Theology Research Paper

Ethical Problems of Abortion Author(s): Sissela Bok Source: The Hastings Center Studies, Vol. 2, No. 1 (Jan., 1974), pp. 33-52 Published by: The Hastings Center Stable URL: https://www.jstor.org/stable/3527499 Accessed: 18-02-2020 18:28 UTC

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MORAL DISTINCTIONS, YES; DEFINING 'HUMANITY,' NO

Ethical problems of

abortion SISSELA BOK

HE RECENT Su-

preme Court decisions' have declared abortions to be lawful in the United

States during the first trimester of preg- nancy. After the first trimester, the state can restrict them by regulations protecting the pregnant woman's health; and after 'viability' the state may regulate or for- bid abortions except where the medical judgment is made that an abortion is necessary to safeguard the life or the health of the pregnant woman. But it would be wrong to conclude from these decisions that no moral distinctions be-

tween abortions can now be made-that

what is lawful is always justifiable. These decisions leave the moral issues of abor-

tion open, and it is more important than ever to examine them.

While abortion is frequently rejected for religious reasons,- arguments against

it are also made on other grounds. The most forceful one holds that if we grant that a fetus possesses humanity, we must accord it human rights, including the right to live. Another argument invokes the danger to other unborn humans, should abortion spread and perhaps even become obligatory in certain cases, and the danger to newborns, the retarded, and the senile should society begin to take the lives of those considered expend- able. A third argument stresses the danger that physicians and nurses and those associated with the act of abortion

might lose their traditional protective atti- tude toward life if they become inured to taking human lives at the request of mothers.

Among the arguments made in favor of permitting abortion, one upholds the right of the mother to determine her own fertility, and her right to the use of her own body. Another stresses, in cases of genetic defects of a severe variety, a sympathetic understanding of the suffer- ing which might accompany living, should the fetus not be aborted. And a third re-

flects a number of social concerns, rang- 1Roe v. Wade, United States Law Week 41,

1973, pp. 4213-33. Doe v. Bolton, Ibid., pp. 4233-40.

2See The Morality of Abortion, ed. by John T. Noonan, Jr. (Cambridge: Harvard Univer- sity Press, 1970), and G. H. Williams, "Reli-

gious Residues and Presuppositions in the American Debate on Abortion," Theological Studies 31 (1970), 10-75.

Hastings Center Studies, January 1974, Vol. 2, No. 1

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34 HASTINGS CENTER STUDIES

ing from the problem of overpopulation per se to the desire to reduce unwanted- ness, child abuse, maternal deaths through illegal abortions, poverty and ill- ness.

In discussing the ethical dilemmas of abortion, I shall begin with the basic con-

flict-that between a pregnant woman and the unborn life she harbors.

I. Mother and Fetus

Up to very recently, parents had only limited access to birth prevention. Con- traception was outlawed or treated with silence. Sterilization was most often un- available and abortion was left to those desperate enough to seek criminal abor- tions. Women may well be forgiven now, therefore, if they mistrust the barrage of

arguments concerning abortion, and may well suspect that these are rear-guard ac- tions in an effort to tie them still longer to the bearing of unwanted children.

Some advocates for abortion hold that women should have the right to do what they want with their own bodies, and that removing the fetus is comparable to cut- ting one's hair or removing a disfiguring growth. This view simply ignores the fact that abortion involves more than just one life. The same criticism holds for

the vaguer notions which defend abor- tion on the grounds that a woman should have the right to control her fate, or the right to have an abortion as she has the right to marry. But no one has the clear- cut right to control her fate where others

share it, and marriage requires consent by two persons, whereas the consent of of the fetus is precisely what cannot be obtained. How, then, can we weigh the rights and the interests of mother and fetus, where they conflict?

The central question is whether the life

of the fetus should receive the same pro- tection as other lives----often discussed in terms of whether killing the fetus is to be thought of as killing a human being.

But before asking that question, I would like to ask whether abortion can always be thought of as killing in the first place. For abortion can be looked upon, also, as the withdrawal of bodily life support on the part of the mother.

A. Cessation of Bodily Life Support Would anyone, before or after birth,

child or adult, have the right to continue to be dependent upon the bodily pro- cesses of another against that person's will? It can happen that a person will re- quire a sacrifice on the part of another in order not to die; does he therefore have the right to this sacrifice?

Judith Thomson has argued most co- gently that the mother who finds herself pregnant, as a result of rape or in spite of every precaution, does not have the obligation to continue the pregnancy:

I am arguing only that having a right to life does not guarantee having either a right to be given the use of or a right to be allowed the continued use of an- other person's body-even if one needs it for life itself.3

Abortion, according to such a view, can be thought of as the cessation of con-

tinued support. It is true that the embryo cannot survive alone, and that it dies. But this is not unjust killing, any more than when Siamese twins are separated surgically and one of them dies as a re- sult. Judith Thomson argues that at least in those cases where the mother is in- voluntarily pregnant, she can cease her support of the life of the fetus without infringing its right to live. Here, viability -the capability of living independently from the body of the mother-becomes important. Before that point, the unborn life will end when the mother ceases her support. No one else can take over the protection of the unborn life. After the point where viability begins, much de- pends on what is done by others, and on how much assistance is provided.

3Judith Thomson, "A Defense of Abortion," Philosophy and Public Policy 1 (1971), 47-66.

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ETHICAL PROBLEMS OF ABORTION 35

It may be, however, that in considering the ethical implications of the right to cease bodily support of the fetus we must distinguish between causing death indi- rectly through ceasing such support and actively killing the fetus outright. The techniques used in abortion differ signifi- cantly in this respect." A method which prevents implantation of the fertilized egg or which brings about menstruation is much more clearly cessation of life sup- port than one which sucks or scrapes out the embryo. Least like cessation of sup- port is abortion by saline solution, which kills and begins to decompose the fetus, thus setting in motion its expulsion by the mother's body. This method is the one most commonly used in the second tri- mester of pregnancy. The alternative method possible at that time is a hys- terotomy, or "small Cesarean," where the fetus is removed intact, and where death very clearly does result from the interrup- tion of bodily support. If we learn how to provide life sup-

port for the fetus outside the natural mother's body, it may happen that par- ents who wish to adopt a baby may come into a new kind of conflict with those

who wish to have an abortion. They may argue that all that the aborting mother has a right to is to cease supporting a fetus with her own body. They may insist, if the pregnancy is already in the second trimester, that she has no right to choose a technique which also kills the baby. It would be wrong for the natural parents to insist at that point that the severance must be performed in such a way that others cannot take over the care and

support for the fetus. But a conflict could arise if the mother were asked to

postpone the abortion in order to improve the chances of survival and well-being of the fetus to be adopted by others.

Are there times where, quite apart

from the technique used to abort, a woman has a special responsibility to continue bodily support of a fetus? Surely the many pregnancies which are entered upon voluntarily are of such a nature. One might even say that, if anyone ever did have special obligations to continue life support of another, it would be the woman who had voluntarily undertaken to become pregnant. For she has then brought about the situation where the fetus has come to require her support, and there is no one else who can take

over her responsibility until after the baby is viable.

