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.