Whose Life Is It Anyway? Part II: The Ethical Case Against Late Term Abortions

I’ve always considered myself supremely pro-choice and I’ve written passionately about the issue in previous blog posts.  But a recent series of events has caused to re-evaluate exactly where I stand in the pro-choice landscape.

A few weeks ago, a Philadelphia grand jury indicted Dr. Kermit Grosnell for a number of abortion-related crimes, including brutally executing babies who were born alive, and gross medical malpractice which led to the death of at least one pregnant mother.  The vast majority of the charges are sufficient to horrify people on all sides of the abortion debate, and most would agree that these allegations warrant a vigourous prosecution.  But several of the charges stem from abortions where the only crime committed was that the procedure took place after the 24-week cutoff imposed by the state of Pennsylvania.

Most states have similar laws against these so-called late term abortions, with the justification being that six months is enough time for a woman to make up her mind, and if she procrastinates beyond this point, the state will make the decision for her.  The 24-week threshold also coincides roughly with the point at which the fetus would have a good chance of surviving outside the womb.  In this way legislators have sought to strike a compromise by upholding Roe V. Wade while placating the pro-lifers, who believe that a six-month-old fetus is a full human being with a right to life.

In response to the news, Slate contributor William Saletan issued a challenge to those who oppose all legal limitations on abortion, people who he confrontationally refers to as “abortion absolutists”.  The challenge was this.  If there should be no time limit on when a woman can legally access abortion, should all the relevant charges against Dr. Grosnell be dropped?

This salvo set off a heated exchange that spanned several blog sites.  Though almost all who weighed in identified themselves as being pro-choice, respondents appeared to be split down the middle with roughly half of them saying there should be no limits, and the other half saying that once the fetus has become a “viable” baby, aborting it would be unethical.

Saletan, who I would describe as an abortion centrist, is of the view that abortion should be illegal after the 24-week cutoff because at that point the fetus is a viable baby.  Surprisingly, I tend to agree with him.  Interestingly, Canada is one of the few countries on Earth where there are no legal limits to abortion.  In theory a Canadian woman can legally obtain an abortion in the ninth month of her pregnancy (though it’s unlikely that she would be able to find a doctor willing to carry out the procedure).  That puts me in the unenviable position of being to the right of the conservative Harper government on this particular issue[1]. Nonetheless, I think the viability argument has merit, and here’s why…

Pro-lifers tend of frame the argument as one in which the rights of the fetus must be balanced with the rights of the woman.  Many of the pro-choice commentators arguing in favour of a cutoff date have fallen into this trap.  They tend to imply that once the fetus can survive outside the womb, then terminating it becomes tantamount to murder.  Personally I wouldn’t go that far, but I think there’s a much better rationale for denying abortions past the viability threshold.

My position on abortion has always been rooted in my belief in self-determination for all individuals.  All women have a right to exercise agency over their own bodies, and the state has no right to force a woman to play the role of incubator for 9-months, regardless of whether or not she caused her pregnancy through a consensual act.

I’ve never taken a position one way or the other as to whether a fetus constitutes a full human being with rights equal to those of the mother.  I have no qualms in saying that zygotes, blastocysts and embryos are by no means full humans and should not be given the same rights as extra-amniotic citizens.  However, I concede that once the fetus begins to develop a spine, an immune system, and a brain, then the question of whether or not it constitutes a full human being becomes murky.

But to me that’s all beside the point.  The fact of the matter is that women have the right to make decisions about their own bodies, and if a women decides she no longer wishes to play host to the fetus, she has the right to have it expelled in a way that maintains her health and safety.  This is true even if that fetus is a full human being, and even if expulsion will inevitably cause the death of that human being.  The woman’s self determination trumps all.

Interesting anecdote about this point…I recall a debate I was having with a co-worker around 7 or 8 years ago.  He was, and I believe he still is, a devout Muslim and so was vehemently opposed to all abortion.  I explained to him why I thought it was unethical to force a woman to carry a fetus against her will.  In response, he illustrated his position with an analogy.  He pointed out that Canada cannot expel refugees to countries where there is a strong chance they will be killed. At the time I thought he had made a good point.  I personally liked the fact that Canada didn’t condemn refugees to certain death by turning them away at the border.

At the time I either wasn’t informed enough on Canadian and international law, or I simply wasn’t quick enough on my feet.  But today the rejoinder to this point couldn’t be more obvious.  Canada can banish refugees back to countries where they will face death.  In fact, we do it all the time.  The correct assessment is that Canada chooses, as a matter of domestic policy, to grant asylum for refugees who can sufficiently demonstrate that returning to their country of origin will result in death.  But no outside governing body is forcing us to do so.  Indeed, if NATO, the US or the UN ever tried to dictate to us which refugee applicants we must accept, this would be seen as a gross infringement on our national sovereignty.

Similarly, a pregnant woman should have the right to choose whether or not to terminate a pregnancy without interference from the government.  Anything less is a flagrant infringement of her individual sovereignty.

