Recently, in the decision of Gonzales v. Carhart, the Supreme Court brought the abortion issue back to front and center. I will give my opinion on the case short shrift because of time, and it doesn't deserve to be dwelled on for the following reasons:
1) The decision was about a medical procedure based on the findings of a law passed by a very conservative Congress instead of evidence presented by medical doctors who had experienced actually using the medical procedure that the law had banned.
2) The Court decision revealed an unbelievably retrogressive view of women that has not been rivaled since Bradwell v. Illinois in 1873. It was based on a decision that declared women could not practice law because the Creator had made women to be homemakers and not for the work world. The occupation of lawyering would be too much for her. Kennedy's opinion contained some of the same demeaning attitude toward women's moral perspective regarding a perceived mental burden on women having an abortion in the last trimester of pregnancy. It pretended it was protecting a woman's mental and moral health since a woman might not be able to bear the psychological load of an abortion. Someone has called that the Court's "New Paternalism."
3) It was a shameful jurisprudential non sequitur that will not save one potential life, while denying a previous decision to protect the health and life of the woman. The decision added nothing but fear into the hearts of women who might face this medical procedure and all those who see a woman's rights being eroded. The decision was best summarized by a Yale law school professor: It was "beyond Alice in Wonderland: criminalize abortion to protect women."
It is my intention this morning to state what I mean by the "unfinished revolution" in Roe v. Wade and women's reproductive freedom. This has mainly to do with the changing context of controversy over abortion and the dialogue that never happened among those of us who were pro-choice, concerning the highly complex moral issues involved in a woman's freedom to choose.
As many of you know, I was personally involved for a decade before and after Roe v. Wade. Not being a single-issue activist, I opted out of the continuing controversy while other organizations grew up to defend Roe v. Wade. I came back to the issue some twenty years later, when adversaries to pro-choice started employing violence against doctors and destruction of clinics.
First, what I believe is the most important and obvious unfinished business for those of us who are pro-choice and perhaps most forgotten in the struggle for women's right to an abortion: almost as soon as Roe v. Wade became the law of the land, that law was not simply eroded, it was made null and void by the Hyde Amendment which declared thousands of women "ineligible" because they were too poor to afford an abortion. The Amendment said that no federal money could be used for assisting a woman to attain the freedom guaranteed in the new law. In other words, in the last three decades that we've been celebrating Roe v. Wade, there probably were a million or more women for whom that law meant very little. The same women who couldn't get an abortion when it was "illegal" still can't get one now.
This part of the women's freedom revolution has yet to see any singular movement of protest against a flagrant discriminatory law aimed at poor, minority women and their freedom. I realize that the pro-choice movement has been busy protecting and defending against the loss or erosion of Roe v. Wade, but I submit to you that the repeal of the Hyde Amendment demands a special impassioned voice of protest to accompany the pro-choice organizations in their work.
I want to suggest that this reform movement might best be instituted by faith-based organizations and religious institutions that claim to be pro-choice. I realize that there have been dedicated religious leaders who have given time and energy to organizations that are defending a law that made it possible for all women free to choose to have an abortion. We need a reform movement to repeal a law that would make it possible for all women to have an abortion. If I might suggest an analogy: the civil rights movement wanted to make it possible for black people to eat at our lunch counters. Martin Luther King's movement included economic reform that would make black people able to eat at the lunch counter. Tell a poor, Latina, single mother that she is free to have an abortion and it won't be terribly meaningful to her unless we repeal a law that prevents her having an abortion.
We need a movement to complete Roe v. Wade and faith-based communities are a natural to take this on. (I am not directing this plea to Judson Church and its leadership; we already have enough action. I am speaking to religious institutions at large.)
Another aspect of the unfinished revolution is not so obvious. What I have to say now stems from observations of what has happened in this unending controversy, both in the partisan debate and in the public attitude. It is my clear conviction that the debate has radically changed since we first engaged in the struggle. In part, my view is based on the fact that a third of a century after the landmark decision, the public remains unbelievably ambivalent about abortion - 73% of Americans are in favor of abortion rights and 77% regard abortion as some kind of destruction of life (47% see abortion as murder and 28% as taking of human life). Well, you might say, a large percentage for keeping abortion legal, that's all that's important. Those poll figures are from 1990. A recent survey among students showed 60% believed Roe ought to stand, but when asked for details in particular cases (unmarried minors, or families finding it financially hard to raise another child), the young people were much more restrictive. It is my contention that this ambivalence is one of the reasons for the erosion of Roe v. Wade.