To use the analogy of a drowning per- son, one can think of three scenarios in- fluencing the responsibility of a bystander to leap to the rescue. First, someone may be drowning and the bystander arrives at the scene, hesitating between rescue and permitting the person to drown. Secondly, someone may be drowning as a result of the honestly mistaken assurance by the bystander that swimming would be safe. Thirdly, the bystander may have pushed the drowning person out of a boat. In each case the duties of the bystander are different, but surely they are at their most

stringent when he has intentionally caused the drowning person to find himself in the water.

These three scenarios bear some re-

semblance, from the point of view of the mother's responsibility to the fetus, to: first, finding out that she is pregnant against her wishes; second, mistakenly trusting that she was protected against pregnancy; and third, intentionally be- coming pregnant.

Every pregnancy which has been inten- tionally begun creates special responsi- bilities for the mother., But there is one

situation in which these dilemmas are pre- sented in a particularly difficult form. It

'See Selig Neubardt and Harold Schulman, Techniques of Abortion (Boston: Little, Brown and Company, 1972).

;But lines are hard to draw here. There are

many intermediate cases between the preg- nancy intentionally begun and, for instance, that resulting from carelessness with contra- ceptives.

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36 HASTINGS CENTER STUDIES

is where two parents deliberately enter upon a pregnancy, only to find that the baby they are expecting has a genetic disease or has suffered from damage in fetal life, so that it will be permanently malformed or retarded. Here, the par- ents have consciously brought about the life which now requires support from the body of the mother. Can they now turn about and say that this particular fetus is such that they do not wish to continue their support? This is especially difficult when the fetus is already developed up to the 18th or 20th week. Can they ac- knowledge that they meant to begin a

easing bodily

life support of a fetus or of anyone else cannot be looked at as a breach of

duty except where such a duty has been assumed in the first place.

human life, but not this human life? Or, to take a more callous example, suppose, as sometimes happens, that the parents learn that the baby is of a sex they do not wish?"

In such cases the justification which derives from wishing to cease life sup- port for a life which had not been in- tended is absent, since this life had been intended. At the same time, an assump- tion of responsibility which comes with consciously beginning a pregnancy is much weaker than the corresponding as-

sumption between two adults, or the so- cial assumption of responsibility for a child upon birth for reasons which will be discussed in the next section.

To sum up at this point, ceasing bodily life support of a fetus or of anyone else cannot be looked at as a breach of duty except where such a duty has been as- sumed in the first place. Such a duty is closer to existing when the pregnancy has been voluntarily begun. And it does not exist at all in cases of rape. Certain methods of abortion, furthermore, are more difficult to think of as cessation of

support than others. Finally, pregnancy is perhaps unique in that cessation of sup- port means death for the fetus up to a certain point of its development, so that nearness to this point in pregnancy argues against abortion.

I would like now to turn to the larger question of whether the life of the fetus should receive the same protection as other lives-whether killing the fetus, by whatever means, and for whatever reason,

is to be thought of as killing a human being.

A long tradition of religious and philo- sophical and legal thought has attempted to answer this question by determining if there is human life before birth, and, if so, when it becomes human. If human life is present from conception on, ac- cording to this tradition, it must be pro- tected as such from that moment. And

if the embryo becomes human at some point during a pregnancy, then that is the point at which the protection should set in.

B. Humanity

The point in a pregnancy at which a human individual can be said to exist is

differently assigned. John Noonan gen- eralizes the predominant Catholic view as follows:

If one steps outside the specific cate- gories used by the theologians, the answer they gave can be analyzed as a refusal to discriminate among human

GSee Morton A. Stenchever, "An Abuse of Prenatal Diagnosis," Journal of the American Medical Association 221 (July 24, 1972), 408.

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ETHICAL PROBLEMS OF ABORTION 37

beings on the basis of their varying po- tentialities. Once conceived, the being was recognized as a man because he had man's potential. The criterion for humanity, thus, was simple and all- embracing: If you are conceived by human parents, you are human.7 Once conceived, he holds, human life

has about an 80% chance to reach the

moment of birth and develop further. Conception, therefore, represents a point of discontinuity, after which the prob- abilities for human development are im- mensely higher than for the sperm or the egg before conception.

Others have held that the moment

when imnplantation occurs, 6-7 days after conception, is more significant from the point of view of humanity and individ- uality than conception itself. This per- mits them to allow the intrauterine device

and the 'morning after pill' as not taking human life, merely interfering with im- plantation.

Another view is advanced by Je6rme Lejcune, who suggests that unity and uniqueness, "the two headings defining an individual" are not definitely estab- lished until between two and four weeks

after conception." Up to that time it is possible that two eggs may have collab- orated to build together one embryo, known as a "chimera," whereas after that

time such a combination is no longer possible. Similarly, up to that time, a fertilized egg from which twins may re- sult may not yet have split in two.

Still another approach to the establish- ing of humanity is to say that looking human is the important factor. A photo of the first cell having divided in half clearly does not depict what most people

mean when they use the expression "human being." Even the four-week-old embryo does not look human, whereas the six-week-old one is beginning to. Re- cent techniques of depicting the embryo and the fetus have remarkably increased our awareness of the "human-ness" at this

early stage; this new seeing of life before birth may come to increase the psycho- logical recoil from aborting those who already look human-thus adding a powerful psychological factor to the med- ical and personal factors already influ- encing the trend to earlier and earlier abortions.

Others reason that the time at which electrical impulses are first detectable from the brain, around the eighth week, marks the line after which human life is present. If brain activity is advocated as the criterion for human life among the dying, they argue, then why not use it also at the very beginning?" Such a use of the criterion for human life has been

interpreted by some to indicate that abor- tion would not be killing before electrical impulses are detectable, only afterwards. Such an analogy would seem to possess a symmetry of sorts, but it is only superfi- cially plausible. For the lack of brain re- sponse at the end of life has to be shown to be irreversible in order to support a conclusion that life is absent. The lack of response from the embryo's brain, on the other hand, is temporary and precisely not irreversible.

Another dividing line, once more hav- ing to do with our perception of the fetus, is that achieved when the mother can feel the fetus moving. Quickening has traditionally represented an important dis- tinction, and in some legal traditions such as the common law, abortion has been permitted before quickening, but is a mis- demeanor, "a great misprision," after-

7Noonan, Morality of Abortion, p. 51. For a thorough discussion of this and other views concerning the beginnings of human life, see Daniel Callahan, Abortion: Law, Choice and Morality (New York: Macmillan Company, 1970).

8J6rome Lejeune, "On the Nature of Man," (Lecture at the American Society of Human Genetics at San Francisco, October 2-4, 1969).

9Paul Ramsey, "Feticide/Infanticide upon Request," Religion in Life 39 (July, 1970), 170-86. Arthur J. Dyck, "Perplexities for the Would-Be Liberal in Abortion," Journal of Reproductive Medicine 8 (June, 1972), 351-54.

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38 HASTINGS CENTER STUDIES

wards, rather than homicide. It is certain that the first felt movements represent an awe-inspiring change for the mother, and

perhaps, in some primitive sense, a 'com- ing to life' of the being she carries.

