A Supreme Court abortion decision is expected any day. Here’s what you need to know.

The U.S. Supreme Court traditionally releases its major opinions in the month of June. We have already seen blockbuster rulings on LGBT employment discrimination and DACA. Next up: June Medical Services v. Russo, which will determine the fate of a Louisiana law requiring abortionists to have admitting privileges at a hospital within 30 miles of their practice.

Image via the Katrina Jackson for
Senate District 34 facebook page

The common-sense, bipartisan law was spearheaded by then-state representative (now state senator) Katrina Jackson (pictured), a Democrat. It is not a direct challenge to Roe v. Wade. Instead, it seeks to harness the power of existing medical institutions to identify and stop abortionists who are especially dangerous to women. As pro-choice author William Saletan noted years ago in his chilling Back Alley series, the medical community knows full well who these shoddy abortionists are and quietly declines to work with them — but historically, they have refused to speak up for political reasons. Admitting privileges requirements make these “open secrets” truly open, and force the abortion lobby to live up to the “safe” part of its empty motto.

Side note: Any news coverage of this case that fails to mention Kevin Work is sham journalism. He’s exactly the type of abortionist that Louisiana’s law is meant to address. Read more about him here
Louisiana’s law is similar to the Texas law that the Supreme Court tragically struck down in Whole Woman’s Health v. Hellerstedt, although the Fifth Circuit Court of Appeals noted some differences when it upheld Louisiana’s law in 2018. Pro-life advocates were horrified by Hellerstedt, which prioritized abortion access and industry profits over women’s safety. Hellerstedt was a 5-3 decision, when the Court had only eight Justices due to the death of Justice Scalia. (The three in the minority were Chief Justice Roberts and Justices Thomas and Alito.) Since then, pro-abortion Justice Kennedy has retired, and Justices Gorsuch and Kavanaugh — widely believed to support the right to life — have joined the Court. 
Here are the possible outcomes to watch for in Russo, from worst to best:
  • The Supreme Court strikes down Louisiana’s law. This would mean that at least one of the Justices believed to be an anti-abortion vote is not, and that pro-life groups have received little in return for their decades of putting up with the Republican Party. If this happens, expect absolute chaos to ensue.
  • The Supreme Court upholds Louisiana’s law without overturning Hellerstedt. This would essentially ratify the Fifth Circuit’s approach. Lower courts would be instructed to consider other states’ admitting privileges laws on a case-by-case basis, depending on such factors as the number of abortionists in the state and what criteria the state’s hospitals use to grant or deny admitting privileges. 
  • The Supreme Court upholds Louisiana’s law, recognizes its past mistake, and reverses Hellerstedt. This would be a victory for women’s health and babies’ lives.
  • The Supreme Court finds that the plaintiffs lack standing. This is a long shot, so don’t get your hopes up, but a decision on the basis of standing would be huge. The legal concept of standing means that a person can’t sue merely because they dislike a law; they have to have a certain level of direct involvement. To give an obvious example, the plaintiffs in the LGBT employment discrimination cases decided earlier this month were, not surprisingly, LGBT people whose employers discriminated against them. In Russo, the plaintiffs are arguing that Louisiana’s law unduly burdens women’s right to an abortion — but the plaintiffs in Russo aren’t women, much less pregnant mothers seeking abortions and facing legal burdens. The Russo plaintiffs are abortion companies whose hired abortionists don’t have admitting privileges. Although many past cases have involved abortion companies legally standing in for abortion-seeking mothers (e.g. Planned Parenthood v. Casey and Hellerstedt), allowing that type of substitute standing in a safety regulations case creates a serious conflict of interest. Women’s desire to obtain the best possible care and avoid quacks like Kevin Work is directly at odds with abortion vendors’ desire to cut costs. If the Supreme Court finally expresses some long-overdue skepticism at the idea that abortion businesses represent women’s interests, our legal system could finally escape, or at least reduce, the influence of abortion industry money.
Dr. Michael New of the Charlotte Lozier Institute puts it best:

A Supreme Court abortion decision is expected any day. Here’s what you need to know.

The U.S. Supreme Court traditionally releases its major opinions in the month of June. We have already seen blockbuster rulings on LGBT employment discrimination and DACA. Next up: June Medical Services v. Russo, which will determine the fate of a Louisiana law requiring abortionists to have admitting privileges at a hospital within 30 miles of their practice.

Image via the Katrina Jackson for
Senate District 34 facebook page

The common-sense, bipartisan law was spearheaded by then-state representative (now state senator) Katrina Jackson (pictured), a Democrat. It is not a direct challenge to Roe v. Wade. Instead, it seeks to harness the power of existing medical institutions to identify and stop abortionists who are especially dangerous to women. As pro-choice author William Saletan noted years ago in his chilling Back Alley series, the medical community knows full well who these shoddy abortionists are and quietly declines to work with them — but historically, they have refused to speak up for political reasons. Admitting privileges requirements make these “open secrets” truly open, and force the abortion lobby to live up to the “safe” part of its empty motto.

Side note: Any news coverage of this case that fails to mention Kevin Work is sham journalism. He’s exactly the type of abortionist that Louisiana’s law is meant to address. Read more about him here
Louisiana’s law is similar to the Texas law that the Supreme Court tragically struck down in Whole Woman’s Health v. Hellerstedt, although the Fifth Circuit Court of Appeals noted some differences when it upheld Louisiana’s law in 2018. Pro-life advocates were horrified by Hellerstedt, which prioritized abortion access and industry profits over women’s safety. Hellerstedt was a 5-3 decision, when the Court had only eight Justices due to the death of Justice Scalia. (The three in the minority were Chief Justice Roberts and Justices Thomas and Alito.) Since then, pro-abortion Justice Kennedy has retired, and Justices Gorsuch and Kavanaugh — widely believed to support the right to life — have joined the Court. 
Here are the possible outcomes to watch for in Russo, from worst to best:
  • The Supreme Court strikes down Louisiana’s law. This would mean that at least one of the Justices believed to be an anti-abortion vote is not, and that pro-life groups have received little in return for their decades of putting up with the Republican Party. If this happens, expect absolute chaos to ensue.
  • The Supreme Court upholds Louisiana’s law without overturning Hellerstedt. This would essentially ratify the Fifth Circuit’s approach. Lower courts would be instructed to consider other states’ admitting privileges laws on a case-by-case basis, depending on such factors as the number of abortionists in the state and what criteria the state’s hospitals use to grant or deny admitting privileges. 
  • The Supreme Court upholds Louisiana’s law, recognizes its past mistake, and reverses Hellerstedt. This would be a victory for women’s health and babies’ lives.
  • The Supreme Court finds that the plaintiffs lack standing. This is a long shot, so don’t get your hopes up, but a decision on the basis of standing would be huge. The legal concept of standing means that a person can’t sue merely because they dislike a law; they have to have a certain level of direct involvement. To give an obvious example, the plaintiffs in the LGBT employment discrimination cases decided earlier this month were, not surprisingly, LGBT people whose employers discriminated against them. In Russo, the plaintiffs are arguing that Louisiana’s law unduly burdens women’s right to an abortion — but the plaintiffs in Russo aren’t women, much less pregnant mothers seeking abortions and facing legal burdens. The Russo plaintiffs are abortion companies whose hired abortionists don’t have admitting privileges. Although many past cases have involved abortion companies legally standing in for abortion-seeking mothers (e.g. Planned Parenthood v. Casey and Hellerstedt), allowing that type of substitute standing in a safety regulations case creates a serious conflict of interest. Women’s desire to obtain the best possible care and avoid quacks like Kevin Work is directly at odds with abortion vendors’ desire to cut costs. If the Supreme Court finally expresses some long-overdue skepticism at the idea that abortion businesses represent women’s interests, our legal system could finally escape, or at least reduce, the influence of abortion industry money.
Dr. Michael New of the Charlotte Lozier Institute puts it best:

Which decreases abortion rates more: contraception access or abortion restrictions?