Another reason why the context and the nature of the debate have changed: scientific advances in pre-natal and neo-natal technology. When there was nothing but an imaginary "primal scream" and exaggerated photographs of the fetus in the first trimester, pro-choice defenders felt confidence in their work; but lately, when you could do brain surgery on a fetus in the womb and it is born healthy and is now a two-year-old, that alters the discourse on the question of viability - which Roe considered the time in pregnancy when the state had an interest in evaluation of potential life in pregnancy.
One of the missing pieces of Roe v. Wade is that the justices decided that they could not decide when life began. In fact, they said "they would leave that to theologians and philosophers," as if that breed of speculators could be any more helpful in providing us with a consensus about when life began. To be sure, theologians have provided us with a faith-based notion of when life begins but nowhere near a consensus, even among followers of their faith tradition. What the justices did make clear, and that most all of us might agree on regarding pregnancy, is that in each stage of development new moral or medical questions are injected into the unquestionable freedom to abort fetal life.
Those who are pro-choice, and particularly those who are vigorous defenders of women's rights, do not want us to be seen as placing any value on the fetus lest it be used by the opposition as talking points in this highly-charged controversy. What that means is that in the public debate, there must not be even a hint that the fetus has any value at all, anywhere in pregnancy. I would contend that if we stopped yelling at each other across the barricades of our sound-byte defenses, perhaps we could talk about some of the moral and ethical issues that have been ignored. Let me illustrate. The anti-choice folk insist that not only the fetus but also the fertilized egg is a "person" with rights, which transcend a woman's right to choose. The error in a genetic definition of personhood is that it confuses potentiality with actuality - the fetus is a promise, not a product (a lot of our pro-choice defense is based on that distinction) - but even that has a caveat. Isn't there a time in pregnancy that the "potential" becomes "actual?" (More on that later.)
Part of the ambivalence about the nature of the fetus stems from the intention of the pregnant woman. If she intended the pregnancy or wants the fetal life to be born, she calls that fetus her "baby" and even names it. In fact, that woman endows the fetus with "personhood." But the woman who did not intend the pregnancy, and cannot care for a baby-yet-to-be-born - she is not claiming that the fetus has no value, but, more accurately, asserting her right to choose, as an actual living person, over a potential life form's right to be born (almost always in the first trimester). It is precisely at this point that the struggle begins between anti-choice and pro-choice people. The anti-choice people framed the debate by capturing the language in a slight of hand slogan: "the right to life." Slogans, though they may be expedient for 30-second commercials or for rallying emotions, are seldom useful guides for moral decision-making about complex issues. "Right to life," or in this instance, the "right to be born," is a dubious moral construct that only has meaning in a fantasy world, where life is an abstraction and there are not competing rights. In the real world that we live in, tough and ambivalent choices are made every day between conflicting rights and loyalties. In some places in the world, food is scarce - more people than food - who has the right to food? How do you make that decision? Do orphans have the right to parents? How do you decide which children will have a family? To the absolute moralist, it's easy: just pass a law that adoption is mandatory.
I don't believe anyone has a "right to be born." Birth cannot be seen as anything but a gift - a marvelous present - a gift of the Creator and a woman's will. We are born, hopefully, of human intention and at the cost of real physical pain and risk and the nourishing love and care of a woman. Rights begin after birth, but even then they are not absolute or indisputable, but fought for, denied, and balanced against others' rights.
