#465: Time Is Running Out for Roe v. Wade

  Roe v. Wade was always a ticking time bomb, and although it’s had a very long fuse, it’s about to go off.

No, I’m not talking about the prospect of a conservative SCOTUS majority overturning the case. I’m talking about the natural outcome of the case itself.

Two major features characterized the legal argument of the majority in Roe v. Wade.  First was the idea that privacy was an implied right under the US Constitution which protected women from the intrusion of government.  Second, it determined that the “viability” of the fetus was the dividing line between the woman’s private interest before viability, and the state’s interest after.

Of course, there were two risky implications in using the idea of “viability.” First, determining when was “before” and when was “after” might prove to be difficult.  And in fact the court chose an arbitrary method: it divided pregnancy into trimesters, and determined that the first was “before,” the third trimester was “after,” and the second trimester was someplace in between.

The second risk is that the very idea of “viability” was, in reality, a sliding scale, a moving target.  The court decided Roe v Wade in 1973, when fetuses rarely survived outside a mother until the third trimester--that is, after 24 weeks.  A fetus born prematurely at six months almost surely died.

As time passed, however, and medical technology and prenatal care evolved, early births received better and better treatment, and premature babies survived at younger and younger ages.  By the 21st century, it was common for babies born at 24 weeks and even younger--that is, in the second trimester--to survive.  Babies born at 24 weeks now have a 40% chance of survival, and babies born at 23 weeks still have a 17% chance of survival.  This represents a remarkable shift in “viability” in the 44 years since Roe v. Wade.

 But now comes a much more dramatic development, with the recent report of the invention of an artificial womb. (https://www.theatlantic.com/health/archive/2017/04/preemies-floating-in-fluid-filled-bags/524181/) Until now, the device has been used only with baby lambs, but the inventors reported it would soon be available to assist “premature babies.”

To be this seems to be a case of under-reporting.  For if we’re really going to have an artificial womb, the implications go far beyond what we now think of as premature babies.  Such a device potentially offers the prospect of bringing fetuses to term in pregnancies much shorter than the current “viability” limit:

Within a decade or so, babies born between 23 and 25 weeks might not be thrust into the harsh outside world at all. Instead, they may be immediately plunged into a special bag filled with lab-made amniotic fluid, designed to help them gestate for another month inside an artificial womb.

--the Atlantic April 25, 2017

The current device is quite primitive, but will surely evolve. Dear reader, imagine the practical impact of a device that could, for example, offer survivability to a fetus in mid-or even early second trimester.

This impact was explored long ago in a hypothetical discussion that was part of a popular Boston TV show called “Miller’s Court.”

Arthur Miller, a Harvard law professor (now at NYU law school), used the program from 1979-1988 to discuss legal issues in a quasi-courtroom forum, usually cross examining several panelists at once.

On the occasion I have in mind, the issue under discussion was abortion.  The panel included then- Congressman Barney Frank and feminist writer Gloria Steinem.

Miller posed this hypothetical question: suppose that an artificial womb could be used to bring a fetus to term AFTER the pregnancy was terminated by abortion. Would that mean that the mother would lose her legal standing, and the state would gain a legal interest in preserving the child’s life? Both Barney Frank and Gloria Steinem agreed that to be the case. They said yes: at that point the state could act to save the child, and the mother’s right to decide would be gone (presumably because her privacy right had ended).

Two noteworthy points here: first, Frank and Steinem were answering a really hypothetical question, which at the time (the mid-1980s) had no practical importance.  Second, it was nonetheless stunning to hear two such prominent pro-choice advocates take the position they took. In effect, they were limiting the women’s control over the effects of her choice, once the fetus was outside her body.

You see, this discussion revealed a generally overlooked element about abortion itself.  It demonstrated that an abortion is really two events at once: it is the termination of a pregnancy, and it is the death of a fetus.  Generally, these two events are inevitably connected; one cannot choose one without the other.  And so most discussions about abortion jumble the two together, with pro-lifers opposing the killing, and pro-choicers defending the woman’s right to end her pregnancy.  In such discussions, the two sides inevitably talk past each other--which is exactly what has been happening for more than 40 years.

But Miller’s hypothesis opens the possibility of speaking of these two elements separately.  In other words, what if women could terminate a pregnancy without killing the child?  Then what?

What Frank and Steinem were essentially agreeing to was the idea that, if it were possible to terminate pregnancy without causing a death, then the resulting life would become a matter, not of the mother’s privacy, but a matter of public interest.  At that point, the state could take over the attempt to save the child.