Pro-choicers frequently claim that making abortion illegal won’t decrease the number of abortions; it will only decrease the number of safe, legal abortions. They suggest that there is no practical use to restricting abortion legally and that if pro-lifers really cared about decreasing abortion rates, they would focus on decreasing unplanned pregnancies (through better access to contraception, better sex education, etc.)

So pro-choicers claim.

But there’s a lot of research to show that abortion law affects abortion rates–and not just legal abortion rates, but total abortion rates. Studies often measure the changes in fertility in areas where abortion access recently changed. Secular Pro-Life has compiled a list of such studies if you’re interested.

I’ve now had a few conversations where I point out this reality, and the pro-choice person’s response is to claim that even if abortion restrictions have some nonzero effect on abortion rates, that effect is dwarfed by the decrease in abortions thanks to contraception access. It’s easy for me to believe that both more access to contraception and less access to abortion will decrease abortion rates, and personally I’m for taking both approaches. But the claim that the effect of contraception access trounces the effect of abortion access sounds like just a slightly watered down version of the false claim that abortion access doesn’t affect abortion rates at all. That is, it’s an ad hoc, ill-founded claim to justify our country’s incredibly liberal abortion laws, but the evidence (at least what I’ve seen so far) doesn’t bear it out.

For example, in late 2017 the Daily Mail published “Abortion rate plummets to an historic low, CDC figures reveal.” Specifically the article claims

While the drop mirrors the closure of abortion clinics nationwide, experts say the figure is likely down to more effective use of contraception and the falling pregnancy rate.

The article references this CDC report, which has found a net decrease in the abortion rate (number of abortions per 1,000 women age 15-44) of 22% (from 15.6 to 12.1). This is great news, but it’s not clear from the CDC report the extent to which different factors contributed to the decrease. The CDC authors explain

One factor that might have contributed to this decrease is the increase that occurred during the same period in the use of the most effective forms of reversible contraception, specifically intrauterine devices and hormonal implants, which are as effective as sterilization at preventing unintended pregnancy (102–105). Although use of intrauterine devices and implants has increased in recent years, use of these methods remains low in comparison with use of oral contraceptives and condoms, both of which are less effective at preventing pregnancy (102,104).

So contraception likely played a role, but the CDC can’t quantify it, and they still find that the most effective forms of contraception are not used much compared to the less effective forms. They certainly aren’t asserting that the entire 22% decrease is due solely to contraception access, and their report doesn’t attempt to compare the effects of contraception access to the effects of abortion access. 

There are studies that looked at both factors. For example, this Guttmacher report found that between access to the Pill and access to abortion, abortion was associated with a birth rate decrease twice that for the pill.

Among white minors, having had access to the pill was associated with a 9% drop in the overall birthrate and an 8% drop in the rate of nonmarital first births. In this same group, access to an abortion was correlated with a 17% decline in the nonmarital birthrate and a 16% decline in the rate of nonmarital first births.

Another study found that, for women under age 19, “liberalized abortion policy predicts a 34 percent decline in motherhood” whereas “the results do not provide evidence that pill policies had a substantial effect.” The author explains

The birth control pill’s effects on family formation are theoretically ambiguous: The pill was a technological innovation in contraception, but with a failure rate of about 9 percent in the first year of typical use (Trussell, 2004), it still provides an imperfect means of preventing pregnancy. Trends in sexual behavior suggest that any reductions in unintended pregnancies among teens due to safer, pill-protected sex were offset by large increases in sexual activity. Difference-in-difference estimates also provide little evidence to support the view that pill policies had a substantial influence on age at first birth and marriage. Results in Goldin and Katz (2002) and Bailey (2006, 2009) that suggest otherwise are not robust to reasonable perturbations of the authors’ research designs including addressing discrepancies in the legal codings, choosing alternative data sets, and/or adjusting sample selection procedures. Rather, the results robustly point to policies governing abortion, a second, less lauded but more certain means of preventing unwanted births, as the driving force behind delayed family formation in the 1970s. [Emphasiss added]

This study is not a perfect comparison to claims about more modern contraception. The idea is that the most effective forms of contraception (e.g. IUDs instead of the Pill) do a better job of decreasing unintended pregnancy rates because even if users increase their sexual activity as a result, the increase in risk-taking behavior does not offset the decrease in risk these more effective contraceptive methods provide.

Note also that research suggests when abortion is legalized the abortion rate increases more than the birth rate decreases. See Footnote 8 of this report, p8 of the PDF, which explains in part:

Note, however, that the decline in births is far less than the number of abortions, suggesting that the number of conceptions increased substantially –and example of insurance leading to moral hazard. The insurance that abortion provides against unwanted pregnancy induces more sexual conduct or diminished protections against pregnancy in a way that substantially increases the number of pregnancies. [Emphasis added]

People are less cautious about avoiding pregnancy when they know they can get abortions as a back up option. This idea is further substantiated by a study published in the June 2015 edition Perspectives on Sexual and Reproductive Health which concluded:

Women who lived in a state where abortion access was low were more likely than women living in a state with greater access to use highly effective contraceptives rather than no method (relative risk ratio, 1.4). Similarly, women in states characterized by high abortion hostility (i.e., states with four or more types of restrictive policies in place) were more likely to use highly effective methods than were women in states with less hostility (1.3).

This research also suggests that teasing out the effects of abortion access compared to contraception use may prove challenging, since the two appear to be inversely correlated.

So with that brief overview of just a few studies, so far these are the conclusions I’m drawing:

  1. Abortion restrictions decrease abortion rates (and likely also unintended pregnancy rates).
  2. Access to the most effective forms of contraception decrease abortion rates.
  3. Abortion restrictions probably decrease abortion rates more than access to less effective contraception (e.g. the Pill) does, and
  4. It’s unclear whether abortion restrictions or access to the most effective forms of contraception (e.g. IUDs) decrease abortion rates more.

I’m open to other suggestions or studies if you have them.

[This article is reposted with permission from Difficult Run.]

Which decreases abortion rates more: contraception access or abortion restrictions?

Pro-choicers frequently claim that making abortion illegal won’t decrease the number of abortions; it will only decrease the number of safe, legal abortions. They suggest that there is no practical use to restricting abortion legally and that if pro-lifers really cared about decreasing abortion rates, they would focus on decreasing unplanned pregnancies (through better access to contraception, better sex education, etc.)

So pro-choicers claim.

But there’s a lot of research to show that abortion law affects abortion rates–and not just legal abortion rates, but total abortion rates. Studies often measure the changes in fertility in areas where abortion access recently changed. Secular Pro-Life has compiled a list of such studies if you’re interested.

I’ve now had a few conversations where I point out this reality, and the pro-choice person’s response is to claim that even if abortion restrictions have some nonzero effect on abortion rates, that effect is dwarfed by the decrease in abortions thanks to contraception access. It’s easy for me to believe that both more access to contraception and less access to abortion will decrease abortion rates, and personally I’m for taking both approaches. But the claim that the effect of contraception access trounces the effect of abortion access sounds like just a slightly watered down version of the false claim that abortion access doesn’t affect abortion rates at all. That is, it’s an ad hoc, ill-founded claim to justify our country’s incredibly liberal abortion laws, but the evidence (at least what I’ve seen so far) doesn’t bear it out.

