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Breaking NewsIs There Life After Roe?

ve8QAd   |   November 13, 2000

Breaking News Archive 2004

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Is There Life After Roe?

By Frances Kissling
Winter 2004/2005

This brings us to the second value of a good society: respect for life, including fetal life. Why should we allow this value to be owned by those opposed to abortion? Are we not capable of walking and chewing gum at the same time; of valuing life and respecting women’s rights? Have we not ceded too much territory to antiabortionists by not articulating the value of fetal life? In an important op-ed in the New York Times, author William Saletan claimed that “supporters of abortion rights…still don’t know how to articulate the value of unborn human life.” Saletan makes a good point, but he does not pursue it and offers no suggestions for how we could articulate this value.

Among the most interesting reactions of those who are prochoice is a concern that some women might find the continued existence of the fetus painful for them or that women have a right to ensure that their genetic material does not enter the world. Abortion in this sense becomes the guarantee of a dead fetus, if desired, rather than the removal of the fetus from an unwilling host, the woman. To even offer women such an option is, some think, cruel. For some the right to choose abortion seems to include the right to be protected from thinking about the fetus and from any pain that might result from others talking about the fetus in value-laden terms. In this construct, it is hard to identify any value fetal life might have.

A first step might be a conversation among prochoice leaders that explored what we think about the value of fetal life. You cannot talk cogently about things you have not thought about or discussed. And not thinking leads to mistakes. At times there is a kind of prochoice triumphalism in operation. Abortion is a serious matter; it is a woman’s right and no woman needs to apologize for making this decision. On the other hand, no woman needs to brag about her choice and the decision of one prochoice organization to sell T-shirts announcing, “I had an abortion” was in poor taste and diminished the seriousness of the act of abortion.

A second step might include care not to confuse legal arguments with moral messages. Too often the legal arguments that win in a court of law are the very arguments that lose in the court of public opinion. Antiabortion legislators have played on this tendency by introducing legislation that appears unrelated to abortion, but “protects” the fetus. The most emotionally charged legislation was the Unborn Victims of Violence Act which introduced an extra penalty for anyone convicted of harming a fetus during the commission of certain federal crimes (separate from penalties related to the injury or death of the pregnant woman). It gave separate legal status to a fertilized egg, embryo or fetus, even if the woman did not know she was pregnant. Crafted in the wake of the death of Laci and Conner Peterson, the legislation captured people’s sympathy. Prochoice responses that focused on the fact that the legislation was not needed or that argued that it was a back door attempt to eviscerate the right to abortion made us seem heartless. As difficult as it may be, this may have been one piece of legislation we could have tolerated. In the war of ideas, not every hill is worth climbing.

Up to now, the conventional wisdom in the prochoice movement has been that talking about fetal life is counterproductive. In the polarized climate created by absolutists opposed to legal abortion, a siege mentality has developed. Prochoice advocates fear that any discussion of fetal value will strengthen the claim that if the fetus has value, abortion must be prohibited in all or most circumstances.

Such concerns should not be quickly dismissed. I am deeply struck by the number of thoughtful, progressive people who have been turned off to the prochoice movement by the lack of adequate and clear expressions of respect for fetal life, people who are themselves grappling with the conflict between upholding women’s rights and the right to conscience and respecting the value of nascent human life. A recent article by John Garvey in Commonweal put it well. Struggling with his inability to cast a vote for George Bush for all the usual liberal reasons and his distaste for what he saw as Kerry’s—and by extension the prochoice movement’s—inability to acknowledge one iota of value in fetal life, he said: “Our attitude toward life at this stage has much to say about what we believe about humanity as a whole: this is where we all come from, and at no point does it mean nothing.” Garvey suggests that perhaps there has been a “hardening of the heart” resulting from the prochoice position.

The John Garveys of the world have a point. They are not the enemies of choice. They occupy the middle ground that we seek to convince that being prochoice is morally sound and they sometimes express the wisdom that flows from those who can see different sides in a moral dilemma.

We would do well as prochoice people to present abortion as a complex issue that involves loss—and to be saddened by that loss at the same time as we affirm and support women’s decisions to end pregnancies. Is there not a way to simply say, “Yes, it is sad, unfortunate, tragic (or whatever word you are comfortable with) that this life could not come to fruition.

