Wednesday, May 30, 2012

Mandatory Ultrasounds and the Adoption Alternative

by Sherry F. Colb

In my Verdict column for this week -- Part 1 of a 2-part series -- I discuss the set of Texas amendments to the state's Woman's Right to Know Act, a group of amendments that I call "the Sonogram Law."  The Sonogram Law, passed approximately one year ago, requires abortion providers to give women an ultrasound at least 24 hours prior to her abortion (or 2 hours prior, if she certifies that she lives at least 100 miles from a provider) and display the ultrasound image for the woman, explaining in detail the contents of the image, playing any audible fetal heart sounds, and explaining those sounds to the woman as well.  A group of Texas providers challenged the constitutionality of the Sonogram law as it affects physicians, but my column focuses on the constitutionality of the law as it affects women seeking an abortion.  I examine how the Sonogram law resembles and differs from abortion regulations that the Supreme Court has considered in the past.

In this post, I want to take up the related question of what happens to women who decide to remain pregnant after seeing an ultrasound, not because they want a baby, but because they feel pressured by their "informed consent" session into taking their pregnancies to term.

In discussing the burden of an unwanted pregnancy, I have generally focused on the intrusion of such a pregnancy on a woman's bodily integrity.  To force her (or pressure her with targeted emotional appeals) to remain pregnant against her will is to support a monumental invasion of her body that burdens her organ systems, her health, and even her ability to sleep and to breathe comfortably.  Regardless of what one believes about the moral status of an embryo or fetus, the physical imposition of pregnancy provides a compelling argument for protecting a woman's access to abortion.  I have described this basis for an abortion right as "The Bodily Integrity Interest" (or "Bii") in a symposium piece about the rights and interests of future generations.

In thinking about the Texas ultrasound law, however, I have given some more thought to another argument for  protecting a woman's right to have an abortion, particularly in the early stages of an unwanted pregnancy:  the  interest in avoiding the emotional pain involved in giving up a child for adoption.

For someone who truly believes that a fertilized egg is a "child," I recognize that my argument here will not be persuasive.  Unlike the bodily integrity interest, the interest in avoiding an emotional bond that will subsequently be severed cannot justify killing someone (as opposed to terminating something that will later become someone).  On the other hand, to the extent that we have doubts about when exactly a zygote or developing group of cells becomes "someone" who can meaningfully be considered a "child," it becomes legitimate to consider the impact of unwanted bonding on someone who will not be able to keep her baby once he or she is actually born.

In a book entitled The Girls Who Went Away, author Ann Fessler relates the stories of women (whom she interviewed) who gave birth in the decades before the Supreme Court decided Roe v. Wade, a period during which many single young women were treated as presumptively unfit parents who should be forced or pressured to surrender their babies for adoption by more suitable families (i.e., married couples).  With no legal abortion option, the women whose stories fill the book gave birth and then promptly lost their children.  Their tremendous suffering, grief, and disorientation comes through very clearly and poignantly in the book, and many of them never recover from the loss.  If a woman is not going to be able to keep her baby, it is a special sort of cruelty to force or strongly pressure her nonetheless to gestate and give birth to that baby, only to have to say goodbye.

I cannot avoid observing here that a grotesque version of what confronts women in these circumstances confronts every dairy cow within the industry, including on allegedly "humane" farms.  Like humans, other mammals form extremely strong emotional bonds to the babies to whom they give birth.  In dairying, we forcibly impregnate dairy cows on a "rape rack" and then, after they give birth and express no greater yearning than to nurse and to be near their new babies, we take away their babies, one after another, so that we can consume the mother cows' breast milk.  In thinking about the reproductive abuses that women unjustly confront, in Texas and elsewhere, it is worthwhile to think too about our nonhuman counterparts whom we daily condemn to similar reproductive anguish with our consumption choices.


Joe said...

"similar reproductive anguish"

to the degree a cow and a human have "similar" anguish. I speak as a vegetarian and still am a bit wary about the comparison.

Blogger said...

Yes, the comparison of dairy cows and pregnant women caught me a bit off guard as well. So did the abrupt pivot from a minimalist view of the value of a fetus to a heightened sensitivity to the feelings of a dairy cow.

Sherry F. Colb said...

Thanks Joe and "Blogger" for your comments.

People who have witnessed the separation of calves from their mothers -- including experts in animal behavior -- find the maternal anguish quite profound and striking. Given the similarities in the parts of our brains and the neurochemistry dedicated to emotion and bonding, it would be surprising to find differences in kind between maternal feelings across species.

