Ending the Abortion War: A Modest Proposal
by Frances Kissling
Frances Kissling is president of Catholics for a Free Choice in Washington, D.C. This article appeared in the Christian Century, February 21, 1990 pp.180-184. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found atwww.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock.
As we enter the 1990s with modest hopes for world peace, a particularly bitter and seemingly intractable domestic war continues unabated. The U.S. Supreme Court decision in Webster v. Reproductive Health Services has mobilized armies of supporters and opponents of legal abortion.
Explicitly, the court let stand a provision of a Missouri law that required testing to determine fetal viability in pregnancies of 20 weeks duration and longer (it should be noted that no such tests exist) The court further curtailed poor women’s ability to choose abortion by substantially expanding its prior rulings on public funding. It ruled that states are free to prohibit abortions at any health-care facility that receives any public funding. Even private doctors who perform abortions on private patients with private funds will be affected by the ruling if their admission privileges happen to be at a hospital that receives public money or has contractual arrangements with state or local governments.
In a move troubling to most religious groups, the court also let stand the preamble to the Missouri law, which declared that life begins at conception, saying that the preamble represented a permissible value judgment by the state, that would have no effect on the legality of abortion.
Implicitly, the five-justice plurality opinion warned that the court would no longer apply strict scrutiny to limitations on a woman’s right to choose abortion. No longer would legislatures or regulatory bodies need to show a compelling state interest in order to intervene in women’s decisions. The decision was interpreted by those who favor and those who oppose legal abortion as an open invitation to state legislatures to enact restrictive legislation designed to test further and possibly overturn Roe.
Both sides responded aggressively and passionately. Faye Wattleton, president of the Planned Parenthood Federation of America, declared, "Make no mistake about it. This is war." Kate Michelman, director of the National Abortion Rights Action League, told elected officials, "Take our rights, lose your jobs." Randall Terry, leader of the controversial Operation Rescue, said: "We’re calling on thousands of pro-life Americans to peacefully blockade these killing centers with their bodies to prevent children from dying and we will launch an equal force against state legislatures to chip away at Roe." (By quoting Terry alongside Wattleton and Michelman, I do not mean to imply any philosophical or strategic equivalence in their viewpoints or actions. It is simply that these were the voices most frequently heard and quoted in the last half of 1989.)
By any reasonable measure, so far, my side, the side that favors legal abortion, is winning the war. On the electoral front, not only have candidates like Governor Douglas Wilder (Virginia) and Governor James Florio (New Jersey) made their pro-choice positions central to a winning strategy, but politicians considered pro-life are defecting to the pro-choice camp daily.
Perhaps more significant -- and substantial -- is that pro-choicers have partially shifted the terms of the debate from the question of whose rights will prevail, the woman’s or the fetus’s, to who will decide, women or the government. This is not to say that questions of rights or of the moral value of fetal life are insignificant in evaluating the act of abortion. However, to claim that the central conflict in the debate is between women and fetuses incorrectly and unfortunately casts a woman as the adversary of the fetus and in no way acknowledges her role as moral agent. Moreover, in light of the growing attempt to subordinate individual rights to a somewhat undefined "community," even opponents of legal abortion should exercise caution in making rights arguments paramount. In framing the question "who decides?" NARAL has moved subtly from the concept of "choice," a principle that has come to be seen as related to the trivial or selfish, to the concept of "decision making," which implies greater seriousness and complexity.
Webster’s threat to legal abortion has also significantly increased the number of organizations, generally liberal to progressive, adding abortion to their portfolio of issues. The pro-choice coalition is bigger, stronger, more cohesive and better financed than ever before. It is convinced that given enough time and money it has the capacity to build the political machine necessary to win the war and preserve Roe.
Pro-life leaders, while stung by the losses of 1989, are equally committed to the long war and will surely win some victories in the next (or some subsequent) foray into the courts or state legislatures. The Catholic bishops have re-entered the political arena with a bang, declaring abortion -- not the degradation of the planet, the economy or racism -- their number one concern. Catholic legislators got a hint of the kind of political muscle the bishops are prepared to use when Bishop Leo T. Maher of San Diego announced in the midst of a special election for the California state senate that candidate Lucy Killea could no longer receive communion in the Roman Catholic Church because of her pro-choice position. Catholic legislators in Montana, Rhode Island, Washington, Connecticut and Minnesota have reported that their bishops have warned them that public pro-choice positions create "problems" for the church. With 28 professional statewide lobbying offices from Hartford to Sacramento, the bishops have a political machine capable of seriously restricting Roe at the state level.
How all this hardball political gamesmanship and bellicosity will contribute to sound. stable public policy on abortion remains to be seen. If the past 20 years are any model for the next 20, we can expect abortion to remain both an issue that is ideologically shaped and a problem that is unsolved.
One would hope, however, that this new moment in the abortion debate could be seen not only as a time of crisis by those of us who are pro-choice (and I speak only to that group, having neither the right nor the interest to suggest a course of action for the opposition) but as an opportunity to examine our own beliefs in light of the signs of the times and the experience of 17 years of legal abortion. Perhaps it is time, as one good friend so aptly put it, for those of us who are pro-choice to "take the high dive"; that is, to resist the temptation to think and act in 30-second sound bites and engage instead in serious moral discourse on abortion.