Yet another distinction occurs when

the fetus is considered viable. According to this view, once the fetus is capable of living independently of its mother, it must

be regarded as a human being and pro- tected as such. The United States Su-

preme Court decisions on abortion es- tablished viability as the "compelling" point for the state's "important and legit-

imate interest in potential life," while eschewing the question of when 'life' or 'human life' begins.1"

A set of later distinctions cluster

around the process of birth itself. This is the moment when life begins, according to some religious traditions, and the point at which 'persons' are fully recognized in the law, according to the Supreme Court." The first breaths taken by new- born babies have been invested with im-

mense symbolic meaning since the earli- est gropings toward understanding what it means to be alive and human. And the

rituals of acceptance of babies and chil- dren have often served to define humanity to the point where the baby could be killed if it were not named or declared

acceptable by the elders of the community or by the head of the household, either at birth or in infancy. Others have men- tioned as factors in our concept of hu- manity the ability to experience, to re- member the past and envisage the fu- ture, to communicate, even to laugh at oneself.

In the positions here examined, and in the abortion debate generally, a number of concepts are at times used as if they

were interchangeable. 'Humanity,' 'human life,' 'life,' are such concepts, as are 'man,' 'person,' 'human being,' or 'human individual.' In particular, those who hold that humanity begins at conception or at implantation often have the tendency to say that at that time a human being or a person or a man exists as well, whereas others find it impossible to equate them.

Each of these terms can, in addition, be used in different senses which overlap but are not interchangeable. For instance, humanity and human life, in one sense, are possessed by every cell in our bodies. Many cells have the full genetic makeup required for asexual reproduction-so called cloning-of a human being. Yet clearly this is not the sense of those words intended when the protection of humanity or of human life is advocated. Such protection would press the rever- ence for life to the mad extreme of ruling out haircuts and considering mosquito bites murder.

It may be argued, however, that for most cells which have the potential of cloning to form a human being, extraordi- narily complex measures would be re- quired which are not as yet sufficiently perfected beyond the animal stage. Is there, then, a difference, from the point of view of human potential, between these cells and egg cells or sperm cells? And is there still another difference in

potential between the egg cell before and after conception? While there is a sta- tistical difference in the likelihood of

their developing into a human being, it does not seem possible to draw a clear line where humanity definitely begins.

The different views as to when hu-

manity begins are not dependent upon factual information. Rather, these views are representative of different world- views, often of a religious nature, involv- ing deeply held commitments with moral consequences. There is no disagreement as to what we now know about life and

its development before and after con- ception; differences arise only about the

1oRoe v. Wade, United States Law Week 41, pp. 4227, 4229.

llbid., p. 4227. For further discussion see L. Tribe, "Foreword: Toward a Model of Roles in the Due Process of Life and Law," Harvard Law Review 87 (1973), 1-54.

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ETHICAL PROBLEMS OF ABORTION 39

names and moral consequences we attach to the changes in this development and the distinctions we consider important. Just as there is no point at which Achilles can be pinpointed as catching up with the tortoise, though everyone knows he does, so too everyone is aware of the distance traveled, in terms of humanity, from before conception to birth, though there is no one point at which humanity can be agreed upon as setting in. Our efforts to pinpoint and to define reflect the urgency with which we reach for abstract labels and absolute certainty in facts and in nature; and the resulting confusion and puzzlement are close to what Witt- genstein described, in Philosophical Ihi- vestigations, as the "bewitchment of our intelligence by means of language."'

Even if some see the fertilized egg as possessing humanity and as being "a man" in the words used by Noonan, how- ever, it would be quite unthinkable to act upon all the consequences of such a view. It would be necessary to under- take a monumental struggle against all

n view of

these inconsistencies, it

seems likely that this view of humanity, like so many others, has been adopted for limited purposes having to do with the prohibition of induced abortion, rather than from a real belief in

the full human rights of the first few cells after

conception.

spontaneous abortions-known as mis- carriages-often of severely malformed embryos expelled by the mother's body. This struggle would appear increasingly misguided as we learn more about how to preserve early prenatal life. Those who could not be saved would have to be

buried in the same way as dead infants. Those who engaged in abortion would have to be prosecuted for murder. Ex- traordinary practical complexities would arise with respect to the detection of early abortion, and to the question of whether the use of abortifacients in the first few

days after conception should also count as murder. In view of these inconsis-

tencies, it seems likely that this view of humanity, like so many others, has been adopted for limited purposes having to do with the prohibition of induced abor- tion, rather than from a real belief in the full human rights of the first few cells after conception.

II. Purposes for Seeking to Distinguish Human and Non-Human

A related reason why there are so many views and definitions of humanity is that they have been sought for such different purposes. I indicated already that many of the views about humanity developed in the abortion dispute seem to have been worked out for one such

purpose-that of defending a precon- ceived position on abortion, with little concern for the other consequences flow- ing from that particular view. But there have been so many other efforts to de- fine humanity and to arrive at the essence of what it means to be human-to dis-

tinguish men from angels and demons, plants and animals, witches and robots. The most powerful one has been the urge to know about the human species and to trace the biological or divine ori- gins and the essential characteristics of mankind. It is magnificently expressed beginning with the very earliest creation myths; in fact, this consciousness of one-

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40 HASTINGS CENTER STUDIES

self and wonder at one's condition has

often been thought one of the essential distinctions between men and animals.

A separate purpose, both giving strength to and flowing from these efforts to describe and to understand humanity, has been that of seeking to define what a good human being is-to delineate human aspirations. What ought fully human be- ings to be like, and how should they dif- fer from and grow beyond their imma- ture, less perfect, sick or criminal fellow men? Who can teach such growth-St. Francis or Nietzsche, Buddha or Eras- mus? And what kind of families and

societies give support and provide models for growth?

Finally, definitions of humanity have been sought in order to try to set limits to the protection of life. At what level of developing humanity can and ought lives to receive protection? And who, among those many labelled less than human at different times in history-- slaves, enemies in war, women, children, the retarded-should be denied such protection?

Of these three purposes for defining 'humanity,' the first is classificatory and descriptive in the first hand (though it gives rise to normative considerations). It has roots in religious and metaphysical thought, and has branched out into bio- logical and archeological and anthropo- logical research. But the latter two, so often confused with the first, are pri- marily normative or prescriptive. They seek to set norms or guidelines for who is fully human, and who is at least mini- mally human--so human as to be entitled to the protection of life. For the sake of these normative purposes, definitions of 'humanity' established elsewhere have been sought in order to determine action -and all too often the action has been devastating for those excluded.

It is crucial to ask at this point why the descriptive and the normative defini- tions have been thought to coincide; why it has been taken for granted that the line

between human and non-human or not

yet-human is identical with that distin- guishing those who may be killed from those who are to be protected.

One or both of two fundamental as-

sumptions are made by those who base the protection of life upon the posses- sion of 'humanity.' The first is that all human beings are not only different from, but superior to all other living matter. This is the assumption which changes the definition of humanity into an evaluative one. It lies at the root of Western reli-

gious and social thought, from the Bible and the Aristotelian concept of the 'lad- der of life,' all the way to Teilhard de Chardin's view of mankind as close to the intended summit and consummation

of the development of living beings. The second assumption holds that the

superiority of human beings somehow justifies their using what is non-human as they see fit, dominating it, even killing it when they wish to. St. Augustine, in The City of God,"' expresses both of these anthropocentric assumptions when he holds that the injunction "Thou shalt not kill" does not apply to killing ani- mals and plants, since, having no faculty of reason,

therefore by the altogether righteous ordinance of the Creator both their life and death are a matter subordinate to our needs.

