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Is There Life After Roe?
HOW TO THINK ABOUT THE FETUS

By Frances Kissling
Winter 2004/2005

In the thirty years since Roe v.Wade ushered in a new paradigm in the legal understanding of the right to choose abortion, there has been little about the issue that has not been said—and said time and time again. Supporters of choice have argued that it is important to recognize women as autonomous persons with the moral capacity and moral right to decide whether a pregnancy will be aborted or brought to term. We have enhanced our core argument with references to broader values such as religious freedom, opposition to government intervention in our personal lives and the right to medical privacy. The most powerful of prochoice messages has been the multi-faceted question, “Who Decides?” which highlights both women’s rights and keeping government out of the bedroom without ever mentioning either. Inherent in our focus on women’s rights has been our belief that fetal life does not attain, at any point in pregnancy, a value that is equivalent to that of born persons, most specifically women, infants or children who are most often cited in discussions of abortion. Our belief about what value fetal life may possess is not yet well articulated and prochoice supporters are not of one mind on this question. Neither it should be noted are the world’s religions, ethicists or theologians of one mind on this matter.

Those who are opposed to legal abortion seem more certain and monolithic on the question of the value of fetal life. Their core message has been simple: fetal life at all stages of development has an inviolable right to life. Fetuses are, they claim, the most vulnerable persons among us and our humanity requires that we protect them from destruction by intentional abortion. This position did not resonate with most Americans at the time Roe was decided and still has little support. At the time Roe was decided, public opinion largely favored legal abortion and people spent little if any time thinking about the fetus. It was, after all, the mid-1970s, and we were in the midst of a sexual and reproductive revolution brought on by the discovery of the pill and an increasing acceptance of women’s rights. The tragedy of women dying or suffering serious health consequences following illegal abortion was front and center. Added to this was the strong desire, felt by many couples, to have fewer children, which was seen as central to achieving the working class dream of owning your own home, sending your kids to a good college and having more meaningful and better paid work.

For both supporters and opponents of abortion rights, single focus positions have presented some difficulties. Supporters of abortion rights are pushed to the limits on abortions later in pregnancy and on the question of the extent to which abortion can be regulated if not restricted. Those who oppose abortion rights have struggled with the logical conclusion of the claim that there is no distinction in fetal value at any stage in pregnancy and have ended up opposing abortion in tragic cases, such as after rape and for very young women who have been victims of incest. Consistency (and here the phrase, “A foolish consistency is the hobgoblin of little minds,” comes to my mind) has meant that they have had to oppose embryonic stem cell research that could contribute to saving lives and emergency contraception for women who have been raped on the slight chance that a conception may have already taken place.

After a number of failed attempts to overturn Roe outright, opponents of abortion developed a long term incremental legislative strategy designed as much to win the hearts and minds of moderate supporters of abortion rights as to change the law itself. They aimed to chip away at access to abortion services for groups perceived to be powerless and unpopular, such as poor women and adolescents. In the case of poor women, they claimed they did not want their tax dollars to pay for a service they considered immoral. In the case of adolescents, they asserted that no adolescent should be treated without the consent of her parents. However, their major goal was to convince people that fetuses are indeed persons. In recent years, antichoice activists have poured resources into ensuring that the law treats fetuses as persons and highlighting scientific advances in fetal medicine. In spite of the antiabortion movement’s incremental strategy, its leaders are clear that their ultimate goal is an absolute ban on all abortions except those needed as immediate life saving measures. This obstinate insistence on an absolute legal ban is the major obstacle to what might have been the development of an abortion praxis that combined respect for the fundamental right of women to choose abortion with an ethical discourse that included the exploration of how other values might also be respected, including the value of developing human life.

Instead, those committed to the right to choose have felt forced to defend what appears to be an absolute right to abortion that brooks no consideration of other values—legal or moral. This often means a reluctance to even consider whether or not fetal life has value, or an attempt to define that value or to see how it can be promoted without restricting access to legal abortion. As the fetus has become more visible through both antiabortion efforts and advances in fetal medicine, this stance has become less satisfying as either a moral framework or a message strategy responding to the concerns of many Americans who are generally both supportive of and uncomfortable with legal abortion.

RIGHTS AND VALUES
I believe women have a basic human right to decide what to do about a pregnancy. Other well-established human rights concepts bolster this argument including bodily integrity, the right to health, the right to practice one’s religion (or not) and the right to be free from religious laws in modern democratic societies. Despite the assertions of some very intelligent prolifers* that the abortion issue is a question of the human rights of the fetus, the human rights community is moving steadily towards recognizing a woman’s right to choose and there is no countervailing view in this community that even considers the question of whether or not fetuses are rights-bearing entities.

