Can we ever say a woman can't choose?

It's hard for pro-choicers to admit sometimes a woman shouldn't be allowed to choose abortion -- but we have to

Published June 21, 2009 7:20PM (EDT)

About 15 years ago I was on an ethics panel at a Planned Parenthood annual meeting. The format was the old Fred Friendly case study discussion: The moderator lays out a tough ethics case and then asks members of the panel what they would do if they were -- in Planned Parenthood's case -- the doctor, nurse, patient, clinic director, lawyer, whoever.

In one scenario I was the doctor and was asked if I would perform an abortion for a couple -- perfectly ordinary middle-class people -- who had a son and wanted a daughter to round out the family. The woman was pregnant with another boy. I said I wouldn't do it and I thought Planned Parenthood policy should preclude such abortions but be open to referring women to providers whose values may be more in sync with the patient's. I also suggested that institutions as well as individuals have values, and that those of us in leadership positions on reproductive rights had an obligation to let the public know what our values were – in all their complexity.

 Just because something is legal -- and should be legal -- does not mean it is always ethical. And sometimes the right thing to say to a woman is "I am so sorry, I cannot do what you ask."

 Some folks were outraged. It wasn't up to Planned Parenthood or any doctor to judge a woman's reasons for abortion, they said.  One provider told of a couple who had come to her clinic because the baby would be born under the wrong birth sign. The clinic paused; considered that women do not have to give reasons for abortions and saw no reason to penalize this woman because she was honest and gave what many might consider a not terribly good reason to end a pregnancy. Some said the couple would not be good parents, so let's end it before some child is born to foolish and selfish parents. I just could not agree.

Joan Walsh's appearance on Fox's "O'Reilly Factor" set me to thinking again about these tough questions, and whether it makes sense for the pro-choice movement to deal publicly with the ethical issues as well as the legal issues surrounding abortion. There's always been a fear in the choice movement that if we deal with "morality" we are going to lose. Even the word morality sends chills up the spines of some choice advocates. We are somewhat more comfortable talking about "ethics," although both words have the same meaning. Morals comes from a Latin root and is a "hot" passionate word, conjuring up religion. Ethics, from the Greek, is cooler, dispassionate, more distancing and secular. The anti-abortion forces make the moral arguments and we use the rights discourse; they talk about fetuses as babies, and we talk about women as autonomous people.

 But tough questions come up more frequently than they did in the first years after Roe, as more is known about the choices some women and couples make, and fetuses have become as visible as women. Sex selection is only one of many tough issues. Abortion when the fetus has mild disabilities – or even when the fetus has no disability -- is another. What about deaf couples who do not want a hearing child? Or as Ayelet Waldman reported on DoubleX, the woman in her support group who had an abortion because her fetus' hands were deformed.

 These things should make us pause and think hard. The thought of putting every woman through the indignity of meeting with an ethics committee, or getting a doctor to sign off on her reasons for abortion, has forced most of us to stick with the principle that women must be allowed to make their own private ethical decisions, without the state getting involved. But is it really leadership for us always to simply shrug and say: "Who knows whether that was an unethical decision for that woman?" Don't we express moral views about every other issue under the sun, from the number of embryos it is ethical to insert into a woman's uterus to the morality of bonuses for Wall St. executives who robbed us blind?  Expressing our views about controversial issues is how society develops norms and shared values.

 If pro-choice advocates follow the example of those opposed to abortion and present only one value -- a women's right to make this decision -- as the only ethical consideration worth discussing in difficult cases, do we not become as extremist as we say they are? Is there not, in an ethical sense, an important weighing of women's rights and needs against a respect for life, even the life of nonpersons? Is there a point in pregnancy when our respect for life might outweigh a woman's right to make this choice? And is the fact that we have avoided it part of the reason that polls show that more people are willing to call themselves pro-life than ever before?

