How Zika May Affect Our Thinking About Abortion

Posted in: Reproductive Law

Zika virus has now infected over 7,000 people in the United States (if we include the U.S. territories) and, accordingly, has affected increasing numbers of pregnant women among them. Because Zika can cause catastrophic birth defects in those infected with the virus, the spread of the infection in the United States and elsewhere has led some to ask soul-searching questions about abortion. Further complicating matters, the severe birth defects caused by Zika are not detectable by ultrasound until late in pregnancy. Thus terminations of Zika pregnancies combine two morally fraught questions: (1) Is it right to end a pregnancy because the baby would be severely disabled if brought to term? and (2) Is it right to take the life of a fetus late in pregnancy, regardless of the reason?

Reasons for Termination Should Be Irrelevant for Legal Purposes

As I argued in an earlier column, I generally consider the reasons for a woman’s choice to terminate her pregnancy to be irrelevant to the question of whether she should be legally permitted to do so. Like a woman who chooses not to have sex with a man for a bad reason, she is still entitled to be free of the bodily intrusion that is pregnancy, even if her reason for wanting to assert her bodily integrity is an offensive one. The most salient part of the equation is the fact that her bodily integrity is at issue.

Nonetheless, when large numbers of women may be terminating their pregnancies because of a particular set of birth defects, caused by the Zika virus, it is worth considering the moral question, even if our answer will not affect the legal conclusion that the woman should be free to terminate. Is it right to terminate a pregnancy because the resulting child will suffer from birth defects? Part of an answer depends on the nature of the birth defects. In the case of Zika, they can be horrifying, leading to microcephaly and a very abnormally developed brain, hardened calcium deposits in the brain, a breakdown in brain tissue, and brain swelling, among other problems. Therefore, unlike the case of Down syndrome, when the parents may be choosing abortion despite the fact that a Down syndrome child would be happy and glad to be alive, the decision to terminate the life of a Zika-infected fetus is arguably in the best interests of the fetus itself. Stated differently, it may be that an abortion will spare not only the parents but their child a life that is, in some sense, not worth living.

Ordinarily, if a termination takes place before a point in pregnancy when we consider abortion to be very close to killing a child, we have the luxury of being able to make a calculation that some lives may not be worth living. After all, people with markers for genetic diseases use birth control because they make that very judgment about the potential offspring that they would have, and few people quarrel with that use of contraception. And interestingly, the Pope has himself reportedly suggested that contraception (ordinarily barred by the Catholic faith) could be morally acceptable in the battle against the Zika virus. To the extent that an abortion happens when we still consider the fetus a “potential” life, then, the calculation that it would be better for this person not to come into existence at all than to be born and to live a catastrophically impaired life is one that, as with birth control, many of us would not judge to be morally problematic.

When Abortion Becomes Euthanasia

The problem with Zika birth defects is that they may not be detectable to doctors until relatively late in pregnancy, perhaps at a point when many of us would regard an abortion as morally significant. In my view, the point of moral significance is sentience, when the fetus is capable of experiencing pain or pleasure, and that may happen in the latter part of the second trimester or early part of the third trimester. Others may place the moral line at a different point, but the later in pregnancy we are referencing, the more likely that people will have the moral intuition that we are no longer talking about a “potential” child but are instead talking about either an existing child or at least someone worthy of nearly as much moral consideration as a newborn baby.

News reports have some women terminating Zika-affected pregnancies very late term, including, in one case, at 32 weeks. By this point, a normal, non-Zika fetus could be delivered, viable, and grow into a healthy baby. Indeed, it is not that unusual for a woman to give birth early at this point and to have what is already considered a “baby” (rather than a fetus) at the time of its birth. Accordingly, at this stage, two facts emerge that may change the moral calculus of abortion.

First, if the woman were truly concerned only about her bodily integrity, she could induce labor and safely give birth to her child, thereby ending her internal occupation without causing the death of her fetus/baby. It is therefore no longer clear that abortion (in the sense of killing rather than simply removing the fetus or baby) should even be legally acceptable, and most states prohibit post-viability abortions that do not threaten the life or health of the mother.

