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An argument in favor of abortion because it is every womans right

Walter Dellinger Summer 1990 Many commentators are saying that "extremists on both sides" in the abortion debate need to compromise. But a close analysis of current proposals shows that even "moderate" restrictions impose real harm on many women.

Reproductive Health Services has turned abortion into a central issue of majoritarian politics: Many prominent commentators are concluding, however, that the "extremists on both sides" must yield to the quieter voices in favor of moderate solutions and legislative compromise. That view, it seems to me, is profoundly mistaken. The calls for compromise are appearing with increasing frequency. Historian Fred Seigel, for example, writes in a recent issue of The Atlantic that the abortion issue "pits advocates for women's rights against proponents of fetal rights on an issue that cries out for the compromise heartily desired by the vast majority of the American people.

Following the adoption last fall of Pennsylvania legislation precluding most abortions in public hospitals, requiring a 24-hour waiting period, and making every married woman certify in writing that she had informed her husband about her plans for an abortion, the editors of The Washington Post offered a reassuring opinion: It is our suspicion. There will be skirmishing around the edges for years on questions such as funding and parental notification.

Some legislatures will adopt some restrictions, but then the voters will have the final word. In a number of states, minor changes may be accepted. But basic rights will not be withdrawn.

Not only popular publications have argued that legislative compromise on abortion is inevitable and desirable. The argument that legislatures will and should gradually compromise on moderate legislative restrictions received serious scholarly support from the publication two years ago of an ambitious comparative study, Abortion and Divorce in Western Law, by Harvard Law Professor Mary Ann Glendon.

Wade, Glendon argues that Roe endorsed an "extreme and isolating version of individual liberty" and contrasts that with the more "communitarian" approach she finds in Europe where most countries take a "middle position" of disapproving abortion in principle while permitting it in circumstances deemed by the legislature to constitute good cause.

She draws a sharp contrast between the European situation and that of the United States where "to a greater extent than any other country, our courts have shut down the legislative process of bargaining, education, and persuasion on the abortion issue.

Wade "insulated the pregnant woman from the larger society" and that it precluded humane statutory initiatives and supportive communitarian approaches an argument in favor of abortion because it is every womans right the problem of abortion and unwanted pregnancy.

Nothing in Roe v. Wade, however, precluded a woman from choosing to consult her parents, spouse, minister or supportive friends about her decision; nothing in Roe precluded government from reducing the number of abortions by making more effective birth control widely available; nothing in Roe v.

Wade precluded the community from providing the financial support that would make it easier for more women to choose to have more children. What Roe foreclosed was not communitarianism, but compulsion.

Arguing that a world without Roe "would not necessarily represent a setback for women," Glendon asserts that it is erroneous to conclude that "no compromise is possible" on abortion. The continental experience, she concludes, shows that when the legislative process is allowed to operate, political compromise is not only possible but typical.

Even though I am naturally inclined to welcome suggestions for ameliorating contentious issues, I want to argue here that proposed "compromise" restrictions on abortion are unacceptable.

What is proposed as compromise simply does not satisfy the concerns of those who find abortions morally troublesome. But the "moderate" restrictions in force and those now being introduced do impose real harm on many women and fall with such disproportionate force upon the less fortunate that they offend fundamental principles of equality.

The kinds of abortion legislation being advanced in the sheep's clothing of compromise fail to take into account the social and economic reality of abortion in America. Some "intermediate" restrictions now being proposed are coercive laws that would seriously curtail all women's autonomy. Other proposals would retain access to safe and legal abortion for affluent urban women while compromising away the rights of young, poor, uneducated, and rural women.

Many compromise legislative proposals are disguised trades that would enable those who are affluent to retain access to abortion for now at least in exchange for "moderate" restrictions that place abortion out of the reach of less fortunate women.

About the Author

It is a devil's bargain, and it must be rejected. Legislative proposals to regulate abortion fall into these general categories: Each type carries its own perils. Restrictions on Access Requirements that all second trimester abortions be performed either in hospitals or in clinics resembling small hospitals may raise the cost of abortion but do not seem wholly to preclude the exercise of choice.

Similarly, a mandatory waiting period recently enacted in Pennsylvania and now under consideration in several other states may not seem an undue burden from the perspective of an urban professional woman. But from the perspective of a young pregnant woman, eighteen years old, unmarried and living in rural North Carolina, a different picture emerges.

