Regulating Abortion

In Gonzales v. Carhart, the Supreme Court upheld the Partial Birth Abortion Act of 2003, a federal law banning a specific type of late-term abortion procedure in which a physician delivers the baby partway, then kills it while it is still in the vaginal passage before completing the delivery. Although the law made an exception for cases in which the procedure is necessary to preserve the life of the mother, it made no exception for her health.

Predictably, the decision prompted jubilation on the part of prolife activists and angry despair on the part of prochoice activists. In response, legal scholars emphasized the narrowness of the decision: the federal law in question does not ban all late-term abortions, only a specific type that is rarely performed. Its impact, they say, is largely symbolic. And therein lies the problem. From a symbolic perspective, the law in question pits the core concern of the prolife side—the human dignity of the unborn child—directly against the core concern of the prochoice side—the bodily health and integrity of the mother. Here is a capsule summary of the conflict.

From the perspective of prolifers, the core concern is the human dignity of unborn life. The most objectionable aspect of Roe v. Wade is its holding that the unborn aren’t persons under the law. Legal personhood, according to Roe, doesn’t begin until the baby is born. According to prolifers, this dividing line is particularly arbitrary and cruel; it turns on the baby’s physical location, not on any aspect of its physical development. Consequently, they see the partial-birth abortion procedure as a ruthless exploitation of that arbitrary line: the physician partially delivers the baby, then kills it in a particularly gruesome manner, collapsing or crushing its skull immediately before birth. No procedure better exemplifies the fact that there is no intrinsic difference between a late-term fetus and a newborn baby. Prolifers see the law as striking a blow for the personhood of the unborn by prohibiting a procedure that is on the very verge of infanticide.

From the perspective of prochoicers, the core concern is the physical integrity and well-being of the mother. They see the law as striking a blow against this concern by excluding a health exception. The personhood of the unborn and the brutality of the procedure are not, for them, conclusive factors. Pregnancy involves the bodily dependence of the unborn child on its mother; in many cases, it entails a significant physical burden. To legally require a woman to continue a pregnancy—or to deliver a baby—when doing so harms her own body is to treat her as a mere means to the well-being of the child she carries. There is no other instance where U.S. law requires one person to provide bodily life support to another person. The law does not require parents to rescue children when doing so puts their own safety at risk. A father is not required to rush into a burning building, nor is a mother required to donate a kidney. To require a woman to carry a pregnancy to term when doing so risks her health confirms the worst fears of the prochoice movement: it’s not simply that pregnant women have no autonomy, it’s that pregnant women have no right to protect the fundamental integrity of their own bodily existence.

So why no exception for the health of the mother? Practically speaking, prolifers introduced weighty medical testimony that the procedure was never medically necessary to preserve the mother’s physical health. Furthermore, prolifers had learned to mistrust the “health of the mother” clause as an exception that swallows the rule. If “health” encompasses “mental health,” and “mental health” is broadly defined, virtually any abortion strongly desired by the mother could fall into the loophole. So for symbolic and pedagogical as well as practical reasons, they argued that the law could not make an exception for health.

What’s the prochoice response? Medical testimony was not unanimous. Some physicians testified that in certain cases, the procedure was better able to preserve the mother’s health than the alternatives. When experts disagree, who do we want making decisions about what best serves our health? The physician at the bedside, or politicians and judges thousands of miles away? This question encapsulates a basic fear of many Americans, not only about abortion, but about health care in general. Upholding the constitutionality of the law, Justice Anthony Kennedy’s opinion nonetheless acknowledged this fear, indicating his willingness to consider a challenge to the law “as applied” in a case or set of cases where the woman’s health is indeed at risk.

Life versus choice. Personhood versus bodily health and integrity. Women versus unborn children. Are we in for another thirty years of abortion wars? I think the Court was right in upholding the act’s constitutionality. At the same time, I think the law itself will exacerbate conflict over core values rather than ameliorate that conflict. But maybe there’s another way. Is it possible, for example, to design a law that prohibits a range of late-term abortions, while at the same time including a clear and defined health exception? Would such a law be upheld by the Roberts Court? Perhaps. Such a law would not satisfy activists on either side. But it would nod toward both sets of core values: it would highlight the humanity of unborn life while recognizing that secular law should not require a woman to sacrifice her fundamental physical integrity to carry her baby to term. Maybe that’s a step toward a workable compromise. But I’m not holding my breath.