Neither of these assumptions is self- evident. And the results of acting upon them, upon the bidding to subdue the earth, to subordinate its many forms of life to human needs, are no longer seen by all to be beneficial.'" The very en-

'1Augustine, The City of God Against the Pagans, Book I. Ch. XX (Cambridge: Harvard University Press, 1957).

13C. D. Stone, "Should Trees Have Stand- ing? Toward Legal Rights for Natural Ob- jects," Southern California Law Review 45, 450-501, provides an interesting analysis of the extension of rights to those not previously considered persons, such as children, and a discussion of possible future extensions to natural objects.

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ETHICAL PROBLEMS OF ABORTION 41

terprise of basing normative conclusions on such assumptions and distinctions can no longer be taken for granted. Despite these difficulties, many still try

to employ definitions of 'humanity' to do just that. And herein lies by far the most

important reason for abandoning such efforts: the monumental misuse of the

concept of 'humanity' in so many prac- tices of discrimination and atrocity throughout history. Slavery, witchhunts and wars have all been justified by their perpetrators on the grounds that they held their victims to be less than fully human. The insane and the criminal have for

long periods been deprived of the most basic necessities for similar reasons, and excluded from society. A theologian, Dr. Joseph Fletcher, has even suggested re- cently that someone who has an I.Q. below 40 is "questionably a person" and that those below the 20-mark are not

persons at all." He adds that: This has bearing, obviously, on de- cion making in gynecology, obstetrics, and pediatrics, as well as in general surgery and medicine. Here a criterion for 'personhood' is

taken as a guideline for action which could have sinister and far-reaching ef- fects. Even when entered upon with the best of intentions, and in the most guarded manner, the enterprise of basing the protection of human life upon such criteria and definitions is dangerous. To question someone's humanity or person- hood is a first step to mistreatment and killing.

We must abandon, therefore, this quest for a definition of humanity capable of showing us who has a right to live. To do so must not, however, mean any abandon of concern with the human con-

dition-with the quest for knowledge about human origins and characteristics and with aspirations for human goodness.

It is only the use of the concept of 'hu- manity' as a criterion of exclusion which I deplore.

In recent decades, philosophers have devoted much thought to the nature of ethical principles, to the kind of state- ment they make, and to their internal grammar. Much has been written about the requirement that these principles be universal-that they hold for all man- kind, all moral persons, all rational be- ings. As a rough distinction, such a sim- ple characterization of the extent to which ethical principles should hold is undoubt- edly natural and relatively unproblematic. It would rule out, for example, the de- nial of basic rights to some persons while according them to others, whereas it would not prohibit the employment of plant fiber in clothing or lumber in fur- niture. But I submit that in the many borderline cases where humanity is ques- tioned by some-the so-called 'vegeta- bles,' the severely retarded, or the em- bryo-even the seemingly universal yard- sticks of 'humanity' or rationality are dangerous.

But if we rule out the appeal to a stan- dard of 'humanity' in deciding about the protection of life in such difficult cases, may we not have lost the only criterion of objective decisions? Or could there be other criteria less dangerous and vague than that connected with 'humanity'?

In order to seek such criteria, it is crucial to arrive at an understanding of the harm that comes from the taking of life. Why do we hold life to be sacred? Why does it require protection beyond that given to anything else? The ques- tion seems unnecessary at first-surely most people share what has been called "the elemental sensation of vitality and the elemental fear of its extinction," and what Hume termed "our horrors at an-

nihilation."'1 Many think of this ele-

14Joseph Fletcher, "Indicators of Human- hood: A Tentative Profile of Man," The Hast- ings Center Report 2 (November, 1972), 1-4.

15Edward Shils, "The Sanctity of Life," in Life or Death: Ethics and Options, ed. by D. H. Labby (Seattle: University of Washing- ton Press, 1968), p. 12. David Hume, "Of the

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42 HASTINGS CENTER STUDIES

mental sensation as incapable of further analysis. They view any attempt to say why we hold life sacred as an instru- mentalist rocking of the boat which may endanger this fundamental and unques- tioned respect for life. Yet I believe that such a failure to ask what the respect for

life ought to protect lies at the root of the confusion about abortion and many other difficult decisions concerning life and death. I shall try, therefore, to list the most important reasons which under- lie the elemental sense of the sacredness

of life. Having done so, these reasons can be considered as they apply or do not apply to the embryo and the fetus.

III. Reasons for Protecting Life

1. Killing is viewed as the greatest of all dangers for the victim.

* The knowledge that there is a threat to life causes intense anguish and ap- prehension.

* The actual taking of life can cause great suffering.

* The continued experience of life, once begun, is considered so valuable, so unique, so absorbing, that no one who has this experience should be un- justly deprived of it. And depriving someone of this experience means that all else of value to him will be lost.

2. Killing is brutalizing and criminal- izing for the killer. It is a threat to others, and destructive to the person en- gaged therein.

3. Killing often causes the family of the victim and others to experience grief and loss. They may have been tied to the dead person by affection or economic dependence; they may have given of themselves in the relationship, so that its severance causes deep suffering.

4. All of society, as a result, has a stake in the protection of life. Permitting

killing to take place sets patterns for victims, killers, and survivors, that are threatening and ultimately harmful to all.

These are neutral principles governing the protection of life. They are shared by most human beings reflecting upon the possibility of dying at the hands of others. It is clear that these principles, if applied in the absence of the confusing terminology of 'humanity,' would rule out the kinds of killing perpetrated by conquerors, witch-hunters, slave-holders, and Nazis. Their victims feared death and suffered; they grieved for their dead; and the societies permitting such killing were brutalized and degraded.

Turning now to abortions once more, how do these principles apply to the tak- ing of the lives of embryos and fetuses? A. Reasons to Protect Life in the

Prenatal Period

Consider the very earliest cell forma- tions soon after conception. Clearly, most of these reasons for protecting human tlife are absent here.

This group of cells cannot suffer in death, nor can it fear death. Its expe- riencing of life has not yet begun; it is not yet conscious of the loss of anything it has come to value in life and is not tied by bonds of affection to other human

beings. If the abortion is desired by both parents, it will cause no grief such as that which accompanies the death of a child. Almost no human care and emo- tion and resources have been invested in it. Nor is a very early abortion brutal- izing for the person voluntarily perform- ing it, or a threat to other members of the human community.1" The only factor

Immortality of the Soul," Essays: Moral, Po- litical, and Literary (London: Longmans, Green, and Co., 1882), II, p. 405.

16This question will be taken up in detail in Part V. It is because all of the reasons for protecting life are present when someone con- sidered to be a slave is murdered that the spate of recent sensationalistic comparisons of abor- tion and slavery do not make sense, even though it is true that in both cases there are denials of the humanity of the victims. Once again, a confusion in the use of the word 'humanity' is at fault.

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ETHICAL PROBLEMS OF ABORTION 43

common to these few cells and, say, a soldier killed in war or a murdered rob-

bery victim is that of the potential denied, the interruption of life, the deprivation of the possibility to grow and to expe- rience, to have the joys and sorrows of existence.