Perhaps we need to listen to the wisdom of more than 50 percent of our population. They hold in creative tension a basic sense of fair play in wanting women, with consultation, to make the decision about abortion or childbirth and a concern for the value of fetal life and the quality of women’s decisions. Only then will we be in a position to advocate public policy that respects each individual woman and expresses our concern for human life and the community at large.
Abortion is not fundamentally a political question; it deals with people’s deepest, most unconscious feelings about life, the power of creation and the survival of our species, those in the so-called ‘muddled middle" understand this better than those at either end of the public opinion spectrum. They understand abortion -- and reproduction -- as both a private and a social phenomenon. They wait for one side or the other to answer such questions as: "How will we bring new life onto this planet?" "How will we treat the rest of life?" These elements are not unconnected. Just as we challenge pro-lifers to care about more than prenatal life, so must we challenge ourselves to talk about more than the life that is here. We must also talk with reverence of the life that is to come. Most important, this conversation cannot be viewed as a threat to the rights of women, but as an enhancement of the responsible exercise of those rights. We must not let our own justifiable fear of the opposition shape the dialogue.
Concretely, we must stop criticizing moderate pro-choice voices: public officials (like Governor Mario Cuomo) who speak of the "tragedy" of abortion; columnists (like Anna Quindlen of the New York Times) who express concerns about late-term abortions; and theologians (like Giles Milhaven of Brown University) who speak of women’s sadness after abortion. All contribute a richness of spirit to the debate that needs to be encouraged, not crushed.
Our own inability to acknowledge the tragedy of abortion makes us suspect. Our continuous talk about wanted children does not inspire confidence but fear. We live in a world where our value is increasingly equated with wealth, brilliance or success. Many rightly perceive that they are powerless and unwanted. For the powerless, the fetus is a ready symbol of their own vulnerability -- a symbol exploited by right-wing leaders.
Acknowledging fetal life as valuable and as an important factor in decision making about abortion need not be linked to a specific religious doctrine. The Christian respect for life has never required the absolute protection of life. It does not require conferring personhood or rights on the fetus, nor does it suggest limiting the legal rights of women to decide whether to bring new life into the world or to have an abortion.
On the other hand, an enhanced sense of the value of fetal life should move us beyond the status quo on abortion and beyond an absolutist interpretation of the fundamental rights articulated in Roe v. Wade. On both principled and practical grounds, pro-choice advocates need to see Roe as a framework for good policy on abortion, not as a fortress against policy.
By no means should the pro-choice movement abandon, at this time, the rights framework implicit in Roe. Given the unrelentingly punitive, hostile approach to women in our society, we continue to need the strongest legal protection available to enable our full and equal participation in society. This includes legal control over fertility.
An equally compelling reason for maintaining a rights framework is the unprecedented assault on individual rights mounted by the Reagan administration. Individual rights for women are inseparable from individual rights for people of color. Efforts in both progressive and conservative circles (from Stanley Hauerwas to George Will) to portray individual rights as a threat to the community must be resisted. Individual rights, once they include women and people of color, are a threat not to the whole community but to the community of white men.
A theory of community that places unequal burdens on women in welcoming and respecting new life is inherently unjust and doomed to fail. That injustice is obvious in our society and while lip service is paid to sharing the burden, there is little evidence that the architects of communitarian models or their admirers are moving toward a concrete embodiment of equality and responsibility.
Individual rights cannot, however, be slavishly pursued. Even the most fundamental rights are regulated under the Constitution. Many of us support even more regulation for any number of rights, such as the right to bear arms. Pro-choice advocates -- not just those whose goal is prohibition-need to explore regulations that will enhance women’s decision making in a manner that respects fetal life without making protection of fetal life absolute. (At the same time, we must strongly reject policy measures whose only purpose is to limit or prohibit access to legal abortion.) We must see that such regulations, once enacted, are enforced scrupulously and noncoercively and that penalties for deliberately misinforming, coercing or unfairly influencing a woman’s ability to make good decisions are promulgated and used.
Finally, all regulations need to be looked at individually and cumulatively to ensure that they do not prevent the poor or people of color from exercising their right to act as decision makers. Walter Dellinger, professor of law at Duke University, pointed out recently in the University of Pennsylvania Law Review:
A 48-hour waiting period, for example, may not be an ‘undue burden’ for affluent professional women, and a hospitalization requirement may only serve to make her abortion more expensive. But for an 18-year-old girl in the rural South, unmarried, pregnant, hoping to finish school and build a decent life, who has little or no access to transportation, a hospitalization requirement can mean an abortion that will cost nearly $1000 and involve a trip of hundreds of miles; a waiting period can mean two long trips and an overnight stay in a strange and distant city. For such a woman, the burden would be absolute.