But the abortion issue is not one in which only rights are at stake. There are at least three central values that need to be part of the public conversation about abortion and, as appropriate, influence behavior, if not law. They are:

First, and I would say primary, is our obligation to respect in law and social thought the right of women to bodily autonomy. Generally speaking, nobody should be forced to carry a pregnancy to term without their consent. I am revolted by the thought that a law banning most or all abortions would, if it were to be more than a rhetorical exercise, require an enforcement mechanism that actively forces women to continue pregnancies that they believe to be antithetical to their needs or identities. But the right to choose abortion is not absolute, and in practice and law even those of us most ardently prochoice do not demand absolutism. The law clearly does not recognize that
the right is so fundamental that it requires the government to provide abortion services routinely for free. The first restriction of Roe was the court decision that freed the federal government from the obligation to provide funding for abortions for women dependent on the government for their medical care. Medical ethics, on the other hand, demands that a patient who arrives at a health service at death’s door must be treated even if he or she has no money. Our clinics turn away some women who cannot afford abortions. We insist on full payment in advance, sometimes delaying an abortion until the pregnancy is further advanced and carries a greater risk of complications.

Many accept that post-viability abortions can be denied unless the woman’s life is at risk, the fetus has a condition that is truly incompatible with life or there is a serious health risk to the woman. We are thus prepared to “force,” or at least not to facilitate an abortion at eight months for a woman who is, for example, abandoned by her partner and no longer wishes to have a child. But, with those limits acknowledged, we believe a good society will make it possible for women who do not want to be pregnant to get safe, dignified and compassionate abortion services. It will also do everything it can to help women and men prevent pregnancies if they do not want to have children. This is not necessarily out of respect for the fetus, but out of respect for women. The act of taking life in abortion is defensible and can have positive results, but in and of itself is not a moral good. We should do everything we can to enable people to live lives that affirm human beings and other forms of life that are not harmful to our world. One colleague who reviewed this article noted that the term “right to life” and its unrelenting unrelenting and vague formulation obscures the fact that some life is dangerous and does not deserve to be respected. Cancer cells are a form of life as are viruses like polio and HIV/AIDS. Should they be respected?

VALUING FETAL LIFE
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.

Such an effort will take a lot of work and involve exposing deep differences among supporters of choice regarding our views on the inherent value of fetal life on its own terms and in relation to women’s rights. An interesting thought exercise might help to clarify what prochoice (and antiabortion) leaders believe about fetal value. Imagine a world in which it was possible to remove fetuses prior to viability from women’s bodies and allow them to develop in a nonuterine environment. Perhaps they could be implanted in men or other women who want them; perhaps they could develop in a specially equipped nursery? In this world, medicine is so far advanced that this could be accomplished painlessly and without risking the health of either the woman or the fetus. Of course, this is at present largely a fantasy and by that time we would have found the ideal, risk-free, failure-free contraceptive; but let’s pretend.

What are the first five concerns and reactions that come to your mind? Is one of them the fact that this would mean fetuses need not die? My own experience in presenting this option to both advocates and opponents of abortion is that the fetus’s life is rarely a consideration. 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.

This level of sensitivity to protecting women from their feelings takes other forms. For example, some prochoice advocates have objected to public discussion of abortion that includes concern for the number of abortions that occur in the US or has as its goal reducing the number of abortions. Some bristled at President Clinton’s formula that abortion should be “safe, legal and rare.” If abortion is justifiable why should it be rare? Even the suggestion that abortion is a moral matter as well as a legal one has caused concern that such a statement might make women feel guilty. Words like “baby” are avoided, not just because they are inaccurate, but because they are loaded.

In a society where women have long been victims of moral discourse, these concerns are somewhat understandable, but they do not contribute much towards convincing people that when prochoice people say they value fetal life it is more than lip service.

The reaction of antiabortionists to the idea that a fetus could be removed from the body of an unwilling woman is as troubling. Again, one rarely hears cries of joy that fetal lives would be saved. The focus also is on the woman. But here, the view that women are, by their nature, made for childbearing dominates. Women have an obligation to continue pregnancies, to suffer the consequences of their sexuality. It is unnatural to even think that fetuses could become healthy and happy people if they did not spend nine months in the womb of a woman. One is led to believe that, for those opposed to abortion, it is not saving fetuses that matters but preserving a social construct in which women breed.

THINKING ABOUT MESSAGES
Thought exercises, however, have their limits and there is much that could be done to balance women’s rights with an expression of fetal value without resorting to science fiction. 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.

