prison is hardly satisfactory. If abortion is actually murder, then as a matter of logic, it should be punished as harshly as murder. The only way not to would be to concede that abortion isn't murder, at which point the entire 'pro-life' argument collapses.

The point about intentionality assumes a clarity where none exists. If a woman throws herself down the stairs and a miscarriage results, is that intentional? What if she takes drugs? What if she drinks too much? What if she takes antidepressants that have dicey side effects?

My point is that this kind of surveillance into women is horrifying. While moral arguments on the issue can be complicated, the legal argument is clear. Abortion must be legal, or the consequences will be catastrophic.
I appreciate your courage in posting on this issue. Susan Bordo has an excellent essay called "Are Mothers Persons?" which would complement the logical extensions you point to quite well. And as New Kid says, these options are by no means outside the realm of possibility.
And what of failed reproductive treatments? All those embryos created that don't survive to implantation and successful pregnancy?

And furthermore... what of the 'surplus' embryos that never make it to transfer? It happens - sometimes more embryos are created than the family comfortably support as children, and some people are uncomfortable with the idea of embryo donation. The embryos are either donated to science or allowed to expire. Is that mass murder?

Bravo to you and professor h. Well said.
Liz here from I Speak of Dreams. I'm with Prof. H & equality. Abortion is a terrible choice, and very elective abortion is a tragedy. should remain a private, legal choice.

One thing I've never heard an "life begins at conception" theorist address is the rate of live birth/conceptions. According to an article by Wayne Z. McBride in The American Family Physician: "The true incidence of spontaneous abortion (including unrecognized pregnancy loss) has been estimated to be 50 to 78 percent of all conceptions"

I want to know what the Scandinavian countries are doing, that they have a high rate of sexual activity in teens but a relatively low rate of pregnancy.
DaniGirl -- I thought of you as I was writing, but didn't know if a name-check in this context would be creepy. You're certainly right, though; the more you dig into the pro-life argument, the weirder it gets. The implications for IVF would be devastating, which, ironically enough, would actually prevent people who want to have kids from having them.

Liz -- I hear ya...
As someone who has had both a miscarriage and a baby die shortly after birth, I find DeadDad's speculations chilling. My miscarriage would have defied the ant-choice lobby's definition of fetus because it was a "blighted ovum" (technically not a fetus) but the death of my baby might have resulted in very severe consequences if DD's progression had been followed. Should I have bee jailed for not knowing when my water broke? This was likely how the infection that killed my daughter occurred; is this negligence? Was our decicion to have a homebirth negligence? Some made us feel that way at the time. It was bad enough having to deal with a bitchy coroner after labour, delivery, a dead baby and surgery without worrying about potential legal action, jail time or a death sentence.

And how would medical practitioners deal with all of this? If you think insurance premiums are high now, just wait. Lots of doctors already don't choose OB/GYN so as to avoid these kind of hassles.
Speaking as someone who used to teach embryology...

I have always wondered at the absolutism of both of the noisy camps in this debate. It seems as if neither side can agree that there is a difference between a human blastula (a tiny, mostly undifferentiated ball of cells) and an eight-month-old fetus. It's weird.

Me, I tend to favor a "sliding scale". Early in pregnancy, I favor legal abortion for pretty much every reason, as long as it's voluntary. Most of this is for the reasons our host details, but it's also true that the fetus being killed is less sentient than a cow. (Have you seen those anti-abortion signs that say "Abortion stops a beating heart"? I always wanted to make a counter-demonstration sign that said "So does a hamburger. What's your point?")

After the fetus' brain "turns on", which is about the fifth month, I am inclined to think that the only valid excuse is the mother's safety. A thinking being with human genes is a person*, and can legitimately be killed in this situation only in self-defense.

I think this is at least reasonably fair, since the mother has had several months to think about the implications of the pregnancy. As time goes on, the burden remaining to her lessens, and the fetus becomes more and more a person, so it's only fair that the balance tip the other way.

*I am willing to consider the argument that a sentient non-human is a person. I'll cross that bridge when I come to it.
Laura- I loved that video! didn't you post it? or a link to it? Dean Dad thank you for showing the slippery slope women would be on if these things were passed federally, it's bad enough women in one state have to put up with it.
And Robert, whether or not my losing a baby through abortion or miscarriage is nobody's business except me and who I deem necessary to know, most likely my family and partner. It is none of the governments concern what happens to my body.
Whether or not I'll ever make that choice or not I don't know yet, but it's mine to make.
Great post and discussion.

A quick note to Grumpyabdadjunct: if you read around, what used to happen to women after problems with illegal abortions OR sometimes miscarriages was that doctors were sometimes afraid to treat them, or weren't allowed to until they gave information about their abortionist or "confessed" (hard to do for a miscarriage). So women died.

From what I've read of really late term abortions (some .05% of all abortions or so), most women choose them rather than deliver a stillbirth or baby with terrible (sometimes painful) birth defects.

I respect women enough to want us all to have the legal ability to make those choices because the alternatives are horrific for individual women.