For how much should this one factor

count? It should count at least so much

as to eliminate the occasionally voiced notion that pregnancy and its interrup- tion involve only the mother in the pri- vacy of her reproductive life, that to have an abortion is somehow analogous with cutting one's finger nails.

At the same time, I cannot agree that it should count enough so that one can simply equate killing an embryo with murder, even apart from legal considera- tions or the problems of enforcement. For it is important that most of the rea- sons why we protect lives are absent here. It does matter that the group of cells can- not feel the anguish or pain connected with death, that it is not conscious of the interruption of its life, and that other humans do not mourn it or feel insecure in their own lives if it dies.

But, it could be argued, one can con- ceive of other deaths with those factors absent, which nevertheless would be mur-

der. Take the killing of a hermit in his sleep, by someone who instantly commits suicide. Here there is no anxiety or fear of the killing on the part of the victim, no pain in dying, no mourning by family or friends (to whom the hermit has, in leaving them for good, already in a sense 'died'), no awareness by others that a wrong has been done; and the possible brutalization of the murderer has been

made harmless to others through his suicide. Speculate further that the bodies are never found. Yet we would still call the act one of murder. The reason we

would do so is inherent in the act itself, and depends on the fact that his life was taken, and that he was denied the chance to continue to experience it.

How does this privation of potential

differ from abortion in the first few days of pregnancy? I find that I cannot use words like 'deprived,' 'deny,' 'take away,' and 'harm' when it comes to the group of cells, whereas I have no difficulty in using them for the hermit. Do these words require, if not a person conscious of his loss, at least someone who at a prior time has developed enough to be or have been conscious thereof? Because there is

no semblance of human form, no con- scious life or capability to live independ- ently, no knowledge of death, no sense of pain, one cannot use such words meaningfully to describe early abortion.

In addition, whereas it is possible to frame a rule permitting abortion which causes no anxiety on the part of others covered by the rule-other embryos or fetuses-it is not possible to frame such a rule permitting the killing of hermits wtihout threatening other hermits. All hermits would have to fear for their lives

if there were a rule saying that hermits can be killed if they are alone and asleep and if the agent commits suicide.

The reasons, then, for the protection of lives are minimal in very early abor- tions. At the same time, some of them are clearly present with respect to in- fanticide, most important among them the brutalization of those participating in the act and the resultant danger for all who are felt to be undesirable by their families or by others. This is not to say that acts of infanticide have not taken place in our society; indeed, as late as the nineteenth century, newborns were frequently killed, either directly or by giving them into the care of institutions such as foundling hospitals, where the death rate could be as high as 90 percent in the first year of life.17 A few primi- tive societies, at the edge of extinction, without other means to limit families, still practice infanticide. But I believe

17William L. Langer, "Checks on Popula- tion Growth: 1750-1850," Scientific American 226 (February, 1972).

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44 HASTINGS CENTER STUDIES

that the public acceptance of infanticide in all other societies is unthinkable, given the advent of modern methods of contra-

ception and early abortion, and of insti- tutions to which parents can give their children, assured of their survival and of the high likelihood that they will be adopted and cared for by a family.

B. Dividing Lines If, therefore, very early abortion does

not violate these principles of protection for life, but infanticide does, we are con- fronted with a new kind of continuum in

the place of that between less human and more human: that of the growth in strength, during the prenatal period, of these principles, these reasons for pro- tecting life. In this second continuum, it would be as difficult as in the first to

draw a line based upon objective factors. Since most abortions can be performed earlier or later during pregnancy, it would be preferable to encourage early abor- tions rather than late ones, and to draw a line before the second half of the preg- nancy, permitting later abortions only on a clear showing of need. For this purpose, the two concepts of quickening and via- bility-so unsatisfactory in determining when humanity begins-can provide such limits.

Before quickening, the reasons to pro- tect life are, as has been shown, negli- gible, perhaps absent altogether. During this period, therefore, abortion could be permitted upon request. Alternatively, the end of the first trimester could be em-,

ployed as such a limit, as is the case in a number of countries.

Between quickening and viability, when the operation is a more difficult one med- ically and more traumatic for parents and medical personnel, it would not seem unreasonable to hold that special reasons justifying the abortion should be required in order to counterbalance this resistance; reasons not known earlier, such as the severe malformation of the fetus. After

viability, finally, all abortions save the

rare ones required to save the life of the mother,1s should be prohibited, because the reasons to protect life may now be thought to be partially present; even though the viable fetus cannot fear death or suffer consciously therefrom, the ef- fects on those participating in the event, and thus on society indirectly, could be serious. This is especially so because of the need, mentioned above, for a pro- tection against infanticide. In the unlikely event, however, that the mother should first come to wish to be separated from the fetus at such a late stage, the pro- cedure ought to be delayed until it can be one of premature birth, not one of harming the fetus in an abortive process.

Medically, however, the definition of 'viability' is difficult. It varies from one fetus to another. At one stage in preg- nancy, a certain number of babies, if born, will be viable. At a later stage, the percentage will be greater. Viability also depends greatly on the state of our knowl- edge concerning the support of life after birth, and on the nature of the support itself. Support can be given much earlier in a modern hospital than in a rural vil- lage, or in a clinic geared to doing abor- tions only. It may some day even be the case that almost any human life will be considered viable before birth, once arti- ficial wombs are perfected.

As technological progress pushes back the time when the fetus can be helped to survive independently of the mother, a question will arise as to whether the cut- off point marked by viability ought also be pushed back. Should abortion then

18Every effort must be made by physicians and others to construe the Supreme Court's statement "If the State is interested in protect- ing fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother" to concern, in effect, only the life or threat to life of the mother. See Alan Stone, "Abortion and the Supreme Court: What Now?" Modern Medicine, April 30, 1973, pp. 33-37, for a discussion of this question and what it means for physicians.

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ETHICAL PROBLEMS OF ABORTION 45

be prohibited much earlier than is now the case, because the medical meaning of 'viability' will have changed, or should we continue to rely on the conventional meaning of the word for the distinction between lawful and unlawful abortion?

In order to answer this question it is necessary to look once more at the rea- sons for which 'viability' was thought to be a good dividing-line in the first place. Is viability important because the baby can survive outside of the mother? Or

because this chance of survival comes at

a time in fetal development when the reasons to protect life have grown strong enough to prohibit abortion? At present, the two coincide, but in the future, they may come to diverge increasingly.

If the time comes when an embryo could be kept alive without its mother and thus be 'viable' in one sense of the

word, the reasons for protecting life from the point of view of victims, agents, rela- tives and society would still be absent; it seems right, therefore, to tie the obliga- tory protection of life to the present con- ventional definition of 'viability' and to set a socially agreed upon time in preg- nancy after which abortion should be prohibited.

To sum up, the justifications a mother has for not wishing to give birth can operate up to a certain point in preg- nancy; after that point, the reasons so- ciety has for protecting life become suffi- ciently weighty so-as to prohibit late abortions and infanticide.

