Mike Pence’s Abortion Law

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Posted in: Reproductive Law

Donald J. Trump’s chosen running mate, Governor Mike Pence of Indiana, has as one of his claims to fame his strong and uncompromising opposition to abortion. In March, he signed into law a measure prohibiting women from terminating a pregnancy based, among other things, upon the Down syndrome status of her fetus. Though a court quickly suspended the law on the ground that it violates a woman’s constitutional right to have an abortion, the type of terminations targeted exposed something about abortion that pro-choice groups often prefer not to discuss: there is a disparity between the reasons women have for terminating their pregnancies and the reasons pro-choice advocates proffer for protecting women’s right to choose. Being honest about that distinction is important so that everyone can understand what is at stake in debates over the right to abortion.

Why Protect the Right to Abortion?

People who are pro-choice generally identify two basic reasons for protecting the right to abortion: a woman’s sovereignty over her body and the lesser status of an embryo or fetus relative to a baby. The first reason has to do with the bodily integrity of a person and her interest in avoiding having to serve as a human incubator against her will. Although many women are happy to learn that they are pregnant (many of them the same women who, at other times, have confronted an unwanted pregnancy), a significant proportion of them are not. Pregnancy imposes an enormous physical burden, diverts the woman’s blood supply to the placenta (which nourishes the fetus), causes nausea and vomiting, limits the woman’s mobility, and ultimately leads to either major surgery or an extremely painful process appropriately called “labor.” The pro-choice argument based on a woman’s self-sovereignty contends that none of this burden ought to be forced upon a woman against her will. An abortion is a method by which a woman can free herself of what, from her perspective, may be a parasitic organism (even if otherwise entitled to respect). This argument has a feminist piece: forced pregnancy infringes women’s but not men’s bodily integrity.

The second main pro-choice reason for the right to terminate a pregnancy is the status of an embryo or fetus: It is considered either a mere something or, if more, as someone “less than” a born individual, including the woman who is pregnant. As such, ending the life of the embryo or fetus does not raise the same sorts of moral concerns as ending the life of a born child would. This set of arguments regards the embryo or fetus as at most a “potential person,” in the way that sperms and eggs are potential people. Thus, abortion does not constitute “murder” or any of the other sorts of legal and moral crimes that killing an already-born human being ordinarily would.

Most Americans are either strongly pro-choice or at least pro-choice with respect to abortions early in pregnancy. In either case, under real-world conditions the two kinds of arguments combine to support pro-choice views, especially for early abortion.

Why Women Terminate

In a small class of cases, women terminate their pregnancies because continued pregnancy threatens their lives or their health. In the United States, even people who generally identify themselves as “pro-life” support a woman’s right to an abortion to save her own life. This view seems to reflect the feminist perspective on abortion rights that says that the embryo or fetus is threatening the woman’s sovereignty over her body, though in this case “sovereignty” amounts to the ability to survive. The woman who terminates for this reason might very well wish that she could have her baby: her goal is not to kill the embryo or fetus that lives inside her but to save her own life from an internal threat. Unfortunately, in these cases, saving her life has the “side effect” of killing the embryo or fetus. For this class of abortions, the sovereignty reason given for protecting the right matches up well with the actual reason that the woman wishes to terminate. She wants her body back (intact and alive).

But most women who terminate their pregnancies do so for very different reasons. They may not want to have a child with the particular man who impregnated them; they may have enough children to support without another mouth to feed; they may not feel ready to take care of a child at all, either emotionally or financially. Or in the case of rape or incest, they may not want a reminder of the traumatic event that produced the pregnancy. And some may not want to have a child with Down syndrome.

What do all of these reasons have in common? They are disconnected from the physical imposition that pregnancy imposes on the woman’s body. That is, she is not terminating because she finds pregnancy too burdensome physically. She is terminating because she does not want the child that would result if she took her pregnancy to term. To say this differently, she really does want to kill the embryo or fetus, and that killing is not simply a side effect of her wishing to regain her bodily integrity.