We can cite statistics all day, but each abortion is a decision by an individual woman about what's best for her, her family, her relationships.
Anonymous wondered what Scandinavians do to have such a high rate of tenage sexual activity (most of that is in the later teens, 17 and onwards, I think...) but such a low rate of teenage pregnancy. The answer is quite simple, but I doubt the US will embrace it: extensive and thorough sex education, starting before the legal age of consent.

In my school (in Norway) we had detailed and honest presentations on practically everything related to sex, and were presented with statistics regarding sexual activity among teenagers, the incicdence of various STDs etc, etc. We also had detailed presentations on practically every mode of contraception known to man or woman: condoms, the pill, coitus interruptus, the rhythm method, the moon phase method, you name it, we learned about it and its statistical effectiveness concerning pregnancy and STDs.
We also had sessions where we put condoms on styrofoam replicas.

Most importantly, though, the attitude was very much that sex can be very pleasurable, and its your choice with whom and when you want to do it. We watched cartoons about g-spots and whatnot, and even had a doctor in to discuss the orgasm plateaus of men and women:)

We also learned about and discussed abortion, and the law relating to it, about the effects of pregnancy, etc, etc.
New Kid said:

"Just for reference's sake, sometime in the last couple of years Virginia did in fact propose a bill making it a crime not to report the "death of a fetus," which sounds remarkably like some of the points you put forward here. The point was to target abortion providers, but of course it also affected women who miscarried, and there was quite a lot of outrage and the bill was withdrawn. But the concept is not (to some people) unthinkable."

I remember this well, and I also remember that the infertility bloggers rained HELL down upon the Virginia state legislature. It gave me chills, how they posted letters they wrote describing the utter ANGUISH they'd suffered over having had miscarriages and holding that up to the proposed further indignity of having to NOTIFY THE POLICE after it happened. It's one of the best cases of blogging as a public sphere I've encountered.
There is no doubt that the fetus is a human. Every medical school teaches human embryology. As far as a person a corporation is a person under the law. Scott Petterson is in prison for killing Connor a fetus that wasn't even born. So if the fetus is wanted it is a person and if it is not wanted it's not.
Laura said: "The woman never entered the equation for them. It was all about the fetuses."

I suspect they only thought about the fetus and the evil science-believing doctor who performed the procedure.

But to be consistent, the doctor would have to be playing the role of a hitman, and the mother who sought the doctor's services would be as guilty as a wife who seeks to have her husband killed.
4077 failed to address the central point. If the fetus is a person, then every miscarriage must be investigated to see whether and to what extent the woman contributed to it, and every woman who has an abortion is guilty of first-degree murder.

The reason 4077 failed to address this point is that it's true.
People die all the time, in accidents, by diseases we can't treat, by the various things nature is constantly throwing at us. And yes, by miscairrages.

This doesn't make a miscairrage, which no one intends, no one carries out, and no one can really prevent (due to a lack of forsight), the moral equivalent of contributing to the termination of human life.

Is accidentally hitting a black clad pedestrian at night with your car on a highway the equivalent of purposefully running someone down?
Arguments Ad absurdum.

'nuff said.
The thing is, many women do get questioned and delayed treatment because of miscarriages. Part of that is because one way of performing an abortion is to induce miscarriages (especially in later-term pregnancies). Even without written laws questions miscarriages, people get questions and accusations about them. If a doctor or nurse even suspects that there is something fishy about a miscarriage, many women will be questioned and pressured even if they didn't do anything to cause it. Miscarriages that just happen are nearly impossible to distinguish from miscarriages that were induced. It will always be a problem as long as we are trying to legislate abortion.

The Story of Jane by Laura Kaplan (which is something anyone discussing legislating abortion should read anyway) has an interesting discussion about this miscarriage issue. Admittadly, the book is talking about what was going on around 1970, but realisticly it still happens more often than we would like to think about. It usually comes down to the ideology of the doctor.
If a fetus is a person, then any miscarriage must logically trigger a criminal investigation.

That doesn't sound right; most deaths of born people don't trigger criminal investigations.
I think this is a very poor argument for allowing abortion.
Considering 25-50% of all pregnancies end in miscarriage and most are due to chromosomal disorders or lethal genetic mutations. Then by drawing a conclusion that miscarriage necessitates a criminal investigation is wrong in addition it shows poor understanding of medical practice and the law. When someone is at high risk of death due to disease or a vulnerable physiological state and subsequently die, then death is pronounced by a doctor and the need for a corners investigation is decided based on legal requirements. There is usually no legal or corners investigation. The most vulnerable stage in a persons life is as a developing foetus up to 3 years of age (hence why life expectancy increases dramatically when child mortality is reduced). The real question here is, if life does not begin at conception then where does it begin? Any answer to this cannot be scientifically supported for the simple fact that anyone who has or ever will live will be conceived and will die. There is no before and there is no after. I think it is much easier to follow that the logical consequences legalising abortion puts all vulnerable persons in a precarious position based on logical consequences.
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