But if Miller’s hypothesis highlighted the basic fact that abortion does 2 things (terminates a pregnancy, but also kills the fetus)--now it seems the hypothesis itself may soon become real. For now we DO have an artificial womb, and now it may soon be possible to terminate pregnancy yet save the fetus!

What this means that the artificial womb completely explodes the notion of “viability” built into Roe v. Wade.

It opens the prospect that women can retain the right to choose an abortion, but lose the right to kill their fetus.  Since that latter right depends on the location of the fetus within the woman’s body, the artificial womb opens up the entirely new horizon of allowing the fetus to survive outside woman’s body, where a mother no longer has legal jurisdiction.

Depending on how effective the artificial womb is, and how quickly it evolves, this could mean that many abortion cases which are currently treated as private under Roe v. Wade could become legally controversial under the same case.  For example, what if a woman’s partner (or mother or father or sister or brother) sues to save the child using an artificial womb?  What if a state attorney general sues to enjoin any pregnancy longer than, say 12 weeks, to be subject to state review and intervention? 

None of this would require a reversal of Roe v. Wade.  Theoretically, it could lead to cases where the woman has her abortion but the child survives. 

Not only would this prevent many deaths, but it would also pose a new challenge for both the pro life and pro choice communities.  For pro-lifers, it would mean reconsidering their attitude to abortion itself, recognizing a woman’s right to terminate the pregnancy as long as someone else takes responsibility for saving the child.  For pro-choices, it would pose a difficult challenge: acknowledging that a woman’s right to choose extends only to the termination of pregnancy, not to the fate of the child produced by the pregnancy.  In individual cases, this could mean that a woman might choose to abort with the knowledge that her child survive, and grow, and live in the same world she does, without her consent, and without any legal recourse.  In other words, this could mean that choosing abortion means relinquishing any voice over the future life of one’s own child.

None of this represents a change in abortion itself.  None of this represents a change in Roe v. Wade.  This would simply be a long-term final outcome of a time-bomb decision that has been ticking away for more than 40 years.  And it would finally bring to surface the long overlooked reality that abortion is two things at once, and that each side of this long and anguished debate has been arguing about only one of them, and ignoring the other.

Would this mean the end of the debate?  I suspect not.  Would it make people happier?  I suspect neither side would be fully satisfied, since one side would continue to object to the first trimester abortions, and the other side would feel that somehow a woman’s freedom was being curtailed.

But even if the debate continued and both sides remain unhappy, one thing is sure: Sunday, somewhere, each of us might well meet someone who owes their life to an artificial womb, and who can say to us “I am an abortion survivor.”

 © Bernard F. Swain PhD 2017

#163: Finding Common Ground on Abortion

After yesterday's protests against Roe v. Wade in  Washington, DC, I am replaying this piece, written 7 years ago but sadly still up-to-date. 

    Last week marked 33 years since the Supreme Court’s landmark Roe V. Wade decision on abortion. And every year about this time, I get to thinking about our complex path on abortion over the last 40 years.

Over the years, I have always considered myself pro-life, but I have discovered that I do not always share the views of other “pro life” advocates.  Most public discussion of abortion quickly reduces itself to an ugly conflict between people who have no interest in understanding one another, in finding a common ground, or in working together to solve the challenge that abortion poses.

That is why my best memory concerns the conversation group I belong to.

For 11 years we’ve been gathering monthly to discuss a single topic for entire evening, but we did not choose “abortion” for nearly five years.

It turned out that we had been avoiding the issue, both as individuals and as a group. Some of us assumed there was no point in such a discussion, since most of us were Catholics and would all agree anyway. Others assumed just the opposite: that entrenched differences would surface immediately, so there would be no basis for dialogue. One way or another, we were all assuming that we would suffer the same kind of paralyzing stalemate we saw in the public forum.

But we were happily surprised by what actually happened. In fact, when the evening was over, we all agreed on two things: First, we had avoided the issue needlessly and for too long. Second, we had just engaged in the best discussion of abortion any of us had ever heard.

What surprised us most about the discussion, I think, was that though we had differences, none were so far apart that we could not even communicate.  In fact, we quickly found that we had a great deal of common ground bridging our differences.

First, we acknowledged torn feelings.  For all of us, the era of legal abortion has raised difficult challenges, manifested many tragic stories, and left us feeling helpless to resolve a conflict that has divided our country for 30 years.