An interesting example of the way in which some opponents of legal abortion are taking a different approach (which may make prochoice people more comfortable talking about this question) is the current debate in Great Britain about reducing the time limit for abortion from 24 weeks to 20. The impetus for this comes from a minority view on the prochoice side, including Sir David Steel who introduced prochoice legislation in the parliament in 1966. Some in the prolife movement think that the best thing they can do is to sit it out, suggesting that the bishops should not intervene and the more absolutist antiabortion groups should permit this conversation to go on among prochoice people. Perhaps, they speculate, if not threatened by the notion that any restrictive change in abortion laws is part of an antichoice campaign to make all abortions illegal, some moderate change might happen. In citing this example, I am not suggesting that it would be a good thing to reduce the time limit on abortions in Britain, nor do I want to overstate the extent of a prochoice discussion on the matter. Within the organized British prochoice movement there is little if any support for such a move and much distress that some who are prochoice would even consider it. But it does represent an attempt by some who are prochoice to address new information about potential fetal capacity that does not automatically reject thinking about these issues as “antiabortion propaganda.”

In addition to the fear that acknowledging fetal life as valuable would lead to making abortion illegal is the reality that the ethical discussion about when the fetus becomes a person (whether theological, legal, sociological or medical) seems abstract to most people. In theology, the question has traditionally focused on when is it most likely that God gives the developing fetus a soul, a discourse pretty much abandoned by both traditional and innovative theologians; in sociology, most often the capacity for relationships is central—when can one say a meaningful relationship exists between the fetus and society; in medicine, the weight is on viability and on the physical and mental capacity of the fetus—when could it survive outside the womb, when is there higher brain development. Fascinating speculation, but similar to arguments over the number of angels that could dance on a pinhead. The precise moment when the fetus becomes a person is less important than a simple acknowledgement that whatever category of human life the fetus is, it nonetheless has value, it is not nothing.

In this context the various ad hoc remarks of Senator John Kerry are interesting, if flawed. Kerry has said that he “opposes abortion, personally. I don’t like abortion. I believe life does begin at conception.” When later pressed on this he said, “Within weeks, you look and see the development of it, but that’s not a person yet, and it’s certainly not what somebody, in my judgment, ought to have the government of the United States intervening in.” Kerry’s statements reflect what most people think. Personhood is a code word for extent of value, not a fine scientific fact. What those who favor abortion rights are saying is that whatever value fetal life has—from none to much—it is not the moral equivalent of those of us who have been born. In fact, prochoicers argue, there are a number of values greater than the fetus that justify answering the “Who Decides?” question strongly in favor of the woman.

However, once one moves away from the narrow question of when the fetus becomes a person to the more meaningful question of what value does the fetus have and when that value emerges, it becomes difficult to develop an ethical formula for assigning value and asserting the obligations that flow from that value. There is a wide range of respectable opinion on these questions and few hard and fast conclusions.

AN URGENT TASK
But the need to offer some answers from a prochoice perspective is both morally and politically urgent. Those opposed to abortion have moved aggressively for laws that depend on the recognition of the fetus as a person, as a rights-bearing entity. At the same time, there are scientific advances that affect the way we think about the fetus and indeed make it more present among us. For some, these realities lead to a greater connection to fetal life; perhaps not as a person, but as part of the continuum of what we are, of humanity. Examples include 3-D and 4-D pictures of fetuses in utero that appear to be awake, asleep, walking, yawning—engaging in activities that are related to human identity—and the few, very few, very premature babies who struggle and appear to have a great determination to live. Even the reality that pre-embryos used to create stem cells that may ultimately save the lives of thousands makes the embryo more human and more valuable—it can give as well as receive, even at a stage of development that bears little resemblance to even fetal life. Of course, there is an element of my ode to the embryo that is poetic and romantic, even anthropomorphic, as the embryo does not consciously “give;” it is instead useful, but nonetheless that usefulness is a positive quality that should not be feared, but appreciated.

The fetus is indeed a wondrous part of our humanity; we are drawn to it as part of the ongoing mystery of who we are. Do we not question our own value and why we are here, what we contribute and what we take from the world? There is of course a danger in over-romanticizing fetal life or in defining its value primarily in relation to ourselves. For an infertile couple who deeply want a child, someone else’s fetus is very precious and potentially their child. For a woman who has been raped, that fetus may well be seen as a monster. The relation of value to
wantedness is complex and at times troubling. Antiabortionists have countered the “Every child a wanted child” message by pointing out that if wantedness is what gives us value and a right to life, then who among the unwanted will be the next to be declared disposable—the sick, the disabled, the poor or the unemployed?