It is not easy to talk about these reasons in this way, because it may sound callous or indifferent to the people that the embryos and fetuses either already are (depending on what stage of pregnancy one finds relevant) or will one day become. The Down syndrome reason in particular seems like targeting a disabled proto-infant for killing because the parent wants the proto-infant to die.

Why Still Protect the Right to Abortion?

Once we acknowledge that women are generally terminating their pregnancies for reasons unrelated to the physical imposition of pregnancy, doesn’t it make sense to prohibit at least those sorts of abortions? In other words, if a woman is objecting not so much to the pregnancy but to the child that the pregnancy is creating, then why can’t the law come in—as Governor Pence attempted to have it do—and say “you have no right to kill the embryo or fetus; you have only a right not to be pregnant against your will, and the pregnancy is not what you are objecting to here”?

One answer, as Michael Dorf and I discuss in our book, Beating Hearts: Abortion and Animal Rights, is that once a pregnant woman decides, for whatever reason, that she no longer wants to be carrying a pregnancy to term, she has a powerful interest in freeing herself from the physiological burdens of pregnancy. That is, her reason for wanting to terminate does not alter the fact that forcing her to remain pregnant against her will imposes an unwanted and enormous physical burden on her body.

By analogy, Dorf and I discuss a hypothetical case of a woman who is asked by a man whether she wants to have sex with him. It turns out that she is attracted to him and would be interested in sex but for learning of his racial background. Because of what she has learned, she refuses his advances and tells him that she is not consenting to having sex. If he nonetheless forces her to have sex with him, he is a rapist—no more and no less so than if the woman had a very different reason (perhaps a nicer reason) for refusing to have sex. When a woman decides she does not want to be physically occupied by another—even another full person, such as the man who wishes to have sex with her—she has the right to repel that occupation, no matter what her reasons are for not wanting the affiliation. In the case of the rapist, moreover, the woman can kill him if necessary to prevent him from raping her, despite the fact that her reason for not wanting him is an offensive one.

By the same token, many people may dislike a woman’s reasons for wanting to terminate her pregnancy. They may point to the fact that her reasons have nothing to do with the physical occupation of her body but have to do instead with finances, emotional stability, Down syndrome, or even the sex of the fetus. But what’s wrong with prohibiting abortion for a “bad” reason is that once the woman wants an abortion, the refusal to permit her to have one represents an assault on her bodily integrity, even if the physicality of pregnancy was not what initially made her want to abort.

Down Syndrome

The desire to abort because a woman is carrying a fetus with Down syndrome is especially heartbreaking and fraught. On the one hand, many children and adults with Down syndrome live happy and fulfilling lives, and their parents often report that they are glad and relieved that they decided to have them despite the prenatal diagnosis. On the other hand, a focus on the woman’s sovereignty over her body (coupled perhaps with the fact that the fetus is not yet fully formed) tells us that even in these tragic cases, we should not be forcing women to carry pregnancies to term against their will.

One day, it may be possible to remove an embryo or fetus safely from a woman at whatever stage of pregnancy without harming the life inside her (think artificial womb). At that point, we may want to look more closely at the “not yet a person” rationale for abortion and allow some fetuses (perhaps after sentience) to live even if the woman carrying them would prefer that they did not. The right, then, is to not be pregnant (rather than affirmatively to kill the embryo or fetus). But until we have the artificial womb, not being pregnant is inseparable from procuring the death of the embryo or fetus. If, for whatever reason—good or bad—a woman wants to stop being physically occupied by another, she should have that right, even as we recognize with some discomfort that the reason she has the right may be very different from the reason that she is exercising it.

  • False analogy.

    A child in utero is present, not by choice, but by the typically voluntary act of her mother. The correct analogy is to the host that murders her guests at the party that she invited them to attend.

    • JoyceSigns

      The issue is the occupation of your *body* by an unwelcome occupant.