IV. Moral Distinctions

But moral distinctions ought never- theless to be made by the mother consid- ering an abortion even during the period when she may lawfully obtain one. In addition to those having to do with the method of abortion and the degree to which the pregnancy was voluntary or in- voluntary (as discussed previously), the time in pregancy, the weightiness of the reasons for wanting the abortion, the de-

sires of the father, and the possibility of alternatives such as adoption, must all be considered.

1. The time in pregnancy at which the abortion takes place is a very important factor. Very early in pregnancy, the rea- sons for protecting life are clearly absent. Few will have to face the questions which come with aborting a 4 or 5-month-old fetus when early abortions are generally available. But in such late abortions, it is especially important to consider what the reasons are for desiring the abortion.

2. Among all of the reasons why a pregnancy is unwanted, it is possible to perceive a gradation from reasons all

n all of

these cases [chromosomal

abnormality or genetic

disease] the parents, while they might ordinarily welcome

a pregnancy, may come

to the conclusion that they do not wish to give birth in this particular case.

would recognize as very compelling, such as a threat to the mother's life, to rea- sons most would think of as frivolous, such as a determination that only a fetus of a desired sex should be allowed to

be born. This gradation among the rea- sons for wishing not to have a baby will be part of any judgment concerning the morality of acts to prevent births. It is also possible to divide the innumerable reasons for not wanting a pregnancy into two main categories. The first one, some- times called 'selective' unwantedness, re- fers to those pregnancies which are de-

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46 HASTINGS CENTER STUDIES

sired, often planned, by the parents, but during the course of which evidence comes to light concerning a risk, or even a certainty of abnormality in the fetus. If, for example, the mother has Rubella, or German Measles, in the first trimester, there is a probability of fetal abnormality. And it is now possible to learn, through prenatal diagnosis, whether the fetus suffers from a chromosomal ab-

normality, the most common of which causes mongolism, or from one of a num- ber of genetic diseases which can cause malformation or mental retardation.19 In all of these cases the parents, while they might ordinarily welcome a pregnancy, may come to the conclusion that they do not wish to give birth in this particular case.

But the determination of such defects

through amniocentesis can only be made when the amniotic fluid is present to a sufficient degree, and the final results of the tests may not be available until the fifth month of pregnancy. Only late abor- tions are possible after amniocentesis, and this makes the decision for parents and doctors a much more difficult one.

The reasons for not wanting a mal- formed baby differ with the capacities of the parents and the severity of the ab- normality. Some parents, and families, cope admirably and with great love with children who would prove burdensome and even destructive to other families. A

severely disabled fetus, likely to suffer greatly once born and perhaps to die in childhood, could be 'unwanted' out of concern for its own welfare, as well as for the welfare of the family. A great deal depends on the help available from the community, in terms of financial as- sistance, special schooling, medical re-

sources, and general support. Other fac- tors which can be important are the pride of the family, or even parental prejudice, e.g., parents' wish for an abortion after learning that the fetus is of one sex rather than another.

Perhaps most difficult from a moral point of view are the situations where the parents know beforehand that they are carriers of genetic defects, and where they enter upon a pregnancy determined in advance to abort any fetus which is found to exhibit the defect. I say this with the greatest humility, knowing the strength of the urge to have one's own babies. But I see no difference between

starting another human life with such plans, and creating 'test-tube' fetuses only to throw away those deemed undesirable. In cases such as these, other ways of bringing children into the lives of par- ents must be worked out. At times arti-

ficial insemination may provide an an- swer,20 at other times adoption, or work- ing with children in the many capacities where help is needed, may be preferable.

But there are many cases where these distinctions cannot be so clearly made. It may be difficult to know whether there was an intention to have a baby, or to risk becoming pregnant. It might be argued that someone who engaged in sexual activity, even using contraceptives, ought to be willing to take the responsi- bility for a human life which results. Whereas to abort under such circum-

stances, or even after a voluntarily begun pregnancy, is not murder, it ought not to be taken lightly. For the same reason, it is insensitive to omit contraceptive measures and to rely on the availability of abortion in the case of pregnancy. (Though the availability of methods mak- ing abortions possible in the very earliest

19Theodore Friedmann, "Prenatal Diagnosis of Genetic Disease," Scientific American 225 (November, 1971), 34-42 and A. Milunsky, et al., "Prenatal Genetic Diagnosis," New Eng- land Journal of Medicine 283 (December 17, 1970), 1370-81; (December 24, 1970), 1441- 47; (December 31, 1970), 1498-1504.

-'Especially when genetic evaluation of donors becomes a common practice. See Walter Wadlington, "Artificial Insemination: The Dangers of a Poorly Kept Secret," North- western University Law Review 64 [6] (1970), 777-807.

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ETHICAL PROBLEMS OF ABORTION 47

days of pregnancy and the hazy line be- tween such abortions and contraception may make such a distinction less pointed.)

Another set of criteria which will be

difficult to work out when considering reasons for abortion is that which should

govern abortions for the sake of the wel- fare of the fetus. For while almost all

would agree about the extreme cases I have mentioned, there will be disagree- ment as to what to do in those cases

where the affliction is not totally debili- tating, or where there is merely a risk of disease, not a certainty. What if the risk is small'? A recent newspaper article stated that there is one chance out of a

hundred that a baby will be born retarded if the mother has had the flu in the first

trimester of her pregnancy. Whether or not this particular concern turns out to be correct, it is going to be increasingly pos- sible to specify odds of this kind, some- times with a very low probability of danger. It has been suggested that par- ents will come to want to take very few chances of defects, so long as the choice is open to them of having abor- tions.

Even if it is possible, however, to work out criteria concerning the welfare of the baby, there are times when the cost at which this welfare is to be purchased must be weighed against the welfare of other human beings. If for example, a fetus is diagnosed as having a disease which can be controlled after birth so as

not to cause suffering, but only at stag- gering costs to the family or the com- munity-say of millions of dollars each day-abortion would clearly be called for in spite of the theoretical possibility of carrying the baby to term and treating it. The other possibility would be not aborting, and permitting the baby to suf- fer in the absence of such expensive re- lief, and then once more, the magnitude of the suffering might have argued in favor of abortion.

All these cases, where certain births

are unwanted because of the characteris-

tics of the fetus, differ crucially from those in the second category where no children at all are wanted at the time of

the pregnancy. In this larger group are the more familiar cases where there is

danger to the mother's physical health or her emotional stability, or where there is not enough food, clothing, or shelter to cope with yet another child. Here, too, are cases where there has been rape, or incest, or where a very young girl is pregnant. There are also the frequent cases where the mother feels she is be-

yond the age best suited for child-caring, or does not want to accept the! great change in life-the restriction, the finan- cial pinch, and the feeling of being tied down-which often accompany the birth of a child. These changes affect mothers most powerfully in our society of nuclear families where the burdens of child-

rearing often fall on them alone. In all of these cases, contraception could have avoided the pregnancy, and an early abor- tion is possible as a last resort. Adoption is an alternative resort which should al-

ways be considered. It must be remem- bered, however, that with prevailing at- titudes it would be exceedingly difficult for a married woman with existing chil- dren to give a baby up for adoption.