TOO HARD?
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.

Garvey’s comments are suggestive of the last of the three values I believe must be included in an ethical prochoice perspective: avoiding a coarsening of humanity that can result from the taking of life. Prochoice advocates may bristle at such a claim; we see ourselves as deeply compassionate and good people who are working hard to alleviate women’s pain and to create a world in which children are wanted and loved. How could anyone suggest that our sensibilities could become coarsened by exposure to the taking of fetal life that is currently a necessary component of abortion?

And, while little research has been done on this question, it and history point to no coarsening of respect for persons as a result of legal abortion. Those countries with long-standing liberal abortion laws have been among the most supportive of life. Japan, for example, widely uses abortion as a method of birth control. Yet the respect the Japanese show for the elderly is great and their love of children renowned. While abortion is common in Japan, there are rituals of respect for both aborted and miscarried fetuses that express value. The Scandinavian countries have liberal abortion laws and some of the most people-friendly social policies in the world. There is more evidence that denying women the right to choose abortion leads to a coarsening of attitudes toward children than permitting it does. In Ceacesceau’s Romania, abortion was strictly forbidden and women’s pregnancies monitored closely to prevent abortion. The resulting massive abandonment of children is well known. Likewise, studies of what happens to children born after their mothers were denied abortion in the former Czechoslovakia and several Scandinavian countries show that these children have a significantly higher rate of crime, mental illness and problems in school. (See for example, Born Unwanted: Developmental Effects of Denied Abortion, Henry P. David et al., eds. Springer Publishing Company, 1988.)

For me, a more troubling question is whether or not regular exposure to the taking of life in abortion or the defense of a right to choose abortion would, if not addressed, lead to a coarsening of attitude toward fetal life. The inability of prochoice leaders to give any specific examples of ways in which respect for fetal life can be demonstrated or to express any doubt about any aspect of abortion suggests that such a hardening of the heart is possible. This concern or possibility does not lead me to say that abortion should become illegal, more restricted, more stigmatized. It does lead me to believe that 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. It is sad that we live in a world where there is so little social and economic support for families that many women have no choice but to end pregnancies. It is sad that so many women do not have access to contraception. It is sad that this fetus was not healthy enough to survive and it was good that this woman had the right to make this choice for herself and her family, to avoid suffering, and to act on her values and her sense of what her life should be.”

Are there not ways to affirm and protect the right to choose abortion while actively promoting policies which would actually enhance reflection and good decision making and supporting voluntary mechanisms for nonjudgmental reflection and alternatives to abortion? For example, should we not combine our support for the right of adolescent girls to decide to have an abortion with greater efforts to involve their parents, including seeking funding for counseling for teens facing the abortion decision and their parents as an alternative to mandatory parental consent and notification laws? 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.

RESPONDING TO ANTICHOICE LEGISLATION
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 has long been a strategy of those opposed to legal abortion to concentrate on second- and third-trimester abortions, in spite of the fact that few abortions occur in the third trimester and a very small number in the second trimester. According to the latest figures available, 88 percent of abortions are performed in the first trimester (up to 12 weeks), just over 10 percent are performed between 13 and 20 weeks, two percent after 20 weeks and only 0.08% in the third trimester (after 24 weeks). Among those who do not believe that fetuses are persons from the moment of conception (and the “moment” of conception is a dubious concept), there is a common sense insight that fetal life gains in value as it develops capacity and physical structure and the ability to survive outside a woman’s body. There is a sense that more significant moral justification is necessary for abortions later in pregnancy at the same time as one might hold that those justifications need not be subject to law.

If only, antiabortion leaders say, people knew what happens in an abortion they would turn against abortion with revulsion. Thus, some 10 years ago, legislation was introduced to ban a procedure known medically as intact dilation and extraction except in cases where the woman’s life was at risk. It is not easy to isolate this procedure 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.

There is much blame to be placed at the door of antiabortionists who sought this legislation. In fact, they showed little interest in crafting a bill that would be constitutionally accepted and thus save fetal life. Instead they opted to use the bill as an educational tool—a crass attempt to bombard society with gruesome visual images. The legislation was also dishonest. It tried to use a method of abortion as a surrogate for a desire to ban ultimately all abortions and immediately all post-first trimester abortions. Moreover, had it contained an exception allowing the continuum of procedures to be performed if a woman’s health was at risk, it might even have passed constitutional muster and effectively, if tragically, banned many medically indicated abortions, particularly those performed primarily due to serious damage to fetuses that made it likely or certain that they would not survive birth or a short painful life.