So with all that being said, how could I possibly be opposed to late term abortions?  Well the answer is quite simple.  Respecting a woman’s right to self determination means that she can terminate a pregnancy at any time by having her fetus expelled.  In the first 24 weeks of pregnancy, expulsion will likely lead to the death of the fetus, therefore the most humane course of action is to terminate the fetus as quickly as possible.  Usually this is done inside the womb prior to removal.

But once it is established that the fetus could survive outside the womb, then I no longer believe the woman has the right to determine the fate of the fetus.  She can still demand that the fetus be removed (self-determination requires that she retain this right), but she has no right to demand that the fetus be removed in a way that results in its death.  At his point, granting the woman the power to determine, not only her fate, but also that of the viable fetus, is essentially granting her the power to sanction the execution of a viable person.  Therefore it is no longer an issue of self-determination.

In fact, some late term abortions inadvertently result in the birth of a live child.  Should the woman be free to demand that this fetus then be killed?  I personally don’t see a huge difference between killing a viable fetus inside the womb and killing that same child outside the womb.

Having said all that, allow me to proceed with my second apparent about-face.  Although I’m critical of late-term abortions, I’m not ready to start advocating for a change in Canadian law just yet.  There are several reasons why enacting American-style time limits on abortions is problematic, both from a pragmatic and logistical standpoint, as well as from a human rights standpoint.  Here are a few.

1)      Forced Gestation

In all the arguments presented above, I’ve upheld the belief that the woman should be free to end the pregnancy by having the fetus removed at any time.  But if this removal takes place in the third trimester and is performed in such a way that the child is delivered alive, then we may still be exposing it to all the health risks, both long term and short term, that come with premature birth.  The alternative is to force the woman to carry the child for the remainder of the pregnancy, or at least until 8 ½ months (or however long it takes until it is certain the child will have an equal chance at a clean bill of health).  Saletan and the others who favour time limits seem to be okay with this.  Reading between the lines, I gather that they see this as an acceptable punishment for the woman’s reckless procrastination.  After all, why should the fetus have to suffer the possibility of a life wrought with health complications because of the mother’s indecisiveness?  I understand this argument and I support it to some degree, but I’m still not comfortable with forced gestation at any time simply because it does infringe on the woman’s right to self-determination.

2)      Forced Labour or Surgery

The other side to that coin is forced surgery.  If the state wishes to uphold the right of the woman to end the pregnancy, while preserving the life of the fetus, this may mean that many woman will be forced to undergo cesarian-sections or other invasive medical procedures against their will.  In practice, some women faced with this decision will choose to wait until the fetus is mature enough, give birth naturally and then put the child up for adoption.  At the same time, late-term abortions are clearly no walk in the park, so it’s unclear whether forcing a woman to birth a live child in the post-24-week period would be significantly more physically taxing to the woman than simply allowing her to get an abortion.  In fact, many late term abortions are just like child birth with dilation of the cervix followed by hours of labour with pushing and the whole nine.

Any government policy would have to take into account the statistical and scientific data to determine whether forcing a premature delivery (whether naturally or by surgery) would cause a significant increase in undue harm to the mother.

3)      Limited Access

Most of the pro-choice people who are in favour of time limits acknowledge that in many cases the woman is forced to seek a late-term abortion for reasons that are beyond her control.  If a woman can demonstrate that she’s been proactive in either seeking out counseling to help her make her decision, or simply trying to schedule an appointment with an abortion provider and has been held up by bureaucratic hurdles, then the delay was clearly no fault of her own.  Any law limiting access to abortions based on a time limit must allow for exceptions in these cases.

4)      The Slippery Slope

Those who argue against time limits warn that allowing the government to impose limits of any kind is a slippery slope which will lead to further curtailments of women’s reproductive rights.  This is an important point.  Especially considering that what is considered “viable” today might not be the same in twenty years.  Given the rapid pace at which medical science and technology are progressing, there may come a time when even a one-month-old fetus will have a high probability of surviving outside the womb.  In this case would we ban abortion altogether and tell women that if they don’t catch it with the morning after pill, they’ll be forced to carry their baby for the next eight to nine months?  I certainly hope not.

This whole debate serves to underscore the complexity of the abortion issue and the difficulty in constructing policy that respects the rights of all those involved.  I still consider myself pro-choice and I’m confident I’ll never be one of those ideologues who insist that life begins at conception.  But I now realize that the issue can’t be settled by a single edict or by one supreme guiding principle.  I’ve always referred to the pro-life camp as “anti-choice” because they believe in eliminating a woman’s right to choose.  But it seems the pro-choicers also house a small group of absolutists who claim that if you don’t support absolutely unlimited choice, then you’re not really pro-choice at all.  According to them, we shouldn’t be able to choose where we’re situated on the pro-choice spectrum.  Coincidentally, I don’t find their ideology very pro-choice either.