Today on FindLaw, I have a column that explores the theory that underlies bans on a method of abortion called "intact dilation and evacuation" (or D & X). In 2003, Virginia passed a law that it called the "Partial Birth Infanticide Act" -- which largely mirrors other so-called "partial-birth abortion" legislation that prohibits one form of second-trimester abortion. The U.S. Court of Appeals for the Fourth Circuit heard argument (for the third time) on Tuesday on the Virginia law, which is challenged as placing an undue burden on a woman's right to terminate a pregnancy. As I point out in the column, the coming election will play an important role in determining the future of such laws and, more generally, the continuing ability of women to decide whether or not to remain pregnant. As a moral-philosophical matter, the column argues that one might distinguish different abortion methods from one another but that "partial-birth" is an unpersuasive basis for doing so.
In this post, I want to discuss an aspect of the second-trimester abortion question that rarely receives much attention: the fact that many people find later abortions much more disturbing than earlier abortions. For a person who calls himself or herself "pro-life" and means by this the belief that a "person" has come into existence from the moment of conception, the culpability of abortion has nothing to do with where in the zygote's development into a full-term baby a woman seeks to terminate a pregnancy. As a pro-life attorney with whom I regularly converse argued, a person is a person regardless of where it is located (inside or outside a woman's body) and regardless of how developed it is (a zygote or a 2-year-old child). Pro-life theorists therefore reject the notion that late abortions are "worse" than early abortions.
Why does this matter? If most people accept the grading of abortions into "better" or "worse" based on their timing, why should the moral commitments of the pro-life movement matter to our reaction to proposed or challenged legislation? The answer to this question is that if the group that presses abortion regulations does not distinguish -- in terms of their own views -- between the morning-after-pill and infanticide, it may very well propose laws that "save" embryos at the expense of late-term fetuses.
Consider a concrete example. Laws that require parental consent or notification prior to abortion are quite common, and most people seem to think they make sense (though I argued otherwise here). If a minor truly wants an abortion, however, then laws that require parental notification (with a judicial bypass option) likely have the effect of delaying many of the abortions that might have taken place early in pregnancy. This is true as well for legislation that requires women to come to her provider for an "informed consent" session and then leave and return for her procedure after 24 hours have passed. Such laws force women who would like to have an abortion on day 1 wait until day 2 (or, if practical considerations preclude immediate return, then day 30 or day 60). From a pro-life person's perspective, delay is not a problem, because it leaves open the possibility of no abortion at all and, if there is an abortion, it is not worse at 5 months than it would have been at 5 weeks. A woman who works directly on reproductive rights law told me, in fact, that quite a few pregnant 17 year olds wait until they turn 18 to have an abortion (even if that means she aborts much later in pregnancy) rather than tell a parent about the pregnancy, as the law requires her to do. From the standpoint of those who believe that an early abortion is far less troubling than a late abortion, such realities ought to matter a great deal.
Pro-life groups, however, are just as eager to prohibit use of the morning-after pill and medical abortions (such as those induced with RU486) as they are to ban the later and more controversial methods. Indeed, if they manage successfully to delay a woman's ability to get an abortion until late in pregnancy, they can then point to the disturbing nature of the procedure involved to gather more supporters from the population at large. Knowing the motives and the moral views of abortion opponents is thus not only in assessing the sincerity of arguments surrounding D & X bans but also in predicting the likelihood that mainstream views of abortion will find proper expression in legislation crafted by people who view an embryo as morally identical to a toddler. It may be, in other words, that if one hopes to reduce the number of late abortions (rather than to reduce the total number, even if it increases the most troubling sorts), the best strategy is to make morning-after-pills and other early abortion methods as accessible as possible rather than to ban later methods of termination. This is the opposite of what President George W. Bush has done, and it is the opposite of what John McCain and his extremely pro-life running mate Sarah Palin would do, if given the chance.
Posted by Sherry Colb