Responding to such traps is not easy for those who are prochoice but our movement, as is often the case, did an excellent job in the courts pointing out the legal and constitutional flaws of the legislation. 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. I believe that the exact opposite is true. The prochoice movement will be far more trusted if it openly acknowledges that the abortion decision involves weighing multiple values and that one of those values is fetal life. These acknowledgements must be made at the same time and with the same vigor that bad legislation is criticized and fought.

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?

The intact dilation and extraction debate has about run its course. Prochoice forces have won the legal argument again and again, as we should. The most recent attempt at legislation will most likely be ruled unconstitutional. But the question remains whether we emerge from that debate having won any hearts and minds. Who looks extreme in the strategic tug of war between prochoice and antiabortion forces—in which characterizing the other side as extremists is a key, if less than admirable goal?

A NEW FRONTIER
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. The wording of the script doctors are required to use is cruel. It is not completely accurate, is highly judgmental and completely negates the basic principles of good patient care, in which a health professional needs the freedom to decide how best to convey important information to patients. However much compassion its sponsors believe they are expressing for the fetus, they are totally insensitive to how to care for women at a very difficult moment.

More important than this specific bill is the underlying issue of whether or not fetuses feel pain during abortion and what that possibility requires of us. 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. Those in the community involved in providing abortion services would have, in consultation with ethicists, fetal surgeons, anesthesiologists, gynecologists and women, weighed the evidence. If there were reliable evidence suggesting the possibility that fetuses might feel pain, a protocol would have been developed. Standard medical practice for abortion at that stage of pregnancy when fetal pain was a possibility would subsequently include either routine use of fetal anesthesia or the offer of anesthesia when requested by the woman following sensitive and careful counseling about the possibility that the fetus might feel pain.

The optional route would be preferred if there was any indication that fetal anesthesia posed a significant risk to the woman. At present, there is little information about what additional risks such anesthesia might present to the pregnant woman. Concerns that the additional cost of anesthesia would raise the cost of abortion beyond the means of some women, while serious, would be seen as a problem to be solved. Treating the fetus humanely during the termination of its life would be seen as an important human value—more important than the extra cost factor. One might even go so far as to seek prochoice legislation that would offer reimbursement for anesthesia costs, possible through CHIP (the federal Children’s Health Insurance Program) that since 2002 has covered fetal health. If such protocols were established by groups like Planned Parenthood and the National Abortion Federation as well as the American College of Obstetricians and Gynecologists, the need for federal or state legislation mandating such services would be largely eliminated and if antiabortionists proceeded, it would be enormously positive for the prochoice community to be able to say that we have thought about and solved this problem ourselves in conformity with the highest medical and ethical standards.

Should the fetal pain legislation move forward, as appears to be the case, what would a response that combined respect for a woman’s right to choose, a compassionate and respectful attitude toward fetal life and a desire to ensure that our society does not approach life callously, look like? What message would we want to send to the public?

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.

After clearly establishing that value, we could and should address the legislation itself. While the desire to ensure that no unnecessary suffering is experienced by women or fetuses in abortion is a noble one, this specific piece of legislation is insensitive to women’s health and well being. The extent of intervention into the private relationships between doctor and patient exceeds the boundaries of medical ethics. Further, legislation in this area is unnecessary given the commitment of the profession and advocates to anesthesia. If the proposed legislation is to go forward, it needs serious amendment.

At present we do not know whether the fetus experiences pain and there are even differences of opinion about the definition of pain. Funding for further objective scientific research that could answer these questions should be provided to the National Institutes for Health.

While the science at this stage is inconclusive, there are scientists who consider fetal pain possible who are reputable and not motivated by politics. A law that would mandate that anesthesia be made available on an optional basis should thus focus on the principal barrier to its provision, cost. The bill must allocate funds to cover the costs of the additional personnel, equipment and medical supplies needed to provide this service. Beyond requiring that women be informed of the availability of anesthesia and give informed consent for its use, no specific wording should be mandated either verbally or in writing. Doctors should be allowed to
exercise their judgment regarding what words best express the medical facts and how that information is best conveyed to women at a difficult time. Compassion for women is as important as compassion for fetuses. The title and language of the bill should be non-polemical and avoid loaded terminology. While there is a reasonable argument to be made that medical practice should not be the subject of legislation, this argument has limits. It is also true that health is an appropriate matter of legislation and as long as medical privacy and the right of doctors to make medical decisions in the interests of their patients is preserved, we want laws that protect public health. Medical practice is complex and best regulated by professional associations, accrediting agencies, but it is not completely beyond the scope of law.

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.

HONORING LAW AND MORALITY
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.