It was largely the suffering of dairy cows at the repeated loss of their calves that motivated me to move from being vegetarian to being vegan.

On the more general point of comparing women and dairy cows, I think many of us -- and by "us" I refer to people who concern ourselves with gender equality -- are reluctant to acknowledge the parallels between what men have historically done to women and what humans have done and continue to do to nonhuman animals. Reproductive servitude -- which is what characterizes both the dairy and egg industries -- treats females as having only instrumental rather than inherent value. As a feminist, I oppose this treatment of any sentient being, regardless of species.

For someone who considers nonhuman animals to be unworthy of our consideration, a comparison between women and animals signifies a disrespect for women, and this may be what worries readers about it. But I consider nonhuman animals worthy of consideration. I therefore do not intend my words as an "insult" to women, any more than a feminist who compares women to men would be leveling an "insult" to men.

On the question of the value of embryonic life, I did say -- although I perhaps should have emphasized more -- that I did not think someone who regards a zygote as a child would be receptive to arguments relying on the burden of imposing a bond that will be subsequently severed, as an argument for abortion rights. For someone in that camp, I think the bodily integrity argument is the only defense of reproductive rights that can persuade (and of course, many people who regard a zygote as a child do not find the bodily integrity argument persuasive, in any event).

For some, however, the zygote -- lacking sentience of any sort -- is no more a child than the egg and sperm that combined to form it, and the embryo and fetus do not clearly register as a child until some point during the pregnancy beyond the early stages when most abortions occur. For someone in this camp, the weight of a woman's interest in avoiding a powerful bond that will be subsequently severed can count for more than it would if one conceded the status of the zygote, embryo, and fetus as no different from that of a child.

On this point as well, it seems no contradiction to express sensitivity for the feelings of a cow, whose nervous system is completely developed and whose capacity for maternal bonding is quite like our own in intensity, while simultaneously expressing less sensitivity for an embryo that is incapable of experiencing loss.

One might choose nonetheless to treat the zygote as having moral entitlements, in virtue of its DNA or its potential or a belief in ensoulment. To do so is to argue that there is a justification for imposing great emotional burdens on a pregnant women. In the case of the cow, by contrast, there really is no similar argument to justify subjecting her to the pain she suffers. The fact that one enjoys milk rather than soy milk or almond milk in one's coffee, dairy rather than coconut, soy, or almond-based ice-cream, or dairy rather than Daiya cheese pizza, hardly qualifies as a compelling reason to inflict such suffering.

Joe said...

I appreciate the reply and I'm a vegetarian (who makes an effort not to have dairy) for ethical reasons.

I still think there are differences here especially as we speak of reproductive rights.

Also, the general public thinks "nonhuman animals" are worthy of consideration. For instance, many were appalled at Michael Vick and support various cruelty to animal laws. We all know they are selective about it, but this is different from saying they don't "consider" them.

So, I remain "a bit wary" but agree on the overall point. As to the second comment, I don't quite know what "minimalist view of the value of a fetus" means. First, most abortions occur before a "fetus" exists. Second, not believing a "fetus" is a full child (the common view) is not really "minimalist."

I do think the addendum is somewhat off putting. But, if we want to be somewhat non-germane, many women who have abortions are upset too. They think it is the best choice all the same, many (see, e.g., "The Abortion Myth") feeling it is their moral duty to do it instead of let's say giving a child up to adoption and not knowing what would happen.

Joe said...

I'll leave it there but let me note I appreciate the "Findlaw" crew here (and elsewhere) include some who speak about animal interests, including Julie Hilden who has an interesting article on animal rights on her website.

Blogger said...

I think the "minimalist" view of the fetus is the one Sherry describes: a zygote with no moral value. The "heightened sensitivity" is to the dairy cow's emotional bond to its young.

I agree that killing animals for food is wrong. And I agree that a newly-formed zygote is not the same as a baby.

But, as with many moral judgments, I think it is important to recognize a vast expanse of gray area between extremes. For example, I think most would agree that the more fully-formed the fetus, the less morally tolerable the abortion. Likewise, the less sentient the being, the less objectionable the harm to it is.

Sometimes people who want to challenge my vegetarianism ask why I think it's OK to kill celery for food, because it too may have an interest in surviving and flourishing biologically. I've take to partially conceding the point, but then asking which suffers more, a cow or a celery?

I think that ethical behavior often requires asking what conduct involves the least suffering. Reasonable people will disagree in their judgments, but it is important to at least recognize that many of the decisions we make do inflict some kind of harm on a being with an interest in avoiding it.

Blud Bitter said...

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