Perhaps one of the reasons it is so difficult for us to be thinking about changing the nature of the discourse - and granting that the fetus has value - is that for more than thirty years we have thought of the act of abortion as nothing but a political issue, and our only concern was to protect a law. However, most of us know that for a woman having an abortion is the most deeply personal decision involving her feelings about life, the power of her creative capacity, and the responsibility of caring for another human being for untold years of her life. That is why I believe that the freedom of a woman to control her reproductive function is so precious. Do I believe that freedom to be absolute? No. As many of you know, I am highly skeptical about any unquestionable certainties whether religious, political, or moral! For example: a woman, if she is not interested in childbearing, has a responsibility to see that her sexual activity does not lead to pregnancy, and her male partner bears the same obligation; instead of using abortion as a contraceptive of last resort, the couple should make every concerted effort to prevent pregnancy.
When pregnancy begins, the same freedom to determine the evolution of that pregnancy is still there. If the desire is that the fetal life results in birth, then the woman's freedom, morally speaking, is restrictive. What about the freedom of a woman who is pregnant to continue using heroine or cocaine? What if the drug is alcohol or nicotine? Most of us recoil at the thought of such behavior, some would believe such irresponsibility ought to be restrained or punished. Our judgments about this results from our belief that a "potential life" is involved, and it is only the beginning of how that "other life" will compromise the woman's freedom.
It is in another stage of pregnancy that the fetus becomes viable - i.e., can exist outside the woman - so that the moral and medical questions become more acute and the freedom to terminate fetal life becomes more questionable and even legally restrictive. Does "viability" imbue the fetus with "actuality?" Is it a life form deserving protection from destruction or is "viability" simply another arbitrary point in pregnancy? It is a fact that new technology gives us a stirring set of images in advanced pregnancy that causes pre-birth to fade into new life. The same ethical issues that were there the week before delivery are there the week after birth. People who are pro-choice are always furious when our adversaries accuse us of infanticide. We claimed that we were only in favor of feticide, but once the baby was born - that was it!
What does that mean? The newborn now has inviolable rights that trump the mother's or parent's rights to terminate the baby's life? Rather than looking at some futuristic, hypothetical case, let's look at a case in the early 90s: the case of Portia Davis, who at the time resided in Children's Hospital, Washington, DC. She sat strapped in a wheelchair. She was three-years-old. Her tiny pointed head jerked mildly as she passed from seizure to seizure. She had virtually no brain. She was completely unresponsive and unaware of her surroundings. Her pre-birth history: at 27 weeks a sonogram showed a grotesque malformation - it was encephalitis of the brain. The mother and her ob-gyn agreed to an abortion. The doctor consulted several colleagues who told him the fetus would be born alive. At the last minute he refused to do the procedure and sent the mother home, assuring her that the fetus wouldn't endure the pregnancy. When Portia was born, they told the parents she would not live more than a few days.
Here are a few questions. Can a reasonable and moral argument be made for the doctor who refused to continue the abortion? Can we suggest justification for not withholding the treatment in the ICU nursery? Are there things worse than "death" for some newborn infants? If so, how do we make those decisions and what do we call it?
Before I conclude this question about the changing dialogue and the new moral questions confronting those of us who are pro-choice, there are two caveats I want to make. There is little chance that a reasonable discourse can take place with the extremist anti-abortion advocates - most of whom are Catholic doctrinal fundamentalist or Protestant biblical literalist. But I think a reasonable dialogue can take place among die-hard defenders of pro-choice who think abortion is simply another medical procedure involving only a woman's freedom to choose, and even object to the phrase that abortion should be "legal, safe, and rare" as too judgmental an act.
Time will not permit, but we who are pro-choice can list just as many difficult moral dilemmas for those who believe that abortion should be legally forbidden. Most of us have been using those arguments against our adversaries for the last thirty years.
Lest I be misunderstood, let me assure all of you that I have been talking about the moral and ethical questions surrounding abortion and not laws that guarantee a woman's right to an abortion and the protection of her life and health throughout her pregnancy. What I have been asserting may best be summed up by a quote from Frances Kissling, the lifetime leader of Catholics for a Free Choice:
…after three decades of legal abortions and a debate that shows no sign of ending and has no clear winner, is it not time to try and combine rights and morality - both women and developing life… Any movement that fails to grapple with and respect all the values at stake in crafting a social policy about abortion will be inadequate in its effort to win the support of the majority of Americans.
Let the struggle and the dialogue continue, and may a deeper understanding subvert any absolute certainty that our position is the only moral one.