      If your sexual activity results in an embryo or fetus occupying your body and you do not want your body occupied by that embryo or fetus, the law grants you the right to regain your bodily integrity by killing the embryo or fetus, if that is your choice.

      In terms of houseguests: you have a legal right to change your mind about permitting a previously invited guest to remain in your home, and the law does not care about *why* you changed your mind — that’s your business. You may legally ask the guest to leave your home and, under the law, the guest must leave.

      Once an invited guest occupies your home, he or she does not then have the legal right to remain there indefinitely no matter what you say.

      Your home is your domain and therefore *you* maintain (a guest does not take away) your right to control who enters it and how long they may stay — you maintain the right to change your mind and then ask the guest to leave.

      If a previously invited guest, upon being asked by you to leave, refuses to leave, you may take action to have them removed (i.e. calling law enforcement, etc.).

      • ockraz

        You seem to be missing the point. You’re right about what the law permits, but the question is about whether the law is unjust or not. Your response to Jim Henderson’s comment has the same problems as his. First it’s not accounting for the fact that the unwanted presence wasn’t chosen (no invitation was accepted) or for the fact that there was usually no invitation to begin with (but the presence of the individual now deemed unwelcome was something unintentionally caused by the person now wanting them gone).

        Second, it doesn’t account for the fact that leaving necessarily entails dying. You’re right about a case that merely concerns a house that you own, and which you can consider to be your domain. If you want someone to leave and they just don’t wish to, then they need to leave, plain and simple or else you can have them removed. Unfortunately, this isn’t just about not wishing to leave, but about being forced to die. So, while you’re right about the house, you would be wrong with regard to a ship at sea that you were captaining, which you could likewise consider to be under your domain. That is because in the latter case ‘evicting’ someone would mean killing them. Even if you found that there was a stowaway aboard a vessel under your command, you could not force them to just “walk the plank” and drown.

        Moreover, referring back to the first point, this is clearly not a case of someone who could be likened to a stowaway, since that would require that the individual came to be on board without permission, and in this case the opposite is true. It’s a case of someone who merely found themselves on board a ship but never gave their consent to be located there.Their presence is a result of the actions of the captain. If anything, they’ve been shanghaied. Now, maybe you didn’t intend them to be shanghaied and you gave the wrong order by mistake, but that’s hardly a justification for throwing them overboard to die of drowning.

    • Rudy R

      Consent to sex is not consent to getting pregnant. Consent to getting pregnant is not consent to carrying the fetus to term.

      • ockraz

        Your point is irrelevant. On the autonomy argument, you’re not making the case based upon the lesser status of the embryo or fetus, but upon competing rights claims. It’s true that there is an absence of consent on the part of one party (the gravida) if she’s not allowed to end the pregnancy but equally true that there is no consent on the part of the other party (the prenate) if he or she is killed. Since either eventuality will require acting against the interests and without the consent of one party or the other, merely pointing out that the outcome you don’t like is one where there is an absence of consent does nothing to argue that your preferred outcome is the better one.

        • Rudy R

          What’s the basis for a fetus ‘ rights?

    • ockraz

      Actually, there are problems with your analogy as well:
      1) This is not a case where a guest accepted an invitation. It was caused to be in the woman’s body purely as a result of the actions of the woman and her partner. The prenate had no opportunity to refuse an invitation to be present.
      2) This is usually not a case where an invitation was proffered. Instead it is usually the case that someone is caused to be in a place either by accident or by negligence. (I believe that Planed Parenthood studies show that only 5% of unplanned pregnancies occur when contraceptives are used properly, 40% result from improper use, and 55% result from non-use.)
      3) Your analogy doesn’t account for the fact that exiting the place where one is unwelcome will result in your death even if you weren’t killed prior to being removed.

      I think a better analogy would be if you made some sort of error which resulted in someone being relocated (without their consent) in an isolated research station in Antarctica during a blizzard, then telling them that they may not stay and share your shelter for however many weeks it will take until the weather permits them to be evacuated. Despite the fact that you caused them to be at the station, you see them as unwelcome and don’t want to have cut your rations to share with them. If they don’t agree to march out into the blizzard under their own power to freeze to death, you tell them that you’ll be happy to put a bullet in the back of their head and dump their body in a snowdrift.