While it is premature to move from a brief exposition of some of the principles needed to inform public policy initiatives on abortion to a recommendation of specific measures, the state legislative season is upon us. Many legislators and advocates will not stop to reflect before running headlong to pass new laws. And it is important, as many rush to the "middle" on abortion, that those who seek to be consensusbuilders or compromisers be held to a high standard of specificity. What do we think policy on abortion should be? Are we really listening to the middle or simply attempting to co-opt it?
Here, then, are some immediate guidelines and specific elements of a sound, stable public policy that can be implemented now and contribute to a balanced, long-term approach to the issue.
First, abortion laws need to acknowledge women’s right -- and need -- to make reproductive health decisions free from coercion, as well as both women’s and society’s responsibility to create conditions for women to bring life into the world.
Either in the body of the law or by reference to other existing legislation, the community’s reverence for life should be expressed in support of social and economic programs for children and families. A good model for this can be found in the legislative program of the Children’s Defense Fund.
The balance between women’s rights and reverence for life is best expressed by making resources available to assist women in good decision making and in preventing pregnancy. We should advocate a series of initiatives that signal government involvement as opposed to intervention. Among them: funding for voluntary nondirective, comprehensive and confidential counseling services for women and their partners who are contemplating abortion (no funds should be made available to groups that favor one decision over the other or that preclude any legal option from the range of choices offered) ; funding for more measures designed to prevent pregnancy, including contraceptive research and testing as well as contraceptive education and services; and equitably distributing funds for adoption, abortion, childbearing and child rearing.
These funding proposals represent a major shift in policy and would be a significant compromise for both sides of the debate. Pro-choice advocates will need to accept greater government involvement as an expression of community consensus; in turn, the community, through the government, will need to back up its involvement with resources.
Among the particularly thorny issues confronting legislatures this year are requirements for parental consent for minors’ abortions, prohibitions on gender selection and postviability abortions, and so-called informed consent statutes. Critical to the pro-choice movement’s ability to forge consensus on the general question of legal abortion will be its ability to respond rationally and concretely to these issues. Up to now, a fundamental rights approach and our fear of the "slippery slope" has led us to reject outright all regulation in these areas. But a blanket No is simply not a sufficient response to these complex questions.
In the case of parental consent requirements, we need to acknowledge young women’s special need for adult involvement. Indeed, we want to protect teens from either coercive abortion or coercive childbearing. Form letters mailed to parents do not adequately or effectively discharge our obligation to these women. Neither does the absence of policy.
Provisions for nondirective, confidential counseling by health-care workers, ministers and other qualified professionals would enhance decision making, and a record of such counseling could be kept as part of the medical file. Statutes similar to that passed in Maine, which demand involvement by a parent -- or, when that is inappropriate, an adult family member, minister, teacher or counselor -- should be applauded.
While there is no evidence that some women seek abortions solely for gender selection, pro-lifers have seized on this possibility as a convenient and gruesome example of the extremes to which abortion liberty will drive us. But in fact the devaluation of women in society is the cause of gender-selection abortion. The few reports of abortion in which gender was a factor point to those communities, primarily Asian and African, where male children are still considered a necessity. Indeed, in Africa a woman is called infertile if she does not produce boys, while some Asian wives are abused and abandoned. As odious as I would find the practice of gender selection even in these hard cases, I would be loathe to take responsibility for any prohibition that could cost these women dearly.
However, the notion that women would seek abortions in the mid to late second trimester because the nursery is painted blue or hubby’s family has had firstborn boys for generations is ludicrous. It really deserves no response. It also deserves no defense. I would seek no laws to prevent that which does not happen, but I would not oppose such laws. This is an area for self-regulation, and one hopes that responsible providers of abortion would decline their services in such cases.
In a similar vein, I think the question of postviability abortions is of little practical significance and of enormous symbolic importance. In practice, it is extremely difficult to find a physician who will perform such abortions unless there is a serious, physical, life-threatening condition for the woman or the fetus is diagnosed with profound abnormalities. There is no evidence that the right to such abortions is necessary for women’s wellbeing or full participation in society. These facts, combined with the growing sense that fetal life deserves increasing respect as it develops should lead pro-choice advocates to accept legislation limiting postviability abortions to life-threatening or disabling cases.
Another frequently cited set of regulations on abortions are those requiring "informed consent." Up to now, the court has struck down such measures. In the post-Webster climate they will once again be raised. Without exception, all past informed consent laws were drafted by opponents of legal abortion -- not to assist in good decision making but to prevent abortion. The information mandated was often biased, inaccurate and simplistic: "life begins at conception," "the heart beats at eight weeks," "abortion is dangerous and will make you sterile." Nondirective counseling is far more appropriate and respectful of women’s capacity to make good decisions than existing informed consent approaches. Moreover, I cannot stress too strongly my belief that if the government is to be involved in the process of women’s decision making, those who are entrusted with helping women need to be held to the highest standard of care.
For those whose interest is in outlawing abortion, the rather modest shift in both laws and values set forth here offers little. In the short run, these policy measures will not reduce the current number of abortions, which is troubling. It is important, however, that we not reduce abortion policy and values to a numbers game. The goal of caring people -- eliminating all abortions -- will require a radical transformation of society. We should focus our efforts on correcting the disease, not the symptom.