Second, because bodily integrity may no longer be a plausible driver of the abortion right, the choice to terminate the life of the fetus or child truly becomes a form of euthanasia rather than abortion. In other words, because we can no longer say that terminating the pregnancy will necessarily terminate the life of the fetus or baby, the choice to have an abortion (one that kills the fetus or baby) is really a choice to take the life of the fetus or baby because it is not considered a life worth living.

Once we enter the realm of euthanasia, it is no longer clear that late abortions for Zika virus can be morally justified. To answer the question whether they are, we may need to ask whether it would be morally and/or legally acceptable to kill the Zika-afflicted baby, once born, when abortion is no longer even arguably part of the equation. As a moral matter, some might want to argue that the lives of infants may be so compromised by defects, as would be the case for many of these babies, that killing them painlessly at birth would be a kindness rather than a harm. At this point in time, though, laws in the U.S. do not recognize euthanasia as a legitimate approach to an infant (or an adult) whose life might not be considered worthwhile, due to impairments or pain or some other index of value. Indeed, many within the disabilities rights community would find horrifying the prospect of euthanizing someone because of his or her impairments, especially when we are talking about an infant who cannot in any way give consent to the choice. Once we characterize the late-term abortion of Zika fetuses as tantamount to euthanasia, then, our laws and the moral intuitions that underlie them utterly reject such an abortion, and feminist arguments for bodily integrity no longer have much purchase.

A Legal and Moral Loophole

In short, then, the Zika virus and its impact on pregnancy raises extremely painful and difficult issues that we can ordinarily avoid when discussing abortion of pregnancies that would result in birth defects. The dilemma highlights the moral issue of discriminating against the disabled, always in the background when people terminate for Down syndrome, and brings that issue front and center, due to the late stage in pregnancy when defects are discovered. If one nonetheless concludes that because of the potentially catastrophic nature of the birth defects, children with Zika are better off not existing than living the severely compromised lives that they would otherwise live, the fact that they live inside a pregnant woman may give people a legal—if not a moral—loophole through which they can achieve their desired end, though it is really euthanasia. The pregnant woman can find a place where very late-term abortions are permitted, and end her pregnancy for the sake of the child who would otherwise have been born. She can do so without beginning the slide down the euthanasia slippery slope, because we can fit what she has done under the heading of “abortion” instead of “euthanasia.” But though this might work legally, the issue of euthanasia nonetheless lurks and beckons to us to answer the question: might some lives be better off ended than permitted to continue, given what is in store for them? The woman who terminates at 32 weeks for Zika-caused birth defects may thus have indirectly made a case for euthanasia, while allowing us to pretend that what she has had was just another abortion.

5 responses to “How Zika May Affect Our Thinking About Abortion”

  1. Rita, Canberra says:

    Your premise that pregnancy is “a bodily intrusion” cannot be taken seriously. There is no intrusion. Pregnancy is simply the natural consequence of sexual copulation at the fertile stage of a woman’s cycle.

    You are mistaken too in your claim that a pregnancy offends against against a woman’s “bodily integrity”,
    Not so.
    There is no truth in the disturbing implication that the child in her mother’s womb is some kind of gross parasite deliberately violating her mother’s bodily integrity. The only purpose of such claims is to misrepresent pregnancy as an unjust imposition that can be alleviated only by ‘legal abortion services’ that offer each mother the ‘choice’ to have her unborn child exterminated. Such an ideologically driven view of pregnancy is extremely negative and can be made to work only by deliberately dehumanizing the unborn child at risk of abortion.
    Finally, you make a rash and largely unsubstantiated judgment that “because of the potentially catastrophic nature of the birth defects, children with Zika are better off not existing than living the severely compromised lives that they would otherwise live”.

    You need to do some real research into the real lives of children with microcephaly (please note, they are not as you call them “children with Zika ).

    You could start by talking to some of the medical experts at at the Boston Children’s Hospital, many of whom it seems, would not agree with you that children with microcephaly are to be considered so hopelessly deformed that they should be killed before birth:

    “Unfortunately, microcephaly is a lifelong condition that cannot be cured. However, there is hope: Advances in neurological care have made possible new ways of managing a child’s symptoms, allowing a child to achieve and enjoy an optimal quality of life.”