Surely we agree that young women aged 13, 14, 15 (and even older) need their parents at this time? And surely, our response to date which implies that only teens who are at risk from their parents choose not to tell them rings hollow in the ears of most parents who know that their kids are loath to tell them where they are going on Saturday afternoon, let alone that they are pregnant? The youngest of teens should not have to face an abortion or any medical procedure alone. This is not just about rights; it is a matter of health, safety and compassion.

There are many examples of ways in which those of us who are prochoice could have better responded to unreasonable legislative initiatives by those who are antiabortion, but two are at the top of my list: how we dealt with legislation regarding so-called “partial-birth” abortion and how we should deal with upcoming legislation on the provision of fetal anesthesia in abortions after 20 weeks’ gestation.

It is not easy to isolate this procedure (Partial-Birth Abortion) from a continuum of abortion techniques used after about 15 weeks of pregnancy and the legislation fails to do so, creating a serious obstacle to its implementation. Nonetheless, all methods of abortion along this continuum are grim, as frankly are all late-term abortion procedures. There is nothing aesthetically attractive about the abortion of fully formed, relatively well-developed fetuses and there is equally nothing simple and painless about the situations women face that lead them to seek abortions later in gestation.

We failed miserably, however to touch on the broader unrest about abortion itself that the procedure raised in the minds of many. The movement, some felt, has gone too far when it defends such gruesome procedures. I am convinced that the negative reaction, for example, of some Catholic leaders to Senator Kerry’s candidacy to the presidency was based on his opposition to banning this procedure. In the absence of any other way for prochoice legislators to express a concern about abortion, this bill and others like it became the only way people might have come to believe that prochoice does not mean proabortion. It is as if we demand that our political supporters mask moral concern and merely uphold legal rights because we fear that the expression of any sadness for the loss of fetal life that is part of abortion will be interpreted as weakness.

In the world in which I move, people who support legal abortion do not believe that discussing the morality of abortion is an act of treachery. They do not believe that to suggest that some abortions may happen for less than admirable reasons and to question some behaviors that lead to abortions is antiwoman or antiabortion. In this world people are waiting for some sign that prochoice advocates are not proabortion and are sensitive to the values that are in conflict when abortion is considered or performed. And the lack of concern for fetal life and the gruesome nature of late term abortion procedures in our response to the “partial-birth” abortion debate has pushed some potential supporters over the edge. Is there nothing, they ask, that concerns prochoice people about abortion?

A new opportunity is emerging. Legislation has been introduced by the most extreme antichoice members of Congress to require doctors to inform women seeking abortions after 20 weeks that the fetus may feel pain and offering fetal anesthesia. The bill includes a mandated script that doctors must read to women seeking abortions and specific written consent forms they must sign.

Should our approach to the bill be an immediate assumption that it must be defeated or a reflection on what is the right thing to do if there is a possibility that the fetus feels pain? Since the subject of fetal pain has been written about in medical journals for some time, should the prochoice movement have considered this matter before the bill was introduced? Such a review of the science might have suggested a standard of care that would have made legislation moot.

First, this is one more opportunity to assure the public that we do value fetal life. We are concerned about the possibility that fetuses may feel pain and are committed to ensuring that abortion services are delivered in a way that respects a woman’s right to choose, and that provides her with all available information about the abortion procedure and its risks. To the extent possible, abortion should be a humane and compassionate procedure and although it involves the termination of fetal life, we approach that termination with respect and compassion. Thus, we would recommend that those who provide abortion provide the option of fetal anesthesia.

Such an approach and message would signal a new era in prochoice advocacy—one that combines a commitment to laws that affirm and enhance the right of each woman to decide whether to have an abortion or bear and raise a child with an expressed commitment to human values that include respect for life, recognition of fetal life as valuable and a concern for fostering a society in which all life is valued.

It has long been a truism of the abortion debate that those who are prochoice have rights and those who are against legal abortion have morality; that those who support abortion rights concentrate on women and those opposed focus on the fetus. After 30 years of legal abortion and a debate that shows no signs of ending and has no clear winner—is it not time to try and combine rights and morality, to consider both women and developing human life? Ultimately, abortion is not a political question and politics will not end the enormous conflict over abortion. Abortion is a profoundly moral question and any movement that fails to grapple with and respect all the values at stake in crafting a social policy about abortion will be inadequate in its effort to win the support of the majority of Americans.

FRANCES KISSLING is president of Catholics for a Free Choice.

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