For example, in late 2017 the Daily Mail published “Abortion rate plummets to an historic low, CDC figures reveal.” Specifically the article claims

While the drop mirrors the closure of abortion clinics nationwide, experts say the figure is likely down to more effective use of contraception and the falling pregnancy rate.

The article references this CDC report, which has found a net decrease in the abortion rate (number of abortions per 1,000 women age 15-44) of 22% (from 15.6 to 12.1). This is great news, but it’s not clear from the CDC report the extent to which different factors contributed to the decrease. The CDC authors explain

One factor that might have contributed to this decrease is the increase that occurred during the same period in the use of the most effective forms of reversible contraception, specifically intrauterine devices and hormonal implants, which are as effective as sterilization at preventing unintended pregnancy (102–105). Although use of intrauterine devices and implants has increased in recent years, use of these methods remains low in comparison with use of oral contraceptives and condoms, both of which are less effective at preventing pregnancy (102,104).

So contraception likely played a role, but the CDC can’t quantify it, and they still find that the most effective forms of contraception are not used much compared to the less effective forms. They certainly aren’t asserting that the entire 22% decrease is due solely to contraception access, and their report doesn’t attempt to compare the effects of contraception access to the effects of abortion access. 

There are studies that looked at both factors. For example, this Guttmacher report found that between access to the Pill and access to abortion, abortion was associated with a birth rate decrease twice that for the pill.

Among white minors, having had access to the pill was associated with a 9% drop in the overall birthrate and an 8% drop in the rate of nonmarital first births. In this same group, access to an abortion was correlated with a 17% decline in the nonmarital birthrate and a 16% decline in the rate of nonmarital first births.

Another study found that, for women under age 19, “liberalized abortion policy predicts a 34 percent decline in motherhood” whereas “the results do not provide evidence that pill policies had a substantial effect.” The author explains

The birth control pill’s effects on family formation are theoretically ambiguous: The pill was a technological innovation in contraception, but with a failure rate of about 9 percent in the first year of typical use (Trussell, 2004), it still provides an imperfect means of preventing pregnancy. Trends in sexual behavior suggest that any reductions in unintended pregnancies among teens due to safer, pill-protected sex were offset by large increases in sexual activity. Difference-in-difference estimates also provide little evidence to support the view that pill policies had a substantial influence on age at first birth and marriage. Results in Goldin and Katz (2002) and Bailey (2006, 2009) that suggest otherwise are not robust to reasonable perturbations of the authors’ research designs including addressing discrepancies in the legal codings, choosing alternative data sets, and/or adjusting sample selection procedures. Rather, the results robustly point to policies governing abortion, a second, less lauded but more certain means of preventing unwanted births, as the driving force behind delayed family formation in the 1970s. [Emphasiss added]

This study is not a perfect comparison to claims about more modern contraception. The idea is that the most effective forms of contraception (e.g. IUDs instead of the Pill) do a better job of decreasing unintended pregnancy rates because even if users increase their sexual activity as a result, the increase in risk-taking behavior does not offset the decrease in risk these more effective contraceptive methods provide.

Note also that research suggests when abortion is legalized the abortion rate increases more than the birth rate decreases. See Footnote 8 of this report, p8 of the PDF, which explains in part:

Note, however, that the decline in births is far less than the number of abortions, suggesting that the number of conceptions increased substantially –and example of insurance leading to moral hazard. The insurance that abortion provides against unwanted pregnancy induces more sexual conduct or diminished protections against pregnancy in a way that substantially increases the number of pregnancies. [Emphasis added]

People are less cautious about avoiding pregnancy when they know they can get abortions as a back up option. This idea is further substantiated by a study published in the June 2015 edition Perspectives on Sexual and Reproductive Health which concluded:

Women who lived in a state where abortion access was low were more likely than women living in a state with greater access to use highly effective contraceptives rather than no method (relative risk ratio, 1.4). Similarly, women in states characterized by high abortion hostility (i.e., states with four or more types of restrictive policies in place) were more likely to use highly effective methods than were women in states with less hostility (1.3).

This research also suggests that teasing out the effects of abortion access compared to contraception use may prove challenging, since the two appear to be inversely correlated.

So with that brief overview of just a few studies, so far these are the conclusions I’m drawing:

  1. Abortion restrictions decrease abortion rates (and likely also unintended pregnancy rates).
  2. Access to the most effective forms of contraception decrease abortion rates.
  3. Abortion restrictions probably decrease abortion rates more than access to less effective contraception (e.g. the Pill) does, and
  4. It’s unclear whether abortion restrictions or access to the most effective forms of contraception (e.g. IUDs) decrease abortion rates more.

I’m open to other suggestions or studies if you have them.

[This article is reposted with permission from Difficult Run.]

Why penalties for illegal abortion should not focus on the woman

In the last week or so the internet
has blown up over Trump saying
there should be some form of punishment for the woman seeking an abortion if
abortion were illegal. On the SPL FB page we posted a few links suggesting that
both SPL specifically and most pro-lifers in general disagree with Trump’s
initial answer (which he later rescinded).

Our FB page saw a lot of division in
the comments over this topic…

…with certain themes emerging. Instead
of responding via countless comments in multiple threads, I thought I’d make a
blog post.


“What’s
the point of making something illegal if there’s no repercussion for it?”

I don’t think pro-lifers are very
divided on whether or not there should be repercussions. Most of us agree that
there should. We aren’t suggesting we make something illegal but have literally
zero penalties attached for breaking that law. The debate isn’t about whether there will be repercussions; it’s
about what those repercussions should look like and who they should focus on:
the doctor providing the abortion, the woman seeking the abortion, anyone else
involved?

There is a lot of precedent for
crafting laws that focus on the doctors providing illegal abortions, not the
women seeking them. Americans United for Life summarizes the situation well, explaining that the laws were set up this way both
because the woman was viewed as a second victim of abortion and because prosecuting
women seeking abortions made it more difficult to effectively enforce the law
against abortionists themselves.

“If
a woman would be charged with murder for taking a child’s life in other
instances, why wouldn’t she be here?”

Short answer:
The culture war over abortion, as well
as some of the unique factors involved in pregnancy and child-bearing, make
this more complicated.

Long answer:
The thought experiment “What should
the punishment be if abortion were illegal?” is woefully vague. For starters there’s
a difference between talking about if (a)–bam!—abortion were suddenly illegal
tomorrow versus (b) we’re at some point in the unspecified future, and abortion
has become illegal alongside a lot of cultural changes.  If we’re talking about the “Bam! Illegal!”
scenario, I do think it would be unjust to punish women who seek abortions.

A lot of pro-lifers claim that
abortion is no different than infanticide, but that’s not true. Yes, they’re
comparable in that they both involve killing particularly helpless humans. But
they’re incomparable in that we can all see the infant. We can hold her, we can hear her coo and cry, we can see
with our naked eyes her face, her little belly breathing. She is right there,
irrefutable undeniable existence, and I think a person would have to be a
certain level of horribly, evilly messed up to be able to kill her.

The same doesn’t apply to abortion.
Most abortions are done early enough that the woman doesn’t have any direct
interaction with the embryo, save for unpleasant pregnancy symptoms. For these
abortions the tiny human is so tiny, the woman can’t feel any movements. Without
the aid of technology she can’t see or hear anything. One major difference
between (early term) abortion and infanticide is whether we can even sense the
entity we’re harming. This has huge psychological implications.

It also leaves people a lot more
vulnerable to misinformation or outright lies. Good luck using some ad hoc
philosophy to convince someone holding a newborn that the baby isn’t really a human being. 



I like Supernatural, what can I say?

But we’ve seen
this play out in the context of abortion many times over.