  • Brandie Cone

    You left out one of the most significant “bad” reasons to have an abortion: birth control for those who are too irresponsible to think about the consequence of pregnancy before engaging in sex. I don’t think this reason changes your argument at all (which I understand to be that the reason for termination shouldn’t matter), but I do think that this is one of the significant concerns of those who consider themselves pro-life.

    • ockraz

      I think that the way that it works into the argument on the pro-life side is that it shows how nonsensical it is to argue that abortion should be considered a case of repelling an unwanted intrusion. As I said above, according to Planed Parenthood’s own studies only 5% of unplanned pregnancies
      occur when contraceptives were used properly, while 40% result from improper
      use, and 55% result from non-use. So in 95% of cases, the unwanted pregnancy isn’t an intrusion and a violation of bodily integrity; it’s something the pregnant woman (as well as her partner of course) bears the responsibility for. It’s a misfortune if your error results in something akin to an illness (ie, “nausea and vomiting, limits the woman’s mobility, and ultimately
      leads to either major surgery or an extremely painful process
      appropriately called ‘labor’”), but it’s wrong to say that you can kill what amounts to as innocent bystander in order to escape a misfortune for which you are yourself responsible.

  • Victor Grunden

    In this day and age of unlimited birth control it seems these women aren’t very good sovereigns over their bodies in the first place. The Spartans gave their children a wine bath and left them out overnight naked in the elements. If they died, they reasoned the babies weren’t strong enough to live a full life and it was better to die in infancy. With our stumbling knowledge of genetics we are not too far behind. Just seems more aesthetic to do it in the womb.

    • ockraz

      Indeed. The Spartans and the Romans after them both committed infanticide and seemed to regard it as unobjectionable. The argument for a right to abortion which is based upon lesser status of prenates, if applied consistently, would also justify infanticide since they also lack the level of mental sophistication which ethicists consider to be necessary to have personhood. I do think that the main difference is that by doing it earlier and in such a way that no one can see it, people can perform an equivalent action but still convince themselves that their hands are clean. I think that that’s probably what you were getting at when you referred to the ‘aesthetics’ of it. I think a similar case of “clean hands” thinking occurs when people who are ethically or politically opposed to capital punishment become big supporters of using drones for targeted killing.

  • AKLady2015

    The Bible approves of abortion. Exodus 21:22-25; Ecclesiastes 6:3–5; Numbers 3:39-40; Genesis 2:7; and Numbers 5:27

  • HoosierMommy

    Professor Colb, I would like to point out that the statute prohibited abortions sought because of fetal disabilities. The discussion focused on Down’s, but the statute itself is much broader.

  • JoyceSigns

    The answer to your question is in Ms. Colb’s above article.
    In the United States, we are allowed to use the amount of force required to remove an unwelcomed occupant or parasite from our body.
    If the force required to remove an occupant from your body is to kill it (or him, or her), then killing is allowed. This is existing law that protects us from being occupied against our will.
    Your question is “[S]hould we allow … ” and the answer is that we *are* allowed to kill to regain our bodily integrity *if* killing is *required* in order to free us of unwelcomed occupation by another.

    • ockraz

      That’s the argument, certainly, but the argument requires one to accept the way that those supporting abortion rights frame the situation is correct even when it is wrong. It’s not a case of repelling an invader or removing an unwanted intruder. It’s not even justifiable as a matter of defending bodily autonomy because that argument works only if you both mischaracterize the situation and deny bodily autonomy to the fetus- which means that such arguments really are about deeming prenates to have ‘subhuman’ status that permits them to be killed.

  • ockraz

    Actually, it’s not that “we should allow a woman to take a human life because of its imposition on her,” but that we should allow a woman to take a human life because doing so would relieve her of physical burdens which she caused herself to suffer from.