Nine days after June 24 this year, with strict anti-abortion laws already in effect in some states, my Dobbs euphoria got dissipated to an extent when I read an article by a journalist for the Arizona Republic:
“Today’s [Supreme Court] is restarting the game where it always belonged – in the legislatures. But you can’t restart this game. Roe has been law for five decades, long enough for Americans to grow accustomed to legalized abortion. Roe was an enormous head start for the left.
“So large that in Texas, today’s flagship of American conservatism, 78% of those recently polled said abortion should be allowed in some form while only 15% said it should be never permitted, according to a survey by the University of Texas at Austin.
“States that do not quickly provide for legal abortion will face new coalitions of voters who will see that they do. Blackmun paved the way in gold for the left to eventually win in every state legislature.” (bold added)
(I disagree with characterizing pro-choice as “left,” but that is not the main thing here.)
Post-Dobbs, the Indiana legislature and governor have enacted very thorough protections for the unborn. In South Carolina the legislature and governor may be poised to do the same. But in Kansas, where “coalitions of voters” directly decided, it appears – even though a lot of interpretation is in order – that we have seen what the journalist predicted.
Though republics are preferable to direct democracies, it would look bad for the pro-life side to try to avoid decisions by popular vote. Whether geared toward state constitutions or state-level laws, we can expect to see more and more referenda. That could soon happen in Indiana, for instance, in spite of what the legislature has just done. And in the short term, we have to expect outcomes in some states (even if not in all states as the journalist sweepingly predicted) that are less pro-life than we would have liked.
(For the long term, I think the fact that abortion intentionally kills an innocent human being, and that the wrongness of that killing cannot be overcome by bodily-rights arguments, or identity arguments, or in any other way, will eventually be accepted by almost everyone. But we know that that will take some time.)
Wherever we have to aim for outcomes that are less pro-life than we would have liked but are nevertheless the best that are possible, we have to think in terms of compromise. When we speak the word “compromise,” we might picture pro-life leaders and pro-choice leaders facing each other in a room and making offers and counter-offers. But that is not the way things work. Instead, we pro-lifers may have to compromise on our own real desires for the unborn in order to draft future ballot initiatives that will be more winning propositions than the one in Kansas.
Having reconciled ourselves to the compromise idea, the next problem that arises is that “a middle ground” is usually framed in terms of gestational age – that is, if an abortion ban from conception, with minimal exceptions, is not possible for us, we usually begin to think, Should we propose a heartbeat law, or an eight-week law, or a twelve-week law (which, looking at Europe, might be particularly achievable)? What I want to argue here, however, is that rather than seek compromise along that usual gestational-age spectrum – which is implicitly a gestational-age spectrum of the moral status of a human being – we should instead seek compromise along a spectrum of bodily suffering and bodily risk involved for a pregnant woman when she carries to term. A gestational-age compromise is the wrong kind of compromise. There are three reasons:
- 1. Embracing, which often involves praising, a gestational-age compromise suggests that we pro-lifers don’t actually believe that the early unborn have the same moral value as the later unborn (or as born people). It thus bankrupts the most compelling philosophical basis or bases for the pro-life position.
- 2. Aiming for gestational-age compromises will result in a rate of abortion higher than necessary.
- 3. Aiming for gestational-age compromises will not defuse the public furor that is building up about injuries to women caused by pro-life laws, but conspicuously aiming for compromises along the spectrum of bodily suffering and bodily risk for pregnant women will do that.
Let’s spell out these three reasons for deciding to seek compromise along one of the two spectra rather than along the other:
1. Pro-lifers have already too many times, in their pragmatic embrace of proposed gestational-age compromises, used descriptors such as “common-sense laws” for laws that imply that an early unborn is less deserving of protection than a later-stage unborn. Is that implication what we really want to characterize as common sense?
That implication bankrupts the most compelling philosophical basis or bases for the pro-life position. By “the most compelling philosophical basis or bases for the pro-life position” I mean the future-of-value argument, arguments based on the sanctity-of-life concept, and the equal-rights argument used by the Equal Rights Institute. We bankrupt or undermine all of these when we glorify laws that suggest that an early unborn is less deserving of protection than a later-stage unborn. A compromise along the other spectrum will not have this effect.