    “Early Intervention Programs; special needs preschool classes; and physical, occupational and speech therapies — can make a huge difference and help children with microcephaly achieve their full developmental potential.”

  2. Rita, Canberra says:

    Medical experts at the Boston Children’s Hospital, it seems, would not agree that children with microcephaly (not “children with Zika”) are to be considered so hopelessly deformed that they should be killed before birth:
    Unfortunately, microcephaly is a lifelong condition that cannot be cured. However, there is hope: Advances in neurological care have made possible new ways of managing a child’s symptoms, allowing a child to achieve and enjoy an optimal quality of life.”

    “Interventions — such as Early Intervention Programs; special needs preschool classes; and physical, occupational and speech therapies — can make a huge difference and help children with microcephaly achieve their full developmental potential.”

    Children at risk of abortion because of microcephaly have human rights too.

    Selective abortion is a violation of these rights and should not be facilitated by health professionals and government programs.

    The biological and legal truth about each child at risk of abortion because of a disability is that he or she is a human being entitled under the rule of law to human rights protection “before as well as after birth”, as ‘recognized’ by the Universal Declaration of Human Rights (See UN Declaration on the Rights of the Child and the UN Convention on the Rights of the Child).

    This is not the first time that children with microcephaly have been targeted by doctors for direct killing.

    At the behest of the parents of a child with severe disabilities, Hitler approved and authorized doctors to kill this child in the summer of 1939.

    This was the start of an infamous program for the medicalized killing of children with disabilities.

    Doctors and midwives were required to report all cases of newborns with severe disabilities. Those to be killed were “all children under three years of age in whom any of the following ‘serious hereditary diseases’ were ‘suspected’: idiocy and Down syndrome (especially when associated with blindness and deafness); MICROCEPHALY; hydrocephaly; malformations of all kinds, especially of limbs, head, and spinal column; and paralysis, including spastic conditions”. [capitalized emphasis added] (See Ulf Schmidt and Karl Brandt’s 2007 study: The Nazi Doctors)

  3. Euthanasia is more than a slippery slope and yes social society has already started down that slope. Causing death because it is seen better and supported by the influences of the social person(s) with a power voice is not to far off from the influences of supremacy ideals for the good of all by one or any group of persons all relates to the same end. This is the way of slavery and social self destruction. People should be responsible for their own decisions as well as what befalls them by chance. Can or will others help? Yes and I would hope that they would but hardship does not equate to the right to defile an-others right to life in my opinion. Many will argue when life starts at a certain time but once that is determined or accepted at a age the line is drawn that should never be crossed. If or when this happens it leads to life only being allowed to those that qualify in quality and others should not be allowed to live. Think of this; generally persons over 45 start slowing down and are not as productive. Persons that have a sickness, uses drugs or has diminished vision may not be seen as productive as general society. Where could we go with that, you say never happen. Look at history and you will realize that anything can happen.

  4. Rita, Canberra says:

    I have posted two respectfully worded critiques of some of the ideas in this article and both have been censored. Has this article been given some special status that protects it from comments that are in any way critical?

  5. g kelly says:

    Professor Colb avoids what may be the most important issue, which is who should make the decision in these cases, whether society as a whole, or the individual woman involved, who would be forced to carry a severely disabled baby to term, and then care for the child for the remainder of its life – or her life.

    It appears obvious that “Rita” from Canberra thinks a woman should have no voice in what happens to her body once she becomes pregnant, and I think she argues her position with force and conviction. I wonder what she thinks about cases of rape or incest. Others may disagree with the relative weight she places on the moral issues involved.

    I agree with Ms. Colb that for most of us, the question of whether or not to abort a late-term pregnancy involves a significant moral choice, which includes balancing the interest of the child with those of the mother. In addition, formidable economic costs are involved in the USA and other countries where there is no government-provided health care or compensated maternity leave, and where the necessary interventions to provide some quality of life for the affected children are both significant and likely to fall on the parents.

    In my view, the most important question is the autonomy issue addressed above.