Seemingly innocuous requirements may have devastating consequences. A low-income, eleventh grade girl struggling to finish high school and prepare herself for life may have limited access to transportation and never, in fact, have travelled out of the rural county where she was born.

A 24- or 48-hour waiting period may necessitate two long trips and an overnight stay in a strange and distant city. To The Washington Post, such legislative requirements may seem no more than "skirmishing around the edges," minor impediments in a world of otherwise easy access to "abortion on demand.

Stephen Wermiel and Michel McQueen report in The Wall Street Journal that "abortion is already scarcer and more difficult to obtain in many parts of the country than the existence of a constitutional right implies. Women in western Missouri who want a second trimester abortion must either drive the 250 miles across the state or cross into Kansas.

Legislative restrictions can be, and often are, the final straw. The ban on Medicaid funding of abortions for the poor, coupled with a ban on performance of abortions in hospitals receiving public assistance upheld in the Webster decisionseverely curtailed access for many.

Unnecessary clinic regulations and mandatory, though medically unnecessary, tests add even more to the cost.

More From This Issue

If hospitalization is required and public hospitals are barred from participation, only expensive private hospitals, often distant and inaccessible to the poor and the young, will remain. One of the principal consequences of many abortion access restrictions is that they delay abortion. Delayed abortion creates a greater health risk, especially for teenagers.

  • Women in western Missouri who want a second trimester abortion must either drive the 250 miles across the state or cross into Kansas;
  • The most plausible reading of the ambiguous polling data is that Americans personally condone or disapprove of abortion for a variety of reasons, but, in the end, prefer to leave the choice to individual women;
  • As Mary Ann Glendon notes, "Unlike partisans on either side, the public seems to believe that there is an important difference between early and late stages of gestation;
  • A physical condition that "might" result in severe health damage to the woman would not be sufficient.

These delays may be lengthy for many young women, especially those who are poor and less well informed: Or they may find it necessary to delay the abortion while raising funds or seeking transportation to a distant location. Delay is not the only adverse consequence of the mandatory parental involvement laws now on the books in more than thirty states.

As one lower court noted, "Although family relationships benefit from voluntary and open communication, compelling parental notice has an opposite effect. It is almost always disastrous.

Some vomited and one began to abort spontaneously during the court process. That so many abortion access regulations are dysfunctional in practice should not be surprising.

Such laws are seldom actually motivated by their ostensible goals of enhancing family relationships or protecting women's health. They are instead intended to prevent as many women as possible from having abortions. At that unstated goal they often succeed. In the four years following the implementation of a two parent notification law in Minnesota, the birth rate among Minneapolis women aged fifteen to seventeen rose 38.

By pricing and regulating abortion beyond the reach of many women, access restrictions draw a line across society on social and economic grounds. Above that line women continue to have access to safe and legal abortions; below it women are relegated to illegal, dangerous alternatives, or forced into continued pregnancy and childbirth. The more regulations the states impose, the higher the line goes.

Restrictions on Timing More than 90 percent of all abortions in America now occur within the first twelve weeks of pregnancy. Nonetheless, the pro-life movement has succeeded in making late-stage abortions a prominent public issue, often exemplified by graphic pictures of fetuses aborted at advanced stages of development. Proposed laws that limit the performance of abortions to the earlier months of the gestational period appear to respond to legitimate concerns. Later abortions are more dangerous than earlier abortions.

And for many, abortion turns morally problematic as an argument in favor of abortion because it is every womans right months change a microscopic fertilized ovum 62 percent of which will spontaneously abort into a fetus that toward the end of pregnancy fully resembles a human infant. There is no good reason why as many as 10 percent of American abortions should still take place at so late a stage, especially considering the greater health risks to pregnant women caused by delaying abortion.

As Mary Ann Glendon notes, "Unlike partisans on either side, the public seems to believe that there is an important difference between early and late stages of gestation. If anyone active on the abortion issue is responsible for the unnecessarily high percentage of late abortions now being performed, it is those who march under the pro-life banner.

As a result of Roe v. Wade, abortion became not only safer and cheaper, but also far more likely to be performed very early in pregnancy.

Should We Compromise on Abortion?

Some late abortions will always be necessary as fetal abnormalities are discovered or as threats to a woman's health emerge during pregnancy. More importantly, the way to prevent late abortions is not to obstruct or delay early abortions.