2. Let’s suppose that when we seek compromise in order to win broad public support, we aim for a 50-50 compromise – that is, a compromise that will have the effect of making illegal half of all the abortions that women would otherwise decide to get, and leave the other half legal. In that case, if we’re using the gestational-age spectrum, the limit that might immediately spring to mind would be twenty weeks, halfway through pregnancy. It takes just a little reflection, however, to remember that late-term abortions are not typical and that that limit would in fact allow perhaps 98.5% of proposed abortions to proceed.
According to Dr. Michael New, the Texas Heartbeat Act cut abortions in Texas by about half (many intended abortions that did not occur in Texas no doubt did occur when the women went to other states, but the point is that about half of abortions became illegal in Texas itself). A fair compromise, right? But to voters who haven’t thought deeply, the six-week mark at which the “fetal cardiac activity” begins will seem extremely early in pregnancy and not fair at all; and in fact polling shows that most voters in most states would not be ready to accept that gestational-age limit. So the age limit will be pushed back, and a relatively small percentage of the unborn will be protected. I call that “an unnecessarily high rate of abortion” – I think we can do better, and that a compromise along the other spectrum will in fact have better results.
3. What about my third reason – that compromise along a spectrum of bodily suffering and bodily risk for pregnant women will defuse a certain public furor that is building up? First, the basis for such compromises already has some precedent, so let’s start with that precedent.
Here in Missouri, where I sometimes stay, the state attorney general “signed the state’s ‘trigger ban’ law minutes [after the Dobbs opinion was released]” – the first trigger ban to go into effect, I believe. The law, HB 1266, contains a precedent for making exceptions based on a spectrum of bodily suffering and bodily risk for a pregnant woman. It provides:
“No person shall perform or induce . . . an abortion [after a certain gestational age] . . . unless . . . the patient has a condition that . . . so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.”
The laws of numerous other states as well contain language very similar to “serious risk of substantial and irreversible physical impairment of a major bodily function.” And I personally think that we could further expand that exception and still not run into philosophical inconsistency with our perception of the unborn, at any stage, as full-fledged members of our human family. I explain my thinking here.
A 50-50 compromise (or whatever degree of compromise seems unavoidable), however, might require expanding that kind of exception more than would be philosophically consistent with full moral status for the unborn. Like a gestational-age compromise, that would be a pragmatic compromise, a political compromise. But it would be a compromise on a spectrum where something short of a total ban makes philosophical sense, instead of on a spectrum that we feel does not even exist, that is, a gestational-age spectrum of the moral status of a human being.
Here a woman tells her own experience with Missouri’s trigger ban. She tells it with a very pro-choice or pro-abortion mindset, never making any reference to the possible value of her child’s life, but we have to deal with some of it nonetheless:
“I already have five children, three of whom are my own and two are my stepchildren. I love them with all my heart, but my partner and I didn’t plan to grow our family. First, we couldn’t afford to, and second, I have had difficult pregnancies, and I couldn’t put my body through that again. I decided that from the moment I gave birth to my last child. . . . As I said, my health was endangered by being pregnant. In my other pregnancies, I’d experienced intrahepatic cholestasis, a painful liver condition that causes intense, unbearable itching. This condition wasn’t just excruciating but terrifying, as babies whose mothers have ICP have a higher chance of being born prematurely or stillborn.”
Since Roe was overturned and trigger bans and other tough pro-life laws started to go into effect, the media have published a slew of stories alleging sufferings for women similar to those the Missouri woman says she would have undergone. Certainly the pro-choice side will do whatever it can to create a public furor, and will do so with the hope of creating opposition to pro-life laws overall, not only a demand for greater exceptions. Publicizing the tragic deaths of some women who defied anti-abortion laws before Roe v. Wade (assisted by a big exaggeration of the numbers involved) was probably the biggest factor that created public sentiment against abortion restrictions at that time. It seems that the same pro-choice playbook is being teed up again, and we have to pre-emptively address it. The injuries and feared injuries being mostly highlighted in the recent reports would be from obedience to the pro-life laws, not from breaking them, but either way the idea of creating a furor would be create opposition to pro-life laws: those already in effect, any tough new laws to be proposed, and even any compromises to be proposed – if those compromises are along the gestational-age spectrum.
