Finding middle ground on abortion

ELECTION DAY 2020 approaches amid pandemic, police brutality, renewed alarm about racism, anxiety about reopening schools and businesses, and social division and political polarization. While public attention is understandably elsewhere, extremist activism around abortion is still part of the public story and threatens at any time to explode. On one side are continuing highly politicized efforts to get state laws that will become the basis for overthrowing the original Roe vs. Wade abortion decision. This spring the Supreme Court turned back a Louisiana law severely limiting abortion, but the arguments in that case and the politics of federal courts show promising signs for pro-life activists. On the other side are my fellow Democrats, who are lining up nationally to repeal the Hyde amendment, a long-standing bipartisan measure to refuse public funding for abortions, and to “codify” Roe vs. Wade by embedding the “right to choose” in federal law.

That pledge to codify is reflected in a recent law passed in New York and one proposed here in Massachusetts, where a late effort was made to revive a “Roe bill” set aside earlier in the legislative session. That bill would remove all legal restrictions of abortion at any stage, remove the requirement of parent permission for abortion for a minor, and eliminate legal requirements to protect the life and health of a baby born during an abortion procedure. In the politics of abortion both sides are still playing to their base. By focusing attacks on the supposedly immoral extremism of the other side, pro-life and pro-choice leaders help poison our political discourse.

I would like to assess the proposed Massachusetts Roe bill and suggest a constructive way to overcome this long and chronic division in our communities and our country.

I have always admired Planned Parenthood for its dedicated work to improve women’s health care, promote sex education, and prevent teen pregnancy. I am confident that most Planned Parenthood personnel, while pro-choice, would support provision of services to enable women with troubled pregnancies to carry their babies to birth if they choose to do so. That seems to me a requirement of any serious person, whether pro-life or pro-choice. Obviously, we should insist as well that women have access to contraception. We are indebted to Planned Parenthood for a century of working on that issue, and that fight is far from over.

Unfortunately, abortion service has become the lightning rod that leads conservatives across the country to work to “defund” Planned Parenthood, eliminating public financial support for all its work and persuading private donors to so the same. That would be very harmful for many people in our communities.

This hostility might have been avoided. In researching the history of the Catholic community of Syracuse, New York, I learned that in 1975 the Catholic bishop of that city established a new office to serve women with troubled pregnancies. The diocese hired as director a woman whose previous work had been with the local Planned Parenthood office. The new agency did good work but opposition arose because of the policy that if a woman, after counseling and support, decided to have an abortion, the staff would refer her to a licensed provider and, when appropriate, accompany her through the process. But, as Catholic teaching hardened and the anti-abortion movement grew, such pastoral care became unacceptable and the bishop was pressured to accept the director’s resignation.

The literature of abortion politics contains many similar stories. The issue once cut across partisan lines, but from the late 1970s on divisions, often faith-based but highly politicized, dismantled community consensus, made abortion a partisan grenade, and eroded mutual respect.

As the issue developed most Republican politicians spoke up against abortion rights and Democratic politicians became near automatic supporters of abortion on demand. And Planned Parenthood has not been an innocent bystander in that theater of the culture wars.

Now the organization is a strong advocate for a Massachusetts Roe bill. There are beneficial elements of the Massachusetts proposal, like extending late abortion permission when there is a clearly fatal abnormality in the baby. But it is not correct to say that this is the main provision of the proposed Roe bill, which in fact removes all restrictions on and reviews of abortion at any stage of pregnancy.

The material circulated by Planned Parenthood during legislative briefings has three problematic issues, one clearly debatable and the other two extending from the wider abortion debate. The debatable issue is the removal from the current law of the requirement for parent permission for abortion for minors. Critics will properly ask why parent permission is needed for an aspirin — or immunization, required for camp and school – but not for an abortion. I fully understand the conscientious difficulties that face teachers, advisors and medical personnel when a pregnant teen faces abusive parents. But Mass. General Law, Chapter 112, Section 12S already provides for judicial bypassing of parental judgement; that segment would be withdrawn if the present law passes. Would it not be better to maintain that existing law, while providing maximum support for school nurses, youth workers, and community medical centers to be available to assist pregnant teens and if necessary facilitate the judicial bypass?

The other two issues are at the center of the abortion debate. A brochure handed out by Planned Parenthood proclaims, “Abortion Is Health Care.” It would be more honest to say, “Abortion Is Health Care For Mothers,” for it is not health care for the baby, especially if said baby is healthy and ready for life after birth.

Since long before Roe this has been one major piece of the debate: Is abortion a moral/ethical question, or is it simply a medical procedure? I had a brief, friendly relationship with one of the most active pro-choice women in the country and she privately, and later in debates, admitted that no, after viability, it is not just a medical procedure but a question open to moral debate. She argued that moral choice for or against abortion is exclusively with the mother, but it is a moral choice.

Pro-choice advocates of course have tried to blend abortion seamlessly into larger health care for women questions. And legally the big issue has never been just Roe, but Doe vs. Bolton, decided the same day, which so extended “health” as to make it very difficult for states to restrict late-term abortion. If you read the proposed new state laws to “codify Roe” one key provision is to make clear the wide range of “physical and mental health” that the woman and her doctor should consider, voluntarily, after all reviews of their decision are removed. Planned Parenthood, by stressing health care for women, all but closes the door to discussion with those who think a serious moral question is involved. And the Democratic Party is close to doing the same.

The other big and related question is the status of the baby. Does the unborn baby have any rights before birth? Several states have drawn on “rights” to maximize considerations to the baby but the courts have understandably resisted arguments about the “rights” of the baby. But they have insisted that the baby’s well-being matters. This led the Supreme Court to gradually move the question of late-term abortion from privacy of the maternal medical decision to protecting viable babies while not imposing an “undue burden” on the mother’s access to abortion.

