How to Reduce the Abortion Rate

Recently a friend asked me how I think the abortion rate can best be reduced. The following is my answer to him, which borrows liberally from Charles Camosy’s proposal in his excellent book “Beyond the Abortion Wars.”

“I agree that blanket abortion bans can be both odious and counterproductive–cf. El Salvador, Nicaragua, Paraguay, etc, where hospital beds routinely become crime scenes, uteri have been forcibly removed and sent to forensics labs, 11 year old rape victims have been forced to carry pregnancies to term, women often die or are seriously harmed in botched illegal abortions, and women are currently serving long prison terms for abortions that may have actually been miscarriages, taking them away from their born children and sometimes exposing them to sexual violence. In my view these abortion laws, though well-intentioned, fail to adequately respect the rights and autonomy of women and do more harm than good. I also agree that not everything that is immoral should be illegal–I am not opposed to morals legislation in principle, but I often am in practice because legislating morality is so often self-defeating.

That said, abortion-on-demand is not morally on a par with other immoral practices like drug use or prostitution that arguably should be legalized or decriminalized. Abortion-on-demand involves wide-scale lethal violence inflicted on innocent human beings. The most fundamental duty of the state is to protect all human beings within its borders from aggression. A state that permits violence against its citizens (much less a state that encourages and funds such violence) fails to fulfill its primary duty as a state. Justice therefore demands that the unborn receive equal protection under the law. In addition, though greater social support for pregnant women is indispensable, it may not be enough on its own to end the prevalence of abortion (witness the high abortion rate in countries like Sweden and Britain where the welfare state is more expansive than ours but abortion-as-birth-control is still depressingly common). It’s also worth noting that, despite the pro-choice conventional wisdom, it doesn’t seem to be the case that greater protection for unborn human life inevitably impedes the equally worthy cause of women’s equality. Ireland and Poland both have significant restrictions on abortion, but they still manage to score highly on cross-national comparisons of female opportunity. In The Economist’s 2015 glass-ceiling index, Ireland’s score is not meaningfully different from that of its very pro-choice neighbor Great Britain, and Poland scores significantly higher than the United States (http://www.economist.com/blogs/graphicdetail/2015/03/daily-chart-1). So on all of these grounds I believe that the equal dignity and worth of the unborn should be recognized in law.

However, we shouldn’t overlook the fact that the burdens of pregnancy and child-rearing are not negligible and they fall disproportionately on women. Painting with a broad brush, the stereotypical conservative view is that abortion is driven primarily by individual irresponsibility and callousness while the stereotypical liberal view is that it is driven primarily by structural inequalities and injustices. In reality, as with many issues, it’s a combination of both. Respect for the rights of the unborn is a moral imperative, but respect for the equality and autonomy of women requires opening our eyes to the structural factors that drive many women to abortion and not promulgating any significant new restrictions on abortion without also making significant changes to our social structures. This agenda would need to be more fully fleshed out, but it might include requiring employers to provide accommodations for pregnant employees, guaranteed nationwide paid maternity and paternity leave, universal pre-K and child-care, a generous child tax credit, child savings accounts, nationalizing safe haven laws that make it possible for biological mothers to leave their infant children at the hospital without fear of being charged with child abandonment, and a new law enforcement database that allows all levels of government to communicate with each other and access each other’s data in order to track down fathers who refuse to pay child support. As you mentioned, better sex-ed and access to contraception could also be part of the package.
A more restrictive abortion policy would also need to come with exceptions. It goes without saying that cases where the life of the mother is at risk should be among those exceptions. Indirect abortion (i.e. C-sections, hysterectomies, RU-486) is almost always sufficient to terminate a life-threatening pregnancy, but in those rare cases where a surgical abortion (one that aims at the death of the fetus rather than merely detaching it from the mother’s body) is necessary, it should be legal. In cases of severe fetal malformation where there is no cure and the child will either die in utero or shortly after birth, labor could be induced prematurely. Some ‘pro-lifers’ think that abortion should not be available to rape victims, but I think that position is both unrealistic given public opinion and wrong on the merits. Being forced to carry the child of the person who violated you in one of the most heinous ways conceivable is a burden that we cannot begin to understand. Further, intuition suggests that our obligations to our biologically related children that were not conceived through consensual sex are less stringent than our obligations to those that were conceived through consensual sex (it seems to me that a man who is raped by a woman shouldn’t be forced to pay child support, nor should a man whose semen is stolen from a fertility clinic and used to fertilize an egg that is then implanted into a woman’s womb have to pay child support). It would still be objectively wrong for a woman who becomes pregnant as the result of rape to intentionally kill the fetus she carries (though her subjective culpability might be mitigated by her harrowing circumstances), but it would not be wrong for her to refuse to sustain the fetus with her body, and the law should respect this choice by permitting indirect abortion in such cases.
Moreover, in view of the difficulties involved in the state’s attempting to adjudicate whether every pregnancy within its borders is the result of rape or of consensual sex (not even every violent rape by a stranger can be proven, and much non-consensual sex occurs in the more ambiguous context of abusive relationships and hook-up culture), the state should accept the mother’s judgment as to whether the sex that resulted in her pregnancy was consensual. Naturally, some deceit would take place. But, short of running roughshod over civil liberties and transforming the United States into a dystopian police state, the government simply does not have the ability to verify the circumstances of every conception in the United States, nor should it try to. Therefore, indirect abortion until the eighth week of pregnancy via RU-486 should be legal by prescription with the presentation of a signed affidavit claiming that the pregnancy is a result of non-consensual sex and of certification of a counseling requirement during a three-day waiting period. Beyond this eight week window, indirect abortion (via C-section or early labor induction since RU-486 only works during the first eight weeks) would be permitted only if the mother can legally demonstrate that the sex that produced the child was non-consensual. I think this would be a reasonable way of balancing respect for the right to life of the unborn with respect for the right of female rape victims to bodily autonomy and that of the general populace to privacy. And I am optimistic that the greater social support for pregnant women and increased cultural acknowledgment of the worth of the unborn facilitated by its recognition in law would help to make deceit relatively rare.
That’s my tentative and prolix response to the question of how to reduce abortion. I don’t think it is overly utopian, though it is certainly ambitious. Let me know if you can think of any objections or things I haven’t considered.”
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