But it seems to me almost sure that if compromises are proposed along the spectrum that I have suggested, the broader health exceptions/exemptions in such laws would help defuse the furor.
Getting back to the Missouri woman’s presentation: the “couldn’t afford to [grow our family]” part is not really valid, because HB 1266 does not require any woman to raise any child (nor does any US pro-life law). Moreover, to kill a child because there’s a chance that it may be stillborn doesn’t make much sense. But when we set out to require this woman to carry to term, we can’t ignore or fail to be wrenched by “I have had difficult pregnancies, and I couldn’t put my body through that again. . . . In my [three] other pregnancies, I’d experienced intrahepatic cholestasis, a painful liver condition that causes intense, unbearable itching.” Even to the extent that a c-section might alleviate her situation, that is not an insignificant thing to ask either.
If it’s true that pro-life laws can require women to undergo more physical suffering or run more risk than if they had aborted, that is not a pretty picture for us to face. And certainly the laws will in fact often have that effect to an extent even in cases of normal pregnancy. But society cannot abdicate its responsibility for either of the two parties involved in a pregnancy. Whenever there is an unwanted pregnancy, there is rarely going to be a perfectly happy solution. We are forced to seek the least of all the evils, and we need to always mentally frame our efforts in that way. The public, too, might appreciate the pro-life side more if we don’t try to prettify the situation. Laws written to save the lives of unborn babies cannot, sadly, both save the lives of the babies and guarantee not to cause women more physical hardship than if they had aborted. Pro-life laws will be to the advantage of women in other ways, but they will disadvantage pro-choice women in terms of risk and physical suffering.
Intrahepatic cholestasis seems clearly not to reach the standard of “substantial and irreversible physical impairment of a major bodily function.” Does it reach the somewhat lower standard that I feel would not be philosophically inconsistent for us? I don’t have the medical knowledge necessary to determine that, and moreover, in determining that, there is some significance in the fact that I as a male need never myself fear developing that condition through pregnancy. Since there are many pro-lifers who can get pregnant and many who have been pregnant, I would defer to them and to medically knowledgeable pro-lifers for that sad determination – sad either way. But my main point would be that regardless of philosophical consistency, we could consider an exception for cases such as that woman’s if necessary pragmatically, if necessary as a compromise. We could agree to make abortion automatically legal for any woman like her at high risk for something like intrahepatic cholestasis, or who has already carried to term three times. (The latter exception not, of course, with the idea that she has “done her part” to propagate the species, but with the idea – for compromise purposes, if nothing else – that her body has been stressed as much as is really safe.)
Compromise might or might not be necessary in Missouri if it comes to a popular vote, but very strict pro-life laws do seem to be unacceptable in Kansas, and there such a compromise might be workable and would certainly be better from our point of view than the present status quo (abortion up to twenty-two weeks).
An unborn child with a heartbeat is no more human and no more a person, by a meaningful definition of “person,” than an unborn child whose fetal cardiac activity has not yet started. Several state legislatures seem to have understood this, and that is good, but I fear that if the day comes that those legislators and the pro-life voters of those states have no alternative but to compromise, they will compromise by settling for a heartbeat law or an eight-week law or a twelve-week law. Such a law too would be better than the present Kansas status quo, but it would carry the three flaws covered by my 1, 2 and 3 above.
We may compromise wherever and whenever necessary to save unborn lives, but only as a last resort should we compromise around gestational age, which is likely to leave present abortion rates almost as they are and which sends the wrong signal about criteria for human moral status or personhood, and would do nothing to defuse a public furor about physical harms to women. Among other things, the more understanding there is by the public that the unborn is a full-fledged member of our human family – an understanding that would commence with their believing that we are serious when we say it – then the more the very demand for abortion will decrease, as people see why abortion is wrong. Let’s use whatever channels we have to get this message to the Susan B. Anthony List, Americans United for Life, the National Right to Life Committee, Live Action, Alliance Defending Freedom, and Students for Life, among others.