The distinction between the two kinds

of reasons for not wanting a pregnancy is crucial. For while the first group of conceptions-unwanted because of the characteristics of the fetus-often require abortions if births are to be prevented (and often late abortions, since prenatal diagnosis takes time and can rarely begin until the second trimester of pregnancy), the second group can usually be pre- vented through contraception, steriliza- tion, abstinence, or protection of the mother from sexual assault. Abortion is

necessary here only as a last resort, where other methods have failed, and an early abortion is possible, presenting fewer medical, ethical, and emotional problems than a later one.

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48 HASTINGS CENTER STUDIES

3. At times, there are conflicts between mothers and fathers of the unborn. Ac-

cording to one study,21 about one-half of the pregnancies unwanted by one or both parents were unwanted by only one parent. Very often such disagreements are settled amicably, usually in favor of having the baby. But who should make the decision when the mother wishes to

have an abortion, and the father wants to restrain her?22 In a recent Canadian

case,23 a judge prohibited an abortion de- sired by a mother. The father had brought suit on his own behalf and on that of the

'infant plaintiff.' It is difficult to see how such a dis-

agreement can be anything but disrup- tive for the relationship between the two parents, as well as very harmful for the child after birth. Whoever 'wins' in such

a conflict will have won a Pyrrhic victory indeed.

Early in pregnancy, the mother has at her disposal methods of abortion which need not involve the father's knowledge of her condition. The same is true if he does not learn of the pregnancy as it progresses. But barring such eventualities, who would decide in the event of a con- flict?

In such a conflict, while it is important to ascertain the father's views when pos- sible, there ought not to be a requirement that both parents consent to an abortion, as is now often the case.24 The mother has the burden of pregnancy, and most often of caring for the baby she bears. The decision to interrupt her pregnancy should therefore be hers. But into her de-

cision should go the awareness of the heavy price she will have to pay in the

relationship with the father, if she aborts their unborn child against his wishes. And

the father's reasons for wishing to con- tinue the pregnancy should be given due weight, so as to counterbalance in her judgment all but the most pressing rea- sons she has for wishing to have the abortion.

The father's wishes should be given great weight, especially if he wants not only to preserve the life of his unborn child, but also to share responsibility and care after birth. At a future time, when it may be possible to remove a fetus rela- tively early in pregnancy and protect it artificially until 'birth,' fathers, just as adoptive parents, ought to have the right to declare their intentions to take re-

sponsibility for the baby. Mothers at that time, while severing their connections with the fetus, should not be able to de- mand its death.

Furthermore, if we look back on the reasons for protecting life, one of them concerns the grief felt by family mem- bers when someone is killed. If, there- fore, a father feels such grief, and if he supports his contention by promising to assume the burdens of child-rearing after birth, this ought to be an important con- sideration, persuasive to the mother or to her physician or to both. Our society has been moving in the direction of rec- ognizing that men as well as women can provide care and nurturance for children. To permit a father to prevent the abor- tion of his child on the condition that he

bring it up later would seem to be a move in the same direction. If he is un-

willing to make such a commitment, how- ever, his grief at the impending death of

21See Edward Pohlman, "Unwanted Con- ceptions: Research on Undesirable Conse- quences," Eugenics Quarterly 14 [2] (June, 1967), 144.

221 discuss the reverse situation, where the father wishes to force the mother to have an

abortion, on page 51. 23See New York Times, Saturday, January

28, 1972. 24"When abortion is recommended by a phy-

sician, the indications should be stated in the patient's record, and informed consent obtained from the patient and her husband, or herself if she is unmarried, or from her nearest rela- tive or guardian if she is under the age of consent." From Policy on Abortion, issued in August, 1970 by the Executive Board of the American College of Obstetricians and Gyne- cologists. See Tribe, Harvard Law Review, 38-41.

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ETHICAL PROBLEMS OF ABORTION 49

the fetus is less entitled to respect. 4. The alternatives to abortion differ

depending upon whether birth prevention is considered before or after conception. The alternatives open before conception -abstinence, different methods of con- traception, and sterilization-do not raise the particular moral problems connected with taking the life of the fetus, or of rejecting the baby after birth.

Once conception has occurred, the al- ternatives to abortion are to accept re- sponsibility for the baby after birth, or to relinquish it to the state or to adoptive parents. It is extremely important to con- sider these alternatives in the case of

each unwanted pregnancy, and only to have recourse to abortion after discarding them. Many pregnant women, whether they are seeking abortions or not, are ambivalent, struggling within themselves in order to reconcile the tenderness nor-

mally evoked by the thought of a baby, with fears connected with their preg- nancy. The fears may have to do with the future of the baby, or with the future of the family unit into which the baby will come. Sometimes there is no such family unit, and sometimes the relation- ship with the baby's father is such as to threaten the future of the baby. The de- cisive point comes when the choice is made to prevent a pregnancy or a birth. And this choice in turn is strongly influ- enced by social attitudes towards means of birth prevention, and by their avail- ability.

The fact of having children has always been considered 'natural,' and someone not wishing a child, or any children, has been expected to produce reasons in sup- port of such an attitude. It may be that we are now coming closer to a time when choosing not to have a child will be seen to reflect, not necessarily a hostile and niggardly attitude, a 'denial of life,' but a respect for the living, and a correct estimate of what kind of life a baby can be given. In that case, reasons will come to be expected before giving birth to a

new baby, and thoughts for the welfare of the child to be will come to be seen

as an important aspect of child-bearing. In order for such choices to be possi-

ble at all, however, information is neces- sary. All those who are physically able to become parents must have wise and full advice regarding family life, sexual life, and birth prevention. From a moral point of view, contraception is greatly preferable to abortion. The knowledge about contraceptive alternatives to child- birth, or to abortion, is therefore crucial to all potential parents. Withholding in- formation in order to preserve 'innocence' among the young is a self-defeating and unjustifiable exercise of paternalistic power, contributing to the birth of un- wanted children and to shattered lives.

I have argued that it may be moral to have an abortion under certain circum-

stances, but that the range of morally justifiable abortions is more restricted than that of those abortions declared law-

ful by the Supreme Court. But some argue that such views of morality and legality, if widely followed, could lead to great dangers for society.

V. Problems of Line-drawing

A. Can We Allow Abortion Without

Risking Infanticide?

Foes of abortion argue that a society which permits abortion may not be able

to hold the line against infanticide."5 Once we admit reasons for abortions such as

fetal malformation or simply not wanting another child, they say, what is to pre- vent people from acting upon these very same reasons after birth?"2 A baby just

2"See for example, Noonan, Morality of Abortion, p. 258.

26Some have used the same argument for the opposite conclusion. Since, or if, we allow abortion, they say, we should allow infanticide under certain conditions. See Michael Tooley, "Abortion and Infanticide," Philosophy and Public Affairs 2 (Fall, 1972), 37-65, and John M. Freeman and Robert E. Cooke, "Is There

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50 HASTINGS CENTER STUDIES

before birth, they argue, is identical to one just after birth. What, then, will pro- vide the discontinuity? I have argued, on the contrary, that

another set of reasons-the reasons for

protecting human life-gain in strength during pregnancy and are such as to pro- hibit abortions after a certain point and therefore also to prohibit infanticide. While it is true that no theoretical line

can be drawn which distinguishes between

inally, if

abortion is permitted for

indigent mothers in part out

of sympathy for mother and

child and in part out of computation of the likely

costs to the community... might there not in the long

run be a requirement for

abortion... for any judged unable to provide materially or emotionally or intellec- tually for the needs of their children?

a baby just before birth and one just after birth, there is no difficulty in distinguish- ing an aborted embryo from a newborn baby. A time must therefore be set in pregnancy well before birth for the cutting-off point. The discontinuity will then exist between abortion and infanti-

cide. The argument that the reason for aborting may still exist at childbirth does not take into account the reasons against killing, and the threat which would be felt by all if infanticide as a parental op- tion were thought to be possible.27

How can one know whether such a

discontinuity can be observed in prac- tice? The only way to know is to consider those societies which have already per- mitted abortion for considerable lengths of time. These countries do not in fact experience tendencies toward infanticide. The infant mortality statistics in Sweden and Denmark are extremely low, and the protection and care given to all living children, including those born with spe- cial problems, is exemplary.

