Wednesday, September 18, 2013

Abortion Delayed...

By Sherry F. Colb

In my column for this week, I discuss the abortion case of Cline v. Oklahoma Coalition for Reproductive Justice, on which the Supreme Court granted certiori in June.  The case raises the question whether an Oklahoma abortion statute violates a woman's constitutional right to terminate her pregnancy.  The statute provides that if a doctor wishes to prescribe RU-486, an abortion medication indicated for the first trimester of pregnancy, he or she must do so in accordance with FDA labeling instructions from 2000, when the drug was first approved.  The problem with this requirement, as I discuss in the column, is that it -- among other things -- demands a dosage that is three times what doctors currently consider medically sound.  The result is thus to deter doctors from prescribing the medicine at all, by demanding malpractice by those who do, and thereby to effectively (and intentionally) create an impediment for women in Oklahoma who wish to obtain a medical abortion.

In this post, I want to focus on an aspect of the regulation to which I allude briefly in my column:  the possibility that impeding access to medical abortion may have the effect of leading women to terminate their pregnancies at a later stage.  Let us assume, for purposes of this post, that the regulation and others like it in fact do have this effect and that the consequence is to leave the number of abortions constant but to move them from relatively early in the first trimester to late in the second trimester of pregnancy.

From the perspective of pregnant women's health, this outcome would be very undesirable.  Terminating a later pregnancy is generally more complicated and risky for a woman than terminating an earlier one.  But let us focus only on the ideological perspective of two groups of people with a moral position on abortion:  people within the pro-choice movement who believe that post-sentience abortions raise serious moral questions (that should nonetheless be left up to the woman who must carry the pregnancy if termination is unavailable); and people within the pro-life movement (who believe that a life begins at conception and that all abortions should be illegal).

People within the pro-choice movement who believe that killing a sentient fetus raises serious moral questions would find the Oklahoma abortion regulation and others like it outrageous, for the following reason:  When a woman decides to terminate her pregnancy long before fetal sentience, her choice does not result in either suffering or death for a being capable of consciousness.  Allowing her to terminate her pregnancy at this stage rather than later therefore avoids the morally agonizing choice that she must otherwise face (and that many mainstream Americans might wish to deny her) at the later stage.  To make the point clearer, if we knew that a couple will either use a spermicide today or carry out a late-term abortion in 25 weeks, the choice would be a no-brainer:  facilitate the couple's using the spermicide now, when the action is innocuous.

Given the options of allowing abortions in the first trimester or seeing those abortions occur in the latter part of the second trimester, most people outside of the pro-life movement would strongly prefer the first option. Given that, people in this camp would find the Oklahoma law at issue in Cline to be wrong, not only because women should have sovereignty over their own bodily integrity, but also because the death of "someone" -- a sentient being -- could have been avoided through permission to kill "something" -- a pre-sentient organism still incapable of consciousness and thus of pain and pleasure.

What about from the pro-life perspective?  At one time, I thought that even people within the pro-life movement would agree that a late abortion is "worse" than an early one, because sentience must count for something.  After all, is it not people within the pro-life movement who came up with laws such as the "Partial-Birth Abortion Ban Act" (PBABA), prohibiting what they describe as a very brutal and inhumane procedure?  Presumably, one would not single out this procedure as brutal and inhumane (and thus worthy of a ban) unless one believed that it is qualitatively different from (and worse than), say, a first trimester RU-486 abortion.

I now, however, think that the pro-life view of abortion -- that it is murder from the very moment at which a sperm cell joins with an egg cell to form a zygote -- puts very little stock in fetal sentience, except perhaps as a vehicle for reaching the wider audience of people who reject the view that killing a zygote is murder but do feel that later, "pain-capable" abortions raise serious and potentially dispositive moral questions.  This would help explain, for example, their arguments offered for the PBABA saying that an intact dilation and evacuation abortion is too much like infanticide to countenance.  For someone who adheres to a pro-life view of abortion, terminating the life of an eight-cell, undifferentiated embryo is just as much like infanticide, for moral purposes, as aborting a late-term fetus through an intact delivery followed by the crushing of the fetus's skull.  The whole argument that a particular kind of abortion is "too much like infanticide" assumes as its premise the idea that abortion is, as a general matter, something better than infanticide.  The pro-life view expressly rejects that idea.  Being capable of pain is a significant marker only for those who reject the zygote = infant equation.

Why does this matter?   For someone who is pro-life in the way that I have defined it above, a late-term abortion is no worse than a first-trimester abortion.  Thus, if a woman is probably going to get an abortion anyway, delaly is a good thing rather than a bad thing.  Like someone on the telephone with a suicidal individual, the goal of the pro-life advocate is to put off the act of killing as long as possible.  If nothing else, this gives the target of the intervention a little more time to live than he or she would otherwise have had.  By contrast to most people (who would distinguish morally between a zygote and an infant), the pro-life individual would not regard it as any sort of victory to move abortions from late in pregnancy to early in pregnancy.