  1. To The Washington Post, such legislative requirements may seem no more than "skirmishing around the edges," minor impediments in a world of otherwise easy access to "abortion on demand. Better access to abortion, as noted above, helps prevent late abortion.
  2. In spite of her much heralded prediction of legislative moderation and praise for "compromise" laws on the European model, Professor Glendon offered crucial assistance to the passage of the drastic Idaho bill by writing a letter, widely circulated by Idaho pro-life leaders, stating, "I certainly consider the bill to be constitutional" and noting, "As for the appropriateness of the bill to Idaho circumstances, it is my earnest hope that that decision will be made in Idaho and remade when and if needed , rather than in Washington. Although the literal wording of the above questions called for respondents to state when a "woman should be able to obtain a legal abortion," respondents were likely giving their own personal views of when one "should" or "should not" have an abortion.
  3. As one lower court noted, "Although family relationships benefit from voluntary and open communication, compelling parental notice has an opposite effect.
  4. As a result of Roe v. Unnecessary clinic regulations and mandatory, though medically unnecessary, tests add even more to the cost.

The women most likely to delay until the second trimester are those who are poor, young, and without access to local, affordable providers. The absence of funding for abortions and the presence of waiting periods, consent requirements, and other needless regulations will push many American abortions into the second trimester.

The adoption of a parental notification law in Minnesota, for example, caused the percentage of minors obtaining second-trimester abortions to rise by 26 percent. Adding to these burdens will increase the number of late abortions; eliminating restrictions would reduce the number.

Glendon praised European statutes for setting a gestational time limit for legal abortions.

  1. That view, it seems to me, is profoundly mistaken.
  2. A woman who wants to end a pregnancy may go to her well-publicized, accessible, free, neighborhood public health clinic and in complete confidence obtain an abortion.
  3. The ban on Medicaid funding of abortions for the poor, coupled with a ban on performance of abortions in hospitals receiving public assistance upheld in the Webster decision , severely curtailed access for many. A woman who wants to end a pregnancy may go to her well-publicized, accessible, free, neighborhood public health clinic and in complete confidence obtain an abortion.
  4. These statutes, however, operate in a wholly different context from ours. Better access to contraception helps prevent abortion altogether.
  5. As a result of Roe v. After Idaho, we know that some state legislatures will not be content with "moderate" restrictions that "merely" foreclose abortion for the most vulnerable women.

These statutes, however, operate in a wholly different context from ours. Glendon notes that Sweden's cutoff for abortion is eighteen weeks, after which permission from a national board is required.

But in Sweden the government does everything possible to ensure that any woman who wants to terminate her pregnancy may readily do so in the first eighteen weeks.

A woman who wants to end a pregnancy may go to her well-publicized, accessible, free, neighborhood public health clinic and in complete confidence obtain an abortion. In most of the Western world outside the United States, Janet Maslow Cohen notes, a woman who is legally entitled to an abortion will find that "her government will support her abortion decision in the two most equality-promoting ways that government can -- by providing her with the safest procedure available in her society and by helping to pay for it.

In this country, legislative deadlines for abortion would co-exist with access regulations designed to prevent women from being able to meet the deadline. No state truly concerned about either the increased maternal health risks or the moral implications of late abortions should consider the coercive step of prohibiting second trimester abortions while simultaneously pursuing policies that cause abortion to be delayed.

Third trimester abortions -- those near or after the point of fetal viability -- are almost always a medical crisis, and usually tragic events. But they do not pose a public policy issue, for a simple reason: Nancy Rhoden notes, "Essentially the only defect for which abortion will be performed after week twenty-four is anencephaly. Abortion should be permissible at any time for this defect, because the anencephalic fetus, or infant, is never viable. It is not clear how government regulators could provide any meaningful assistance in these very rare and tragic circumstances.

Legislators who are troubled in principle by late abortions should support instead measures ensuring that every woman who wants to terminate a pregnancy can do so as early and as safely as possible.

There are further ironies. Better access to abortion, as noted above, helps prevent late abortion. Better access to contraception helps prevent abortion altogether. Yet strong elements in the pro-life movement oppose contraception as well.

The United States has fallen far behind other advanced countries in the research and development of birth control choices. According to a 1990 study by the National Academy of Sciences, as many as two million unwanted and unplanned pregnancies occur each year because of contraceptive failure; between one-third and one-half of all abortions in America could be prevented if more birth control options were available.