Moreover, Nazi Germany, which is frequently cited as a warning of what is to come once abortion becomes lawful, had very strict laws prohibiting abortion. In 1943, Hitler's regime made the ex- isting penalties for women having abor- tions, and those performing them, even more severe by removing the limit on imprisonment and by including the pos- sibility of "hard labor" for "especially serious cases."28

The fear of slipping from abortion towards infanticide, therefore, while un- derstandable, does not seem to be grounded in fact.

B. Is There A Risk of Compulsory Abortion?

A second type of line-drawing prob-

ia Right to Die-Quickly?", Journal of Pedi- atrics 80 (Spring, 1972), 940-5. Once again, such a conclusion fails to take into account

the powerful social reasons against infanticide.

271t is important to be clear here about the differences between active killing of infants and the fact that the battle for life, in those rare cases where an infant is born with a

severe malformation, such as the absence of a brain, is not undertaken or not carried as far as it would otherwise be. There are diffi- cult borderline cases, but nothing suggests that killing actively in early pregnancy opens the door to the active killing of infants.

28See Reichsgesetzblatt, 1926, Teil I, Nr. 28, 25 May 1926, ? 218, and 1943, Teil I, 9 March 1943, Art. I, "Angriffe auf Ehe, Familie, und Mutterschaft."

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ETHICAL PROBLEMS OF ABORTION 51

lem is the following: if a beginning is made by permitting amniocentesis and abortion in cases where the mother learns

she is expecting a grossly malformed baby, might there not come to be a requirement for others to undergo am- niocentesis, and to induce abortion if the fetus is found to be defective? And once

abortion is no longer reprehensible, might a community not require abortions where expectant mothers are heavily addicted, and where it is not only likely that they will harm or neglect their children after birth,

but where they are demonstrably severely harming them even before birth? Might it not be increasingly easy for parents to force their daughters to have abortions should they become pregnant while they are too young, or unmarried?2" Or even for husbands to require abortions where they judge their wives to be unstable or perhaps ill? And finally, if abortion is permitted for indigent mothers, in part out of sympathy for mother and child, and in part out of a computation of the likely costs to the community of enforc- ing the births of unwanted children, might there not in the long run be a require- ment for abortion where mothers on wel-

fare are concerned, or any others who are judged unable to provide, materially or emotionally or intellectually, for the needs of their children?

One can readily concede that it is im- portant to be vigilant against any such developments. Any inroads upon a preg- nant woman's physical integrity, against her will, are very serious and we need strong protection for the control she should be able to exercise over her own

body. Great risks of abuse would ob- viously accompany any provision for ob- ligatory abortion. But to forbid voluntary

abortion because of the danger of in- voluntary abortion would be like forbid- ding voluntary adoptions on the grounds that they might lead to involuntary adop- tion policies. The battle against coercion must be fought at all times, with respect to many social options, but this is no rea- son to prohibit the options themselves.

Conclusion

There are many reasons which may lead a mother not to wish to give birth, but to have an abortion instead. They range from the most compelling to the most trivial. In early pregnancy, society's reasons for protecting life--the suffering and harm to the victim, to the agent, to the family and friends, and to society as a whole-do not apply, either to the zygote or to the embryo. Abortion, for whatever reasons, should then be avail- able upon request. Preventing birth be- fore conception or just after conception, however, presents fewer ethical conflicts than later abortions.

As pregnancy progresses, the social reasons for preventing killing are more and more applicable to the fetus. At the stage where a fetus is viable-capable of independent life outside the mother's body-these reasons begin to be as sub- stantial as at birth and thereafter. In

addition, viability represents the time when cessation of bodily support by the mother need not result in fetal death; as a result a viable fetus is capable of pro- tection by others. For these reasons, I believe that after the established time

of possible viability, methods separating fetus and mother so as to kill the fetus should be prohibited. But an earlier time -perhaps 18 rather than 24 weeks-is preferable for all but exceptional cases (such as those occurring after prenatal diagnosis of severe malformation).

Even though abortion may be lawful up to this time, however, it is not nec- essarily an act which an individual may consider right or justifiable. This dis-

29See the Maryland case in Re Smith re- ported in 41 U.S. Law Week 2202, 1972, where a 16-year-old girl was jailed at the request of a Circuit Court judge in order to undergo the abortion she refused, but which her mother insisted upon. At the last moment, a higher court freed the girl.

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52 HASTINGS CENTER STUDIES

crepancy results, I believe, from the fact that the social reasons for protecting life may also be looked upon in each case as individual reasons. Society may not find that abortion harms either victim or

agent, family or social practices. But the individual parent or physician may see risks to himself as a person from such acts and look at them as breaches of per- sonal responsibility toward the unborn. They may then regard abortion as per- sonally distasteful, even though it is lawful.

Some physicians, for example, do feel that they cannot participate in abortions without personal danger of brutalization and without sharing responsibility for killing. This may be especially true when they are called in, as in large hospitals, to perform one abortion after another without any chance to consult with the women involved and to hear their case

histories. There should never be a re-

quirement that a physician or nurse must participate in an abortion. Even if women have a right to abortion, they have not therefore the right to force others to perform such acts.

In the same way, a mother or a father may feel personal grief over the death of a fetus, and responsibility for killing it, quite apart from the legality of the act. This grief and this responsibility, which would be present as a matter of course where parents wish for the birth of their baby, may also accompany an unwanted pregnancy. The following factors should then be weighed by the mother before

she can be confident that abortion is the

right way out of her dilemma, and one she will not come to regret or view with guilt:

* whether or not the pregnancy was voluntarily undertaken.

* the importance and validity of the reasons for wanting the abortion.

* the technique to be used in the abortion; the extent to which it can be regarded as 'cessation of bodily life support,' rather than as outright killing.

* the time of pregnancy. * whether or not the father agrees to

the abortion.

* whether or not all other alternatives

have been considered, such as adop- tion.

* her religious views. And the father, if he weighs these fac-

tors differently, may feel the grief and responsibility differently too, and wish to take over the care of the baby after birth.

Abortion is a last resort, and must re- main so. It is much more problematic than contraception, yet it is sometimes the only way out of a great dilemma. Neither individual parents nor society should look at abortion as a policy to be encouraged at the expense of contracep- tion, sterilization, and adoption. At the same time, there are a number of cir- cumstances in which it can justifiably be undertaken, for which public and private facilities must be provided in such a way as to make no distinction between rich

and poor.

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