And that brings me to the next huge
difference between abortion and infanticide: the social messaging we’re raised
with. Society pretty universally reacts with everything from revulsion to
hatred at anyone who harms an infant. Even those without kids generally
recognize infants as vulnerable little people in need of our protection and
love.

Contrast that with the huge,
decades-long, seemingly intractable culture war over the nature of the fetus,
with a large chunk of our country, including some of our most powerful voices,
stridently insisting there’s nothing to even talk about, no real conflict, no other entity involved besides the
pregnant woman.

We have videos of clinic “counselors” lying to women about the realities of prenatal development. We have testimony from
post-abortive women who realized with horror what the abortion really meant
when they went on to carry wanted pregnancies. We have ridiculously one-sided media coverage (Gosnell, anyone?) We have the never-ending rhetoric about “clumps of cells,”
“products of conception,” and even “parasites”—so constant it almost feels
mundane for me to write about it yet again,
but it’s always there.


The level of willful ignorance, of
outright deception, pushed on the public on this issue just has no equivalent
on the issue of infanticide, none at all. And if abortion were suddenly illegal
tomorrow, that context would be an important factor and would—and
should—influence how we would craft such a law.

On the other hand, if the thought
experiment is about illegal abortion in a culture that broadly and consistently
acknowledges the fetus as a valuable human being—part of our species, part of
our society—then I think it gives more weight to the arguments about including penalties
for those seeking abortion.

“I
don’t see this as any different than someone hiring a hitman to kill someone
for them. Sure, the hitman should be punished, but the person who hired him should
be punished too. Seems pretty simple. ”

Mmmm, not that simple.

First, when people hire hitmen, they
unquestionably know that they are trying to have other human beings killed. And
as I explained above, it’s often not that straightforward with abortion.

But even if we lived in a society that
valued fetal life and we had all grown up learning and knowing the fetus is a
valuable human being, I think the legal response to abortion would still be
complicated. It’s complicated by the way child-bearing (and the circumstances
surrounding child-bearing) affect a woman’s state of mind. And our legal system
(rightly) recognizes state of mind as an important factor when determining
guilt and appropriate punishments.

Mens rea, Latin for “guilty mind,” is
a necessary element for many criminal prosecutions.


The idea is that it’s not only our
actions that matter, but also our intentions. This means that even if you
definitely took an action that is illegal, if you didn’t intend a crime it’s
possible you’d still be found not guilty.

And even within a guilty verdict there
are different levels of mens rea and so
different levels of responsibility. Our legal system can find that you
committed an act with (1) negligence (you weren’t aware your actions could lead
to a certain outcome, but you should have been), (2) recklessness (you knew
there was substantial risk your actions might lead to the outcome), (3) knowledge
(you knew there was a near certainty your actions would lead to the outcome),
or (4) purpose (you knew there was a near certainty your actions would lead to
the outcome and that was your goal).

In addition to mens rea, our legal system also considers necessity and duress. Basically, necessity means you committed the crime under the
belief that it would prevent a greater evil or harm from occurring, and duress means
you were forced to commit the crime by someone else.

I bring up mens rea, necessity, and duress because it’s elements like these
that (often) make abortion different than hiring a hitman. Suppose you hire a
hitman to kill your spouse because you don’t want to deal with divorce or
something. You are acting with purpose, and not under necessity or duress. I
believe most cases of abortion are not comparable to this.


Even planned pregnancy can be very
stressful; unplanned pregnancy can wreak havoc on finances, relationships, and
employment, not to mention the impacts pregnancy can have on a woman physically
and psychologically. Even if you haven’t been there yourself, it isn’t hard to
imagine how the news of a pregnancy might sound to someone who is already
struggling to support other children, or hasn’t finished high school, or is in
an abusive relationship. There are lots of scenarios in which pregnancy can
make women feel panicked. That does not justify taking a life. But, in our
justice system, it can affect culpability.

And this doesn’t just apply to
abortion. Even when a parent commits infanticide—where it’s blatantly obvious
to everyone that a little human has been killed—external pressures can mitigate
the repercussions. A high proportion of infanticide cases in the U.S. result in NGRI verdicts (Not
Guilty by Reason of Insanity), and it’s unclear how many of these verdicts are
based on the actual legal definition of insanity rather than juror conceptions
of the term. I won’t repeat the anecdotes from the link here (they are
heartbreaking and awful), but it seems judges and jurors are sympathetic to the
intense stresses that are often at play when new parents kill their babies.

And you know what? I hate even talking
about it. I hate even thinking about
it, it’s so terrible. But that’s kind of my point. Pretty much everyone agrees
infanticide is horrifying, but our legal system is still set up to account for
the context, rather than automatically treat it as straightforward murder. Why shouldn’t that approach also apply in the case of an illegal abortion?

If we lived in a society that
eliminated some of the causes of panic associated with pregnancy, it might be
different. If women with unplanned pregnancies knew they wouldn’t be let go
from a job, pushed out of a church community, ostracized from their families,
if they knew they could obtain prenatal and postpartum care, streamlined
adoption services, paid maternity leave, flexible class schedules, effective protection
from domestic violence, or any of the other countless solutions that would make
pregnancy less frightening, the arguments about state of mind would probably be
less impactful. But we aren’t there, at least not yet.

For all the reasons stated above, and
for others I’ve probably failed to enumerate, it makes sense to me that a
person could simultaneously think abortion is immoral and should be illegal and
also think any laws criminalizing abortion should not focus on the woman
seeking one.  Much of the pro-life
movement feels this way (see examples from New Wave Feminists, Abby Johnson,  Priests for Life, March for Life,
National Right To Life, and Students For Life of America).

But we had such a division on our FB
page because clearly not all of the pro-life movement feels this way, and I
want to say a few points about that too.

1) It’s not no pro-lifers. It’s a mistake to suggest that no pro-lifers think there should be some
form of punishment for the woman if abortion were illegal. If FB comments are
any indication, plenty of pro-lifers think that would be intuitive. I haven’t found
much polling data on this particular question, but what there is suggests that a portion of the pro-life movement thinks that makes
sense, although it appears to be a minority position.

2) It’s not no real pro-lifers. It’s even more of a mistake, I
think, to then switch to “no real
pro-lifer” thinks women should be punished. Let’s avoid the No True Scotsman
line. Despite what our opposition seems to think, our movement is not that
monolithic. Generally we think abortion is immoral and should be illegal, but
there’s a variety of opinions about almost everything beyond that: Does life
begin at conception or implantation or somewhere else? Should there be
exceptions for rape? For severe fetal deformities? For children who get
pregnant? Should there be a national ban or is it a state’s rights issue? If we’re
against abortion does that somehow necessitate being against the death penalty?
Euthanasia? Do we advocate for or against contraception? Comprehensive sex ed?

I could go on. And for every one of
those questions you’ll find people with opinions about what “real” pro-lifers
ought to answer. Don’t play that game. If we require agreement on all the many
facets of the abortion debate before working together, we may as well just pack
up and go home, guys.

3) They mean different things by “punishment.” Those who say there should be a “punishment”
have a wide range of views about what “punishment” would mean (which is why
here I put “punishment” in quotes). Yes, some people think she should be
charged with murder. But I’ve seen others suggest community service or
mandatory counseling. I don’t think these pro-lifers all fall into the same
category.

4) They have different reasons for their view. Of course there are
those who think there’s no meaningful distinction between abortion and
infanticide, between paying an abortionist and hiring a hitman. Then there are those
that see the differences, but worry no repercussion at all signals the fetus is
unimportant. And there are those who see such laws akin to laws against
suicide: created so authorities have the right to intervene in order to help (I
think that’s where the mandatory counseling idea comes in). And there are those
that think there should be at least some cursory, symbolic repercussion so the
law isn’t toothless.