If so, O'Reilly's opening salvo: "Do you feel late-term fetuses deserve any protection at all?" is a question we must answer -- and I would say answer in the affirmative. We have already decided that embryos and stem cells, very early forms of life, deserve protection, and we have regulations that govern how they can be treated as research subjects. We protect animals and endangered species, even some plants. How we treat these potential forms of persons as well as how we treat other living nonpersons has come to be understood as an indicator of who we think we are as moral persons. We are pro-life to the extent that we do not want to abuse or harm living things if we can avoid it. That at least is our ideal -- which we then regularly violate with war, torture, the death penalty, and the callous way in which we deny those in need healthcare, food, shelter and education.

 Still, I realize that expressing pro-life values, when you're pro-choice, is much more complicated. The fact that the fetus resides in the body of a woman requires special consideration of her rights. Protecting the fetus in any way comes with a cost that only women can bear. But I have come to believe that women's autonomy does not require that all efforts be made to protect women from pain or from hearing the word "no." The Supreme Court attempted to balance women's autonomy and respect for life in Roe by allowing states to "proscribe abortion [after viability] except when it is necessary to protect the life or health of the mother."

It would be a good idea for pro-choice advocates to stop calling this a "compromise," as though it was forced on us. Embracing it would mean public acceptance of the fetus as something that has some small claim on us. And the fact is, while pro-choice advocates maintain a public stance that sometimes seems absolute, providers of abortion services use finely tuned moral compasses. Doctors who perform abortions follow both the law and their own conscience. Even Dr. George Tiller, who most closely modeled the "trust women" value that permeates pro-choice thought, sometimes said no. Cristina Page reported on remarks Dr. Tiller had made at a professional meeting this spring. He talked about his own family's experience of providing shelter, delivery and support for women who were "too far along" for him to perform the abortion as one of the "the most powerful things" he had done and urged other doctors to do the same.

Of the only 1,787 doctors who perform abortions at all, 67 percent perform procedures only in the first 12 weeks of pregnancy. Another 13 percent perform procedures between 12 and 20 weeks. The remaining 20 percent of doctors report performing some abortions up to 23 weeks, but once you hit that 24-week limit only 8 percent will perform an abortion. And we know there are now only two doctors who will perform abortions after 24 weeks.

Some advocates are engaged in efforts to encourage doctors to perform abortions later than they currently do, but most are not demanding that doctors go beyond their comfort level in performing abortions. I think it's important for us to be able to say: When a fetus reaches the point where it could survive outside the uterus, is healthy, and the woman is healthy, and she has had five months to make up her mind, we should say no to abortion. One can and should have compassion for the woman or girl who seeks to end a pregnancy at that late date, but absent severe fetal abnormality, a threat to her life or a clinical diagnosis of serious mental or physical health consequences of continuing the pregnancy, I believe we should say: "I am so sorry. You waited too long. I know this is a difficult decision for you to bear, but we cannot give you an abortion. I will help you any other way I can, but I cannot perform an abortion."

 Some recoil from this conclusion. What about the teenagers who denied their pregnancy out of fear or shame, or the unfulfilled desire that their boyfriend would marry them, or just ignorance of their body? The very young ones will meet the definition of physical danger; older adolescents may not. Some may have clinical mental health problems, but President Obama was correct during the campaign when he said "mental distress" without clinical dimensions is not a justifiable reason for late-term abortion.

Nor are those cases where women's social circumstances changed late in the pregnancy -- they lost their job or were abandoned by partners. These are terrible things, and we need to do whatever else we can to help those women continue their pregnancy, keep the baby they once wanted or give it up for adoption. There is a point when our respect for potential life, for that individual fetus, should outweigh a woman's desire, even need, not to be pregnant.

I still have a twinge of doubt when I write these words. For most of my years as an advocate of a woman's right to decide, I stepped back from this conclusion. I could not bring myself to say that there are circumstances in which I would force a woman to continue a pregnancy.

What changed for me? Well, that Planned Parenthood meeting had something to do with it. Mostly, I feared that single value ethics about abortion, on either side of the debate, would result in a coarsening of our respect for both women and for life. Next week, perhaps I'll write about how that coarsening happens to those opposed to abortion -- like Bill O'Reilly.


By Frances Kissling

Frances Kissling is a visiting scholar at the Center for Bioethics at the University of Pennsylvania. She is the former president of Catholics for a Free Choice.

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