Second, we shared a common frustration with both sides of the abortion debate. We agreed that most pro life advocates let self righteousness impede real communication and progress—but we also agreed us that most “pro choice” advocates let their militancy stop communication too. The result was that, no matter what our opinions about abortion itself, we did not feel comfortable allying with such people.

Third, we discovered that we shared a common negative attitude toward abortion itself. None of us thought of abortion as something good—though some of us believed it should remain legal. We all wished there were less need for it, less recourse to it. For all of us, in fact, the ideal seemed to be a world in which no one would seek an abortion, even if they had the legal right to do so.

Fourth, we agreed that resolving the conflict in our country would probably NOT come from the victory of one side over the other. Instead, we guessed there would be no peace on the abortion issue until both sides uncovered some common ground upon which to build a consensus.

Fifth, we identified a key question: how does one change the behavior of an entire nation? In other words, how does real social change occur when values are in conflict?

We found ourselves using the example of a behavior where dramatic change has occurred within the last generation: cigarette smoking. We all knew that the percentage of American smokers has been shrinking for more than 30 years. We wondered how this had been accomplished, and whether the secret to that success could offer some clues as to what to do about abortion.

What seemed obvious to us, on reflection, was that over the years smoking has gone from something that people took for granted (in their homes, in public places, in advertising, in the movies) to something that can only be qualified as “socially unacceptable behavior.”

We all remembered smoke-filled parties, Marlboro ads on TV, white clouds of cigarette smoke hanging over every hockey game, the regular ritual of emptying ashtrays as part of housecleaning or car-cleaning. Now the main image is different: smokers huddled shivering like refugees in the doorways of office buildings catching a quick cold smoke during wintertime coffee breaks. And we all knew that any sign of smoking among us would bring swift scolding from our own children, who had been raised (if not brainwashed) to see our smoking as dangerous for them.

We all agreed that this was a dramatic and positive shift in public values and behavior. We wondered how it happened, and whether the same thing could happen on abortion.

At the time, the Massachusetts state government was sponsoring anti-smoking ads on television using the slogan “Let’s Make Smoking History!” As we discussed the success of that PR campaign, we came to two conclusions.

The first was: those of us who wanted abortion to be illegal admitted that, as a matter of history, legal prohibition has not proved an effective way to change people’s behavior. The obvious example to contrast with cigarette smoking was the example of alcohol: the Prohibition Era had not ended drinking in America but had only driven it underground and into the hands of criminals. The unhappy truth is, the same was largely true of the history of the legal prohibition of abortion. We admitted that no law has ever eliminated abortion, but has only driven it underground.

The second conclusion was: it is possible to reduce or even eliminate unwanted behavior once it becomes generally regarded as “socially unacceptable behavior.” Once the social norm shifts, people feel pressured to find alternatives to such socially unacceptable behavior--even if it remains legal.

We found ourselves wondering why no one had ever tried a campaign to “Make Abortion History!” It seemed to us that here was real potential for common ground. Many people who consider themselves “pro choice” will insist that they are not pro abortion, and would support efforts to reduce or eliminate abortion as long as “choice” remained legal. In fact, many of us believed that large numbers of “pro choice” Americans would embrace any social movement that would relieve them of the unwelcome dilemma of defending abortion itself.

For this point of view, the main obstacle to dialogue appeared to be the insistence on arguing over legal prohibition vs. protection as the key element in debating the abortion question. We had found that discussing abortion itself (why we did not like it and how our society could end it) produced a much more constructive dialogue and a lot more common ground upon which to build a consensus for action.

For Catholics, this raises a crucial point. While Catholics are obliged to oppose abortion and seek its elimination, nothing in our faith tradition requires us to believe that legal prohibition is the only tool that can accomplish this goal—or it even to believe that it is an effective tool. Prohibition’s effectiveness is not a matter of faith or morals; it is simply a matter of historical fact.

One can hold that prohibition failed in the past, and would fail again in the future, and still be a good Catholic who believes we should find better ways to protect the unborn and build a culture of life.

For our little, private conversation group, the sad thing was that this: we had found common ground among ourselves, and we even felt the clear opportunity for further constructive dialogue—but as we adjourned for the evening we knew the progress we had made among ourselves still seemed totally absent in the public forum.

Thirty-three years after Roe V. Wade, I am afraid that is still the truth.

© Bernard F. Swain PhD 2006

#373: Which Catholic Candidate?

It would be tempting—but wrong—to assume that one VP candidate represents our faith, while the other does not.