5) They still have different ideas about who should be punished. The “punishment” pro-lifers also
don’t all agree on how broadly a punishment would apply. There are some who think anyone who gets an abortion under any circumstances should be subject to the penalty of law. But there are many who recognize
issues like mens rea; they just don’t
think these issues mean the legal system should drop the punishment idea all
together. Instead they think it has to be decided on a case by case basis,
because however many women choose abortion out of desperation, there are some who
are in a very different state of mind, who view the whole thing quite casually. In fact that’s one of the reasons sometimes cited in the recurring push to take all stigma out of abortion.

So even though, from what we can tell,
most pro-lifers don’t think there should be penalties for women, we should keep
in mind that there are those who do and that there is a range of opinions on
that side of the debate as well.

Either way, the women who run Secular
Pro-Life recognize that the humanity of the preborn child is not at all clear to many
people, and that most women who seek abortion do so under intense pressure. We believe
it’s both the most moral position and the best legal approach to make sure penalties
for illegal abortions don’t focus on the women seeking them.


Why penalties for illegal abortion should not focus on the woman

In the last week or so the internet
has blown up over Trump saying
there should be some form of punishment for the woman seeking an abortion if
abortion were illegal. On the SPL FB page we posted a few links suggesting that
both SPL specifically and most pro-lifers in general disagree with Trump’s
initial answer (which he later rescinded).

Our FB page saw a lot of division in
the comments over this topic…

…with certain themes emerging. Instead
of responding via countless comments in multiple threads, I thought I’d make a
blog post.


“What’s
the point of making something illegal if there’s no repercussion for it?”

I don’t think pro-lifers are very
divided on whether or not there should be repercussions. Most of us agree that
there should. We aren’t suggesting we make something illegal but have literally
zero penalties attached for breaking that law. The debate isn’t about whether there will be repercussions; it’s
about what those repercussions should look like and who they should focus on:
the doctor providing the abortion, the woman seeking the abortion, anyone else
involved?

There is a lot of precedent for
crafting laws that focus on the doctors providing illegal abortions, not the
women seeking them. Americans United for Life summarizes the situation well, explaining that the laws were set up this way both
because the woman was viewed as a second victim of abortion and because prosecuting
women seeking abortions made it more difficult to effectively enforce the law
against abortionists themselves.

“If
a woman would be charged with murder for taking a child’s life in other
instances, why wouldn’t she be here?”

Short answer:
The culture war over abortion, as well
as some of the unique factors involved in pregnancy and child-bearing, make
this more complicated.

Long answer:
The thought experiment “What should
the punishment be if abortion were illegal?” is woefully vague. For starters there’s
a difference between talking about if (a)–bam!—abortion were suddenly illegal
tomorrow versus (b) we’re at some point in the unspecified future, and abortion
has become illegal alongside a lot of cultural changes.  If we’re talking about the “Bam! Illegal!”
scenario, I do think it would be unjust to punish women who seek abortions.

A lot of pro-lifers claim that
abortion is no different than infanticide, but that’s not true. Yes, they’re
comparable in that they both involve killing particularly helpless humans. But
they’re incomparable in that we can all see the infant. We can hold her, we can hear her coo and cry, we can see
with our naked eyes her face, her little belly breathing. She is right there,
irrefutable undeniable existence, and I think a person would have to be a
certain level of horribly, evilly messed up to be able to kill her.

The same doesn’t apply to abortion.
Most abortions are done early enough that the woman doesn’t have any direct
interaction with the embryo, save for unpleasant pregnancy symptoms. For these
abortions the tiny human is so tiny, the woman can’t feel any movements. Without
the aid of technology she can’t see or hear anything. One major difference
between (early term) abortion and infanticide is whether we can even sense the
entity we’re harming. This has huge psychological implications.

It also leaves people a lot more
vulnerable to misinformation or outright lies. Good luck using some ad hoc
philosophy to convince someone holding a newborn that the baby isn’t really a human being. 



I like Supernatural, what can I say?

But we’ve seen
this play out in the context of abortion many times over.


And that brings me to the next huge
difference between abortion and infanticide: the social messaging we’re raised
with. Society pretty universally reacts with everything from revulsion to
hatred at anyone who harms an infant. Even those without kids generally
recognize infants as vulnerable little people in need of our protection and
love.

Contrast that with the huge,
decades-long, seemingly intractable culture war over the nature of the fetus,
with a large chunk of our country, including some of our most powerful voices,
stridently insisting there’s nothing to even talk about, no real conflict, no other entity involved besides the
pregnant woman.

We have videos of clinic “counselors” lying to women about the realities of prenatal development. We have testimony from
post-abortive women who realized with horror what the abortion really meant
when they went on to carry wanted pregnancies. We have ridiculously one-sided media coverage (Gosnell, anyone?) We have the never-ending rhetoric about “clumps of cells,”
“products of conception,” and even “parasites”—so constant it almost feels
mundane for me to write about it yet again,
but it’s always there.


The level of willful ignorance, of
outright deception, pushed on the public on this issue just has no equivalent
on the issue of infanticide, none at all. And if abortion were suddenly illegal
tomorrow, that context would be an important factor and would—and
should—influence how we would craft such a law.

On the other hand, if the thought
experiment is about illegal abortion in a culture that broadly and consistently
acknowledges the fetus as a valuable human being—part of our species, part of
our society—then I think it gives more weight to the arguments about including penalties
for those seeking abortion.

“I
don’t see this as any different than someone hiring a hitman to kill someone
for them. Sure, the hitman should be punished, but the person who hired him should
be punished too. Seems pretty simple. ”

Mmmm, not that simple.

First, when people hire hitmen, they
unquestionably know that they are trying to have other human beings killed. And
as I explained above, it’s often not that straightforward with abortion.

But even if we lived in a society that
valued fetal life and we had all grown up learning and knowing the fetus is a
valuable human being, I think the legal response to abortion would still be
complicated. It’s complicated by the way child-bearing (and the circumstances
surrounding child-bearing) affect a woman’s state of mind. And our legal system
(rightly) recognizes state of mind as an important factor when determining
guilt and appropriate punishments.

Mens rea, Latin for “guilty mind,” is
a necessary element for many criminal prosecutions.


The idea is that it’s not only our
actions that matter, but also our intentions. This means that even if you
definitely took an action that is illegal, if you didn’t intend a crime it’s
possible you’d still be found not guilty.

And even within a guilty verdict there
are different levels of mens rea and so
different levels of responsibility. Our legal system can find that you
committed an act with (1) negligence (you weren’t aware your actions could lead
to a certain outcome, but you should have been), (2) recklessness (you knew
there was substantial risk your actions might lead to the outcome), (3) knowledge
(you knew there was a near certainty your actions would lead to the outcome),
or (4) purpose (you knew there was a near certainty your actions would lead to
the outcome and that was your goal).

In addition to mens rea, our legal system also considers necessity and duress. Basically, necessity means you committed the crime under the
belief that it would prevent a greater evil or harm from occurring, and duress means
you were forced to commit the crime by someone else.

I bring up mens rea, necessity, and duress because it’s elements like these
that (often) make abortion different than hiring a hitman. Suppose you hire a
hitman to kill your spouse because you don’t want to deal with divorce or
something. You are acting with purpose, and not under necessity or duress. I
believe most cases of abortion are not comparable to this.