If early and late abortions are morally equivalent, however, then consider what follows.  Moving an abortion from earlier to later may be affirmatively desirable, from the point of view of someone who believes the two sorts of abortions are morally indistinguishable.  If a woman is allowed to terminate her pregnancy early, then most people will reject the notion that something truly horrible has occurred.  By creating impediments to an early abortion, though, the advocate of a pro-life view may find himself or herself less isolated in his or her opposition to what the woman is doing.  That is, many people would sympathize with an effort to ban and punish  -- or at least places limits on -- late-term abortions.  Therefore, if a pro-life advocate manages to move an abortion that would otherwise have taken place early into late in the second trimester, then he or she will potentially attract many allies in opposing that abortion.

At first glance, it may seem rather pointless to relocate what one regards as murder from one time to another, just because more people will oppose it at the later time.  It is not pointless, however, if we consider the fact that the overwhelming majority of abortions currently occur during the first trimester of pregnancy.  A movement dedicated to criminalizing abortion has a corresponding interest in pushing those abortions out of the first and into the second trimester.  If it succeeded in doing this, then the pro-life movement would gain strength because it would be opposing procedures that many more people consider immoral or at least morally troubling.

Along these lines, one can understand laws that restrict access to RU-486 as an indirect means of strengthening the movement to ban abortion altogether.  Few people would support an outright ban on medical abortion, provided such abortion is safe for the woman.  But a law that forces medical abortions to conform to outdated dosages that, in turn, deter doctors from prescribing them may seem relatively innocuous to people who do not closely analyze the law.  And if such laws pass, as one did in Oklahoma, then abortions may in time be pushed into a stage of fetal development at which stage the pro-life movement no longer needs to convince people that a zygote is morally entitled to live.  Simply convincing people that a sentient fetus is entitled to live may become enough.


Paul Scott said...

OK, so just a practical question.

There cannot be more than a handful of abortion doctors in Oklahoma. They are presumably not stupid.

When my orthodontist prescribed to me "prescription strength" ibuprofen following a root extraction several years ago I said to him "I don't need this, I'll just take 3 "extra-strength" Advil pills and have the same thing."

His was reply was "I cannot officially advise that you do that, but you are right they are the same thing."

I understand the purposes of the law; I understand why it is a good thing to challenge it and get it off the books (and I hope the FDA is also moving to remedy this by changing its appropriate use instructions), but practically is this actually causing delayed abortions? Are the abortion doctors not simply prescribing RU-486 by law and then providing information about how the drug is properly taken in other States?

This might be an "ivory tower" position, because as trivial as splitting a pill in thirds is for educated people, it might be a real impediment for those for whom it is typically prescribed in Oklahoma. But on its face, this seems like a tactic that could not be effective.

Sherry F. Colb said...

That's a very interesting question, Paul. I don't really know how it works out in practice. I can imagine, however, that the drugs come in different strengths (so that it would not be practical to split the high-dose pill) and that prescribing the low-dose pill would trigger an investigation (i.e., "Why are you prescribing 6 of the low dose pill instead of prescribing 1 of the high dose pill?"). Also, it may be that telling the patient "I can't tell you to do this, but..." would also trigger an investigation, so doctors might be reluctant to do it. I like the point, though, and I'd be curious whether doctors are pursuing that option.

Drew said...

Delaying abortion gives the mother time to change her mind. A delayed abortion may be saving the baby's life.

Joe said...

One "off label use" here is to prescribe the drugs up to 63 days, two weeks longer than the FDA authorized use.

Paul Scott suggested a scenario where a patient takes less than prescribed. But here the drug could be prescribed after the original cut-off date.

How does the doctor prescribe "by law" in that scenario?

Joe said...

Delaying abortion might entail having the abortion later in the pregnancy, past the line when some think "the baby" comes into the picture. For instance, the first trimester is for some (as suggested by Prof. Colb's column's reference to a book by an abortion provider) the cut-off. Delaying abortion to the second trimester would for such individuals be a serious problem.

Ian said...

I admit to be squeamishly pro-choice. That said, the lawyer in me really loves the language and tactics of the abortion fight. Prof Colb does a nice job of pointing out the pro-life reasoning for such a law as an attempt to change the perception of abortion.

I've always been amazed at how successful the the pro choice side has been at casting the other side as regulating a woman's body. Yet, in reality, both sides agree that the govt can regulate the woman's body (just a difference of when).

t jones said...

It's strategies like this that call into question whether the anti-abortion movement is actually about protecting the "unborn" at all. Just like 'destroying the village in order to save it' creates real doubts about your concern for the villagers, intentionally increasing the number of abortions in which the fetus suffers raises questions about how concerned abortion opponents are about fetuses.
In contrast, it's hard to imagine the Humane Society torturing a bunch of puppies in order to increase support for pet adoptions.

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