Last week’s Catholic media has been full of politics.  Everyone seems to be trying to prove that their Vice-presidential candidate is a better representative of Catholic teaching. We even have some bishops proclaiming that Joe Biden cannot receive communion in their dioceses.

We have known since summer that the presidential race featured two Catholic Vice-presidential candidates.  But only on October 10 did we get to compare and contrast Joe Biden and Paul Ryan face to face on the subject of their Catholic faith.

The Vice-presidential debate was nearly over when moderate Martha Radditz posed this question:

This debate is, indeed, historic. We have two Catholic candidates, first time, on a stage such as this. And I would like to ask you both to tell me what role your religion has played in your own personal views on abortion.

Please talk about how you came to that decision. Talk about how your religion played a part in that. And, please, this is such an emotional issue for so many people in this country...

Although the question focused somewhat narrowly on abortion--almost as though abortion is the only “Catholic” issue--it also offered a useful opening for two broader questions: 1. What difference does Catholic Social Teaching make in their respective political positions?  2.  Which candidate is more consistent and reflecting Catholic social teaching?

It is instructive, but also surprising, to start with the answers the candidates gave Radditz. In fact, both candidates answered “Yes, but…”

Paul Ryan said:

I don't see how a person can separate their public life from their private life or from their faith. Our faith informs us in everything we do. My faith informs me about how to take care of the vulnerable, of how to make sure that people have a chance in life.

Now, you want to ask basically why I'm pro-life? It's not simply because of my Catholic faith. That's a factor, of course. But it's also because of reason and science…Now I believe that life begins at conception.

That's why -- those are the reasons why I'm pro-life.

Joe Biden said:

My religion defines who I am, and I've been a practicing Catholic my whole life. And has particularly informed my social doctrine. The Catholic social doctrine talks about taking care of those who -- who can't take care of themselves, people who need help. With regard to -- with regard to abortion, I accept my church's position on abortion as a--what we call a de fide doctrine. Life begins at conception in the church's judgment. I accept it in my personal life. 

But I refuse to impose it on equally devout Christians and Muslims and Jews, and I just refuse to impose that on others…I do not believe that we have a right to tell other people that -- women they can't control their body. It's a decision between them and their doctor…I'm not going to interfere with that.

In other words, both candidates were saying, in effect, that Catholic Social Teaching makes no difference in their position on abortion.  Ryan would be pro-life on scientific and medical grounds, even if he were not Catholic.  And Biden chooses not to apply Catholic teaching on abortion to public policy.  So in both cases, their political positions are not different because of their Catholic faith.

Biden did mention Catholic Social Doctrine more broadly, implying that his overall politics better reflect Catholic Social Teaching than Ryan’s politics do.  But the debate ended there. This, of course, begs the question: what if we dig deeper?

CrossCurrents readers know my general take on the relation between Catholic Social Teaching (CST) and our major political parties: CST does not fit into conventional political categories of “liberal” or “conservative.” We cannot expect CST to favor either the Democratic or the Republican platforms.

Consider some major 2012 issues.

“Big Government” or “Small Government”?  The general dividing line between these parties, for example, concerns the size of government: Democrats favor a larger, more “progressive” government, while Republicans favor a smaller, less “intrusive” government.  But CST has no preference in principle.  That’s because CST has no doctrine on the best size for government. 

Rather, the chief principle here is “the common good.” All government must serve the common good as much as possible--and how it does that is a matter of prudential judgment.  Because government is just a means to achieve the end of the common good, it must leave room for other institutions (from families and local communities on up)--but it must also be powerful enough to address social needs that other institutions cannot meet.  In CST, there is no magic formula for this.

Taxes: Up or Down?  Another debated issue in 2012 is taxes. On this, as on government itself, CST does not lay down any grand principle.  It regards taxes as the main source for the funding that government needs to do its job.  If that job is promoting the common good (in collaboration with other institutions), then taxes are good insofar as they enable the common good, and paying taxes is one way that we, as citizens, support the common good. 

Whether any citizen should pay more or less depends on whether such change would enhance or hinder progress toward the common good of all.  This means that raising and lowering taxes is never good or better in principle, but depends on the specific case.

We may debate, then, whether a specific tax hike or tax cut better serves the common good.  But politicians who pledged never to raise taxes (as Ryan has)  are demonizing taxes, contrary to CST, rather than seeing them as a potential instrument for good.