Even planned pregnancy can be very
stressful; unplanned pregnancy can wreak havoc on finances, relationships, and
employment, not to mention the impacts pregnancy can have on a woman physically
and psychologically. Even if you haven’t been there yourself, it isn’t hard to
imagine how the news of a pregnancy might sound to someone who is already
struggling to support other children, or hasn’t finished high school, or is in
an abusive relationship. There are lots of scenarios in which pregnancy can
make women feel panicked. That does not justify taking a life. But, in our
justice system, it can affect culpability.

And this doesn’t just apply to
abortion. Even when a parent commits infanticide—where it’s blatantly obvious
to everyone that a little human has been killed—external pressures can mitigate
the repercussions. A high proportion of infanticide cases in the U.S. result in NGRI verdicts (Not
Guilty by Reason of Insanity), and it’s unclear how many of these verdicts are
based on the actual legal definition of insanity rather than juror conceptions
of the term. I won’t repeat the anecdotes from the link here (they are
heartbreaking and awful), but it seems judges and jurors are sympathetic to the
intense stresses that are often at play when new parents kill their babies.

And you know what? I hate even talking
about it. I hate even thinking about
it, it’s so terrible. But that’s kind of my point. Pretty much everyone agrees
infanticide is horrifying, but our legal system is still set up to account for
the context, rather than automatically treat it as straightforward murder. Why shouldn’t that approach also apply in the case of an illegal abortion?

If we lived in a society that
eliminated some of the causes of panic associated with pregnancy, it might be
different. If women with unplanned pregnancies knew they wouldn’t be let go
from a job, pushed out of a church community, ostracized from their families,
if they knew they could obtain prenatal and postpartum care, streamlined
adoption services, paid maternity leave, flexible class schedules, effective protection
from domestic violence, or any of the other countless solutions that would make
pregnancy less frightening, the arguments about state of mind would probably be
less impactful. But we aren’t there, at least not yet.

For all the reasons stated above, and
for others I’ve probably failed to enumerate, it makes sense to me that a
person could simultaneously think abortion is immoral and should be illegal and
also think any laws criminalizing abortion should not focus on the woman
seeking one.  Much of the pro-life
movement feels this way (see examples from New Wave Feminists, Abby Johnson,  Priests for Life, March for Life,
National Right To Life, and Students For Life of America).

But we had such a division on our FB
page because clearly not all of the pro-life movement feels this way, and I
want to say a few points about that too.

1) It’s not no pro-lifers. It’s a mistake to suggest that no pro-lifers think there should be some
form of punishment for the woman if abortion were illegal. If FB comments are
any indication, plenty of pro-lifers think that would be intuitive. I haven’t found
much polling data on this particular question, but what there is suggests that a portion of the pro-life movement thinks that makes
sense, although it appears to be a minority position.

2) It’s not no real pro-lifers. It’s even more of a mistake, I
think, to then switch to “no real
pro-lifer” thinks women should be punished. Let’s avoid the No True Scotsman
line. Despite what our opposition seems to think, our movement is not that
monolithic. Generally we think abortion is immoral and should be illegal, but
there’s a variety of opinions about almost everything beyond that: Does life
begin at conception or implantation or somewhere else? Should there be
exceptions for rape? For severe fetal deformities? For children who get
pregnant? Should there be a national ban or is it a state’s rights issue? If we’re
against abortion does that somehow necessitate being against the death penalty?
Euthanasia? Do we advocate for or against contraception? Comprehensive sex ed?

I could go on. And for every one of
those questions you’ll find people with opinions about what “real” pro-lifers
ought to answer. Don’t play that game. If we require agreement on all the many
facets of the abortion debate before working together, we may as well just pack
up and go home, guys.

3) They mean different things by “punishment.” Those who say there should be a “punishment”
have a wide range of views about what “punishment” would mean (which is why
here I put “punishment” in quotes). Yes, some people think she should be
charged with murder. But I’ve seen others suggest community service or
mandatory counseling. I don’t think these pro-lifers all fall into the same
category.

4) They have different reasons for their view. Of course there are
those who think there’s no meaningful distinction between abortion and
infanticide, between paying an abortionist and hiring a hitman. Then there are those
that see the differences, but worry no repercussion at all signals the fetus is
unimportant. And there are those who see such laws akin to laws against
suicide: created so authorities have the right to intervene in order to help (I
think that’s where the mandatory counseling idea comes in). And there are those
that think there should be at least some cursory, symbolic repercussion so the
law isn’t toothless.

5) They still have different ideas about who should be punished. The “punishment” pro-lifers also
don’t all agree on how broadly a punishment would apply. There are some who think anyone who gets an abortion under any circumstances should be subject to the penalty of law. But there are many who recognize
issues like mens rea; they just don’t
think these issues mean the legal system should drop the punishment idea all
together. Instead they think it has to be decided on a case by case basis,
because however many women choose abortion out of desperation, there are some who
are in a very different state of mind, who view the whole thing quite casually. In fact that’s one of the reasons sometimes cited in the recurring push to take all stigma out of abortion.

So even though, from what we can tell,
most pro-lifers don’t think there should be penalties for women, we should keep
in mind that there are those who do and that there is a range of opinions on
that side of the debate as well.

Either way, the women who run Secular
Pro-Life recognize that the humanity of the preborn child is not at all clear to many
people, and that most women who seek abortion do so under intense pressure. We believe
it’s both the most moral position and the best legal approach to make sure penalties
for illegal abortions don’t focus on the women seeking them.


Gosnell and Abortion, Part 1 of 3

[Today’s post is by guest blogger Nathaniel, re-posted with permission from his blog, Difficult Run.]

Less than a week after Kirsten Powers’ USA Today piece, the concerted pro-life effort to get the Gosnell trial the media attention it tragically deserves has succeeded. Sort of.

There are a lot of articles being written about Gosnell, but the vast
majority are focusing on the coverage of the trial, not the trial. To
be fair, some of these pieces delve into the grim details. Conor
Friedersdorf of The Atlantic pointed out
that in addition to dead babies, the story included: “The Exploited
Women. The racism. The numerous governmental failures.” And yet
Washington Post reporter Sarah Kliff still thinks this is a “local
crime” story, at least as far as her Twitter feed is concerned.

http://difficultrun.nathanielgivens.com/wp-content/uploads/2013/04/2013-04-16-Sarah-Kliff-Tweet.png 

Kevin Drum of Mother Jones concurs, dismissing the pro-life outcry as “working the refs” and “a hustle”. The Daily Caller even covered an attempt to delete Kermit Gosnell’s Wikipedia page because it was just a “local multiple-murder story in Pennsylvania.” (The attempt failed.)
According to Drum, the lack of coverage doesn’t even need an
explanation. Why wasn’t it covered? “Beats me. I’ve often wondered just
what it is that causes some local crime stories to become media
sensations and others to molder in obscurity.” Just one of those things,
right?

Friedersdorf, also pro-choice but possessed of some journalistic integrity, tried a little harder and came up with 14 theories. The most interesting comes near the end of the list:

13. Horrific as It Is, This Case Doesn’t Speak to Anything Larger About Abortion.

Is Friedersdorf claiming that it was horrific enough to be covered,
but that was cancelled out because it says nothing about abortion? Try
that logic out on other horrific stories: “Yeah, we were going to cover a
school shooting, but then we realized it wasn’t related to abortion so
we packed up and went home.” It sticks out on the list because it
doesn’t even answer the question. Or make any kind of sense at all.