Of course neither side is satisfied. In extremist politics pro-life advocates want protection of the baby “from conception,” while their pro-choice counterparts believe there should be no legal barriers to a woman’s choice no matter the status of the baby.

Of course the point is the status of a post-viability baby. We should avoid detaching, emotionally barren language about the fetus, and say the baby and mother, as we would in any intentional pregnancy.  Mother and baby go together, and, if we separate them, certainly as viability becomes more certain, we all get in trouble. That separation is one source of the now polarized debate, and bringing them together in thought as they are in fact may be one potential area of strategic peace building.

Rather than focusing on pre-natal rights, we might ask, do we, the public, have any responsibilities for the baby and the baby’s mother? Most of us would want to be sure the mother has all needed health care. But are we indifferent to the baby until it is born? If we are, then are we sure we have responsibilities when the child is born? The proposed Massachusetts legislation simply eliminates Section 12P of Chapter 112, which provides that if a late-term abortion takes place “the physician performing the abortion shall take all reasonable steps, both during and subsequent to the abortion, in keeping with good medical practice, consistent with the procedure being used, to preserve the life and health of the aborted child.”

The public responsibility question was very important to the Supreme Court but it gets blank stares from many of my pro-choice friends, perhaps because we are so formed in rights and responsibilities around individuals and have only a weak sense of shared social or public responsibilities. But some of us think that shared social responsibility is a fact, not an option. Our need to care for each other is built into the human condition.

In my judgement some degree of solidarity must inform any serious, small d, democratic theory and practice of pre-natal health care. The issue is so polarized that I am not likely to persuade Planned Parenthood supporters, or knee-jerk pro-choice Democrats, much less pro-life extremists who seem indifferent to the mother, to come all the way to serious shared and legally embodied social responsibility for both mother and baby. But I would hope to persuade my liberal and Democratic friends that denying any responsibility at any stage for the baby in the baby-and-mother unit starts a very slippery moral and political slope.

In response to these arguments one is told that there are only a few post-viability abortions, and good people would never abort a soon-to-be-born baby unless there were serious reasons. We should just trust mothers and their doctors. That argument reflects uneasiness to admit the moral question involved. At one end we have the fact that with ever-improving technologies viability comes earlier and earlier. At the other end we have the technical capability to bring an unwanted live baby to birth, unless we can kill the baby while still – a fetus and not a baby – watch that language again – so that “it” is born already dead. Surely we can construct laws better than that.

Before turning to the politics of abortion a word about religion. While I am a Roman Catholic I am not trying to make an argument based on faith commitments but one based on widely accepted standards of care for human life. There is an argument that “medically life begins at birth” and that is the basis of the claim that abortion is simply “women’s health care.” But there are many people, not all religious, who would question that statement. Most would also challenge the extreme pro-life claim that “life begins at conception.” In both cases we would distinguish between personal, private and communal understandings, where there are deep differences and room is needed for diverse practices; that is why we have “conscience clauses” exempting medical personnel from assisting abortions and taxpayers from contributing to the financial costs of abortions. Private services provided by citizen contributions help bring about public goods while honoring conscientious differences.

But in addition to personal and communal convictions we have public issues, and laws. Many of us are convinced that as a community we have a responsibility to protect human life, avoid direct and intentional taking of innocent human life, and to that that responsibility must be extended in some way to viable not yet born babies, recognizing that each is intimately connected to a mother who also deserves our respect and protection. This is the point of most Supreme Court deliberation since Roe. Members of the Massachusetts House and Senate may continue to brush off arguments like this as religious. I would urge them, and my fellow Democrats, to face the fact that whatever one might think of religions and religious spokespersons, these are conscience matters for many of our citizens.

The politics of abortion need not be so polarized. The public at large for years has been modestly pro-life and pro-choice. Activists at the two extremes work on the almost even split in polling between those who think abortion should be “all or mostly” forbidden or “all or mostly” allowed. But if one listens carefully, the “mostlys” on both sides are far more than a majority and are not that far apart. Pew’s studies in 2019 showed 55 percent of all adults thought abortion should be “legal with some restrictions” and another 16 percent thought it should be “illegal with some exceptions.” The total of those two, over 70 percent, held among both those who “were and leaned Republican” and “those who were or leaned Democrat.”

More recently Pew reported that 3 in 10 in both parties disagree with their party’s stance on abortion. The remaining 7 are by no means in favor of allowing or preventing all abortions. Running through books about the movements is plenty of evidence that the vast majority of Americans show respect for both baby and mother.

The “mostlys” are mostly pro-choice before viability, mostly at least a little pro-life, at least in allowing for review, after viability. Elected Massachusetts Democrats, many in “safe seats,” could assist the national debate by indicating that they are pro-life: in sympathy with unborn children, and pro-choice: in sympathy with the autonomy and dignity of mothers. And baby and mother go together and we should do everything we can to avoid putting them in opposition to one another. So we Democrats respect Roe, respect the Court and are confident the justices will do their best to find the right balance between the community’s unequivocal commitment to the dignity and freedom of pregnant women and the community’s responsibility to protect human life. If the court finds that complicated, and avoids extreme resolution, so should we all.

There is nothing to celebrate in abortion, any abortion, and nothing to celebrate in passage of a permissive Roe bill, as some did in New York. And there is nothing to regret in trusting women, their families, and their caregivers, who should make the decision, privately, in almost but not all cases. And the rest of us, who value mothers and babies, should do what we can to make sure that mothers have all that they need to choose wisely and well, and that babies, all of them, are welcomed, before, during, and after birth.

David O’Brien is an emeritus professor of American history and Catholic studies at the College of the Holy Cross.