Wealth and Poverty.  We hear a lot in 2012 about the “middle class” and “job creators.” But neither side says much less about the “working class” or the poor.  Yet CST favors attention to the poor as a top priority.  Moreover, CST decries extreme income inequality between classes.  US inequality has grown steadily since 1970, and ranks worst among advanced industrial nations. Yet any attempt to close that gap by redistributing wealth, something CST favors, generally gets labeled “socialism.” In this respect, CST falls to the left even of the Democratic Party.  As Benedict XVI wrote: “we cannot remain on the sidelines in the fight for justice.”

Human Rights. The same is true for human rights: As a general rule, the Church’s list of human rights is considerably longer than either US political party, for while Americans tend to think only of civil rights (voting, public access, freedom from discrimination, due process, First Amendment rights), Catholicism also embraces many economic and social rights: education, health care, just wages, labor rights, immigration.  On many such rights, our popes since 1960 have staked out positions well to the left of the Democratic Party. And these positions are not merely nice goals; they are matters of principle.

With all this in mind, I’m not terribly surprised that the debate revealed that, despite their rhetoric, the personal faith of our two Catholic candidates does not make much difference in their politics.  Like most American Catholics, they appear to get their politics from their parties and other secular sources, not from their Church (for example, see http://www.onourshoulders.org/ for Ayn Rand’s influence on Paul Ryan,). And like most Catholics, they reinterpret Catholic Social Teaching to fit their personal politics--or, on inconvenient issues, they ignore it all together.

© Bernard F. Swain PhD 2012

#288: New Pro-life Profiles

EXCERPT: Amid many surprises surrounding passage of Healthcare Reform came the last minute plot-twist from Rep. Bart Stupak. Stymied in his effort to insert ironclad language banning federal funds for abortion, he obtained an equivalent “ironclad” executive order from President Obama, and led his supporters in casting the decisive votes for House passage. The ban will continue not only under the protection of the Hyde amendment, but now under the direct authority of the President. The same authority George W. Bush used to restrict stem-cell research is now applied to abortion by Barack Obama.

This stunning development produced several consequences, and also contains several lessons which are relevant to Catholic Social Teaching.

…Second Lesson: Bart Stupak’s move has altered the political profile of the pro-life movement, by showing that one can be both pro-life and progressive.

Conservatives have mostly monopolized the pro-life platform, but Stupak (despite his public image) never fit the mold. …Stupak’s mold is actually the classic “Catholic Liberal Democrat” we’ve known since the New Deal.

Since Roe V. Wade in 1973 this classic mold has broken down, as the country’s polarization between “pro life” and “pro choice” drove many Catholics to vote Republican – and led some (like RI legislator and Commonweal commentator David Carlin) to question whether a Catholic can be a Democrat at all!

Stupak has altered this dynamic, with his pro-life ratings (0% from NARAL, 100% from National Right to Life Committee). It is too soon to tell, but arguably he could offer a new profile for a style of pro-life progressive politician acceptable to both mainstream Democrats and mainline Catholics.

Third Lesson: Barack Obama has altered his own profile. …In one pen-stroke, Obama joined those banning federal funding of abortions while guaranteeing reforms that can reduce abortions. If Healthcare Reform does induce a significant decline in abortions, Obama will have accomplished more pro-life success than Presidents Reagan, Bush, Clinton, and Bush combined.

Fourth Lesson: Finally, this episode exposes two dark dimensions of the pro-life movement.

On the one hand, we have witnessed the fanaticism of those who scorn the bona fides of anyone who disagrees with them or fails to match their own private standards. After months of touting Bart Stupak as a champion of their cause, they now call him traitor and worse, threatening him and his family. Such fanatics render Stupak a kind of profile in courage, but also reveal the ugly undercurrent of violence within the pro-life movement.

On the other hand, we have seen the cynicism of those prepared to exploit the unborn to promote their own politics. Stupak himself described that cynicism in the days following his coup:

The true motives of many blogs and organizations claiming to be pro-life have become clear in recent days: to politicize life issues as a means to defeat health care reform...The pro-life groups rallied behind me -- many without my knowledge or consent -- not necessarily because they shared my goals of ensuring protections for life and passing health-care reform but because they viewed me as their best chance to kill health-care legislation.

Catholics everywhere should decry such cynicism. We reject using the unborn as bait to lure others to our politics, and we reject attempts to dupe Catholics into embracing anti-Catholic social policies just because they are wrapped in pro-life ribbons. For us, protection of the unborn must be a principle, not propaganda.