The reality is that the Gosnell story isn’t ignored because it says nothing about abortion, but because it says a lot
about abortion. Friedersdorf had previously dismissed the idea that
“Pro-Choice Journalists Are Willfully Ignoring the Story to Avoid Giving
an Advantage to Pro-Lifers” (theory #9 on his list), but that’s not how
cognitive biases work. Their entire function is to pre-empt the pain of
cognitive dissonance by filtering out the uncomfortable evidence before you’re aware of it.
They lead people to do and say irrational things like, I don’t know,
propound entirely senseless theories just because they are reassuring.
Pro-choice journalists (a close synonym for just “journalists”) aren’t willfully
ignoring the story, but they were definitely ignoring it, and now that
they can’t do that they are mostly changing the subject by going meta.

The Gosnell case isn’t threatening because it’s intrinsically
pro-life,but it’s definitely kryptonite to the pro-choice status quo.
Starting today and continuing to posts on Thursday and Friday, I’ll do a
run-down on how the Gosnell story is a clear and present danger to the
myths and doublethink necessary to preserve America’s abortion status
quo.

1. America’s Abortion Laws Are Very Extreme

Most polls reflect that there is wide, popular support for the Supreme Court case that legalized abortion in the United States: Roe v. Wade.
Most polls also reflect, however, that Americans are fairly moderate on
abortion and believe it should be available only in limited
circumstances and not, for example, as just another method of birth
control. (Wikipeda summarizes some of the relevant polls.) The problem is, that’s exactly what Roe, and a lesser-known ruling handed down the same day, did.

Most people who are familiar with the abortion debate know that Roe set up a trimester system. Here it is:

(a) For the stage prior to approximately the end of the
first trimester, the abortion decision and its effectuation must be left
to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first
trimester, the State, in promoting its interest in the health of the
mother, may, if it chooses, regulate the abortion procedure in ways that
are reasonably related to maternal health.
(c) For the stage subsequent to viability the State, in promoting its
interest in the potentiality of human life, may, if it chooses,
regulate, and even proscribe, abortion except where necessary, in
appropriate medical judgment, for the preservation of the life or health
of the mother.

 This sounds perfectly reasonable, but note that an exception for
“health” is always required. What does “health” mean? The answer lies
with that lesser-known ruling: Doe v. Bolton. In that decision, the majority opinion wrote:

Whether, in the words of the Georgia statute, “an abortion is necessary”
is a professional judgment that the Georgia physician will be called
upon to make routinely. We agree with the District Court, 319 F. Supp.,
at 1058, that the medical judgment may be exercised in the light of all
factors – physical, emotional, psychological, familial, and the woman’s
age – relevant to the well-being of the patient. All these factors may
relate to health.

This opinion makes two things clear. The first is that the definition
of “health” is incredibly broad. The second is that the person who gets
to make the decision about “health” is the woman’s doctor which is to
say, the abortionist. Practically speaking, the combination of Roe and
Doe come very close to making abortion available on-demand throughout
the 9 months of pregnancy. How close? Well the first person to be
charged with an illegal abortion in the United States (since Roe)
was Dr. Jose Higuera, who was charged in 2001 in Michigan.
As far as I know, Gosnell will be the second. Both of these cases are
very, very exceptional, however. In Higuera’s case, he was charged
after performing an abortion on a 28-week fetus for a woman who cited
only “personal reasons”. He botched the abortion and as a result his
patient “suffered a perforated uterus, small bowel obstruction,
peri-uterine abscess, and needed a hysterectomy, salpingectomy, and
small bowel resection.” Notice that if he hadn’t seriously injured his
patient, however, she wouldn’t have been likely to testify against him.
And without her testimony that the abortion was not for her “health”
there would be no way to charge him. That would be like saying that
speeding is illegal, but also saying that you can only convict a driver
if one of the passengers is willing to testify that they were speeding.

Interestingly enough, Pennsylvania’s abortion law actually doesn’t include the health exception, which arguably makes it unconstitutional. When Planned Parenthood sued to stop the 1989 law from going into effect,
however, they didn’t raise that issue and so the Supreme Court didn’t
rule on it. In the absence of a ruling, the law, which bans abortions
after the second trimester unless “pregnancy would result in
irreversible impairment of a major bodily function”, remains in effect
but also subject to possibly being overturned in a future legal battle.
But even in the interim, what kind of effect is it? By all accounts,
Gosnell violated that law with impunity–performing literally hundreds of
illegal abortions over more than a decade–while every responsible
oversight agency intentionally turned a blind eye. It was only after he
committed numerous murders (both children and pregnant women) that he
was finally arrested, and charging him with the illegal abortions seems
like little more than an afterthought.

The reality is that late-term abortions are rare in the US, but not
because of the law. (More on why they are rare tomorrow.) The health
exception loophole is too broad to be of any use except in the most
egregious of circumstances. Even when there are stricter laws on the
books, however, they are almost never prosecuted, as Gosnell’s case
illustrates clearly. And that’s one major reason why pro-choice
reporters don’t want to touch the case. Late-term abortions are supposed
to be rare hard-cases. For Gosnell they were routine. He carried out
hundreds or even thousands of late term “illegal” abortions, and faced
absolutely no consequences. Just as Higuera wouldn’t have, if he hadn’t
grievously injured and lied to his patient. Late term abortions may
represent only a small fraction of all abortions (about 1.5%) but that
still means we’re talking more than ten thousand every year. That’s not supposed to happen.

But it does. And not just at Gosnell’s clinic. Stories of horrific late-term abortion / murders abound. Here’s the HuffPo admirably covering murder charges
against Maryland doctors accused of killing viable fetuses as late as
26 weeks. Note that, once again, charges were only filed after the
abortionists botched an abortion and seriously wounded a patient. The
case was always a long shot, relying on applying a law that was
originally designed to protect pregnant women from violent attackers and
that had an exemption for abortions, so it’s no surprise prosecutors dropped the charges last month.

Far from being unique, Gosnell’s case highlights that the problem of
murdering babies who survive the initial stages of a late-term abortion
could be widespread. LifeNews has additional stories.

And that’s the iceberg underneath the Gosnell case: that here in this
country the laws about abortion are not moderate. They are not
reasonable. They are not, most Americans would agree if they knew the
reality, acceptable. Pro-choice journalists absolutely do not want to
start down that road, not because it’s a political strategy, but because
they don’t want to see the reality for themselves, either. It’s just
too hard to live with.

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) is an Act intended to ensure “reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.”

The Huffington Post describes the types of women that could be helped by this legislation:

When Heather Wiseman began to suffer from bladder infections as a result of her pregnancy, the Walmart sales associate started carrying a water bottle during the day to stay hydrated. But the Walmart that employed Wiseman technically allowed only cashiers to have water bottles, and a note from Wiseman’s doctor made no difference. Caught with a water bottle again, the pregnant Wiseman was fired from her job in 2007 for insubordination based on her failure to follow the water bottle rule.
Another woman, Victoria Seredny, was told not to move heavy objects — something she did a few minutes a day in her job as a nursing home activities director — by her doctor after a near-miscarriage. When she asked for help, she said her boss refused to allow her colleagues to assist her, even those who volunteered. Serendy was fired soon after for failure to perform her duties.

The National Women’s Law Center describes these and a few other cases of pregnant women struggling to continue working while pregnant.

The Huffington Post explains that the Pregnancy Discrimination Act of 1978 makes it illegal to fire a woman just for being pregnant.  That doesn’t mean, however, that employers must accommodate a woman’s pregnancy-related needs.  The PWFA looks to correct that.

Politicians that oppose the PWFA argue that it would place unnecessary burdens on businesses. For example, businesses would have to find ways to accommodate pregnant employees whose jobs include a lot of physical activity, such as repetitive motions or lifting heavy objects.

It’s worth noting, though, that the PWFA does not apply if “the accommodation would impose an undue hardship on the operation of the business.” (In this context, “undue hardship” is based on the definition used in the Americans with Disabilities Act.)

It’s also worth noting that several states (Connecticut, Hawaii, Louisiana, Alaska, Texas, Illinois, and California) already have legislation that calls for accommodating pregnant workers. According to Time magazine, California passed legislation in 2000 that guarantees pregnant women the right to job-protected leave and to be transferred to another position if medically necessary.  Since then, California’s pregnancy discrimination cases have dropped (currently averaging at just two cases per year). For reference, federal pregnancy discrimination cases have increased by 54% in the same time period.

I guess it comes down to a question of priorities, doesn’t it? Is it more important to empower businesses to grow and profit? Or is it more important to empower pregnant women to continue earning a living while pregnant? Are there ways to empower each without hindering the other? What do you think?

Gonzales v. Carhart: What can you see?

Gonzales v. Carhart is a 2007 Supreme Court case in which the Court upheld the Partial-Birth Abortion Ban Act of 2003.

Both the pro-life and pro-choice communities reacted strongly to the case, seeing it as a shift in the Court’s perspective on abortion.  As the New York Times explained, the decision was “the first in which the Court has upheld a ban on a specific method of abortion.”  Planned Parenthood describes the case as follows:

April 18, 2007: The U.S. Supreme Court upholds the federal abortion ban, which criminalizes abortions in the second trimester of pregnancy that doctors say are safe and the best to protect women’s health.

While it may be true that Gonzales represented a shift in philosophy, the abortion method it banned was so specific as to make the Court decision almost meaningless on a practical level.

First, since the doctor must “vaginally delive[r] a living fetus,” the Act does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery,e.g., hysterotomy or hysterectomy. And it applies both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism within the womb, whether or not it is viable outside the womb. Second, because the Act requires the living fetus to be delivered to a specific anatomical landmark depending on the fetus’ presentation, an abortion not involving such partial delivery is permitted. Third, because the doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered fetus,” the “overt act” must be separate from delivery. It must also occur after delivery to an anatomical landmark, since killing “the partially delivered” fetus, when read in context, refers to a fetus that has been so delivered. Fourth, given the Act’s scienter requirements, delivery of a living fetus past an anatomical landmark by accident or inadvertence is not a crime because it is not “deliberat[e] and intentiona[l].” Nor is such a delivery prohibited if the fetus [has not] been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].”

Okay, let’s review. Gonzales does not ban all intact dilation and extraction (D&E) procedures.  The case bans procedures in which:

  1. A living fetus is vaginally delivered
  2. To a specific anatomical landmark (“either the fetal head or the fetal trunk past the navel is outside the body of the mother”) and is then
  3. Killed by an “overt act” (i.e. inserting scissors into the fetus’s skull) and
  4. The vaginal delivery was “deliberate and intentional.”

In other words, it is still legal to perform a D&E as long as the fetus is not purposefully delivered to a certain point.  It is still legal to perform a D&E on a fetus purposefully partially delivered but with the navel still inside the mother’s body.  It is still legal to perform a D&E on a fetus wholly but accidentally delivered.  Indeed, the Court specifically addresses this possibility:

[Respondents] contend–relying on the testimony of numerous abortion doctors–that D&E may result in the delivery of a living fetus beyond the Act’s anatomical landmarks in a significant fraction of cases. This is so, respondents say, because doctors cannot predict the amount the cervix will dilate before the abortion procedure. It might dilate to a degree that the fetus will be removed largely intact. To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus. Respondents thus posit that any D&E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner. 

This reasoning, however, does not take account of the Act’s intent requirements, which preclude liability from attaching to an accidental intact D&E.

This case bans an abortion procedure based on how far the fetus’s body is removed from the woman’s, and the doctor’s intent on how far the fetus would be removed.  The ban is not based on fetal development, and I argue it’s not based on humanity or dignity for the fetus.  After all, the doctor may legally tear the fetus apart so long as the fetus is mostly in the womb.  The Court tries to clarify the incoherent rationale of the case:

The Act’s stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community’s ethics and reputation. The government undoubtedly “has an interest in protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U. S. 702, 731. Moreover, Casey reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman. See, e.g., 505 U. S., at 873. The Act’s ban on abortions involving partial delivery of a living fetus furthers the Government’s objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned.

Do you follow all of that?  Innocent human life is protected from the brutal and inhumane procedure of being partially birthed and then killed.  The act does nothing about the presumably equally brutal and inhumane procedure of killing in the womb and then extracting.  Apparently brutality and inhumanity are increased depending on whether the fetus’s navel is outside the mother’s body.  Apparently it’s much more disrespectful to the “life within the woman” to physically remove that life before killing it than it is to kill it and then remove it.  Partially removing a fetus and then killing it is “similar to the killing of a newborn infant” but, apparently, killing the same fetus first and then removing it is dissimilar enough to be accepted.  The Court continues:

The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public’s perception of the doctor’s appropriate role during delivery, and perverts the birth process. 

Ah.  Here is the difference.  It’s not about brutality, humanity, or dignity.  It’s about how one version of brutality affects the public’s perception more than another version.  It’s alright to rip a fetus apart, as long as it’s not so visible.

It’s amazing to me how much what people think is moral or should be legal is based on what they can see.

Bodily Integrity Revisited

[Guest Blogger Simon takes a particular interest in the philosophical aspects of the abortion debate.  Here he considers the important role of bodily integrity.]
When studying the philosophy of abortion, it is often very
hard to find new perspectives.  Many
arguments run along the usual lines of bodily autonomy, personhood, the moral
value of autonomy and human life, etc. 
So I was surprised not long ago to have something pointed out to me that
led me to alter my stance.
Much is made of bodily autonomy and the Violinist analogy, arguing that even if an innocent human has a right to life that
doesn’t automatically override someone’s bodily autonomy. Granted, the case is
weakened because the violinist argument applies more to rape victims, but even if we
except consensual sex from the thought experiment, we run into a broader
problem.
A few months back I posted on an abortion thread raising the
bodily autonomy question and David Boonin’s Toxic Waste analogy.  I suggested that Boonin’s analogy is
consistent in principle with existing moral precepts: even if another moral
being is inside us we can still owe bodily compensation for causing existential
harm to another moral entity.  
Another
participant on the thread pointed out that nowhere in law do we allow
bodily compensation by the offender for the victim.  This is quite true; one not need have read
the Merchant of Venice to appreciate the problems involved with bodily
compensation.  Since this is the case how
can we ask women to give the foetus bodily compensation when our society does
not legally require this in any other situation?
Of course not having a precedent is not, in itself, a reason
to introduce a new law, but it does raise a point that doesn’t seem to have been
addressed in any detail. And this is not just a simple matter of introducing a
new law that focuses just on abortion and women, because when we think of legal
matters we must make a general case for the principle. If you didn’t make this
a general principle under the law, the result would be giving prenatal persons
more rights than post partum persons: offenders would be forced to abrogate
bodily autonomy to save prenatal life, yet post partum people cannot demand as
much. Conversely you are giving pregnant women who consented to sex fewer
rights than the rest of the population.
Such a principle would need to be applied in any case
wherein an offender causes severe or existential harm to the victim and the
only compensation is the temporarily use of the offender’s body, or if
applicable (without leading to death), use of the offender’s organs or blood. For
example, if a drunk driver caused a victim to need an organ transplant and no
other organ was available, the law would abrogate the drunk driver’s bodily autonomy
and allow the removal of the organ.
Unless this becomes a new legal principle, you don’t have
the legal or moral basis to force a pregnant woman who consented to sex to
compensate the foetus for putting it in existential peril. The most you could
do would be to offer the woman a choice between jail time or the fetus’s use of
her body.