How Medical Abortion Challenges the Practice and the Moral Condemnation of Ending a Pregnancy

Posted in: Reproductive Law

On December 16, the U.S. Food & Drug Administration (FDA) decided to permanently allow doctors to administer medical abortions by telemedicine and through the mail. The prior rule (from before the pandemic) required a doctor to see a patient in person while giving her the two medications that terminate a pregnancy of up to 10 weeks’ gestation. The first medicine, mifepristone, blocks progesterone, the pregnancy hormone (literally pro-gestation) that directs the uterus to thicken and become hospitable to a growing embryo and fetus. The second medicine, misoprostol, induces uterine contractions that expel the excess uterine lining and the products of conception.

Medication abortions are safe and effective, so it is unclear why a doctor ever had to hand the medicine to the patient in person, especially when the patient goes on to take the drugs somewhere else. Doctors prescribe other medicines for their patients without having to interact with them in person or hand them pills directly. Even controlled substances like Fentanyl do not require this special procedure. Only politics could explain the old rule.

The pandemic presented another reason not to demand that doctor and patient see each other in person during the transfer of pills. Attempts to limit the spread of COVID-19 seemed inconsistent with enforcing a rule that lacks a plausible rationale and has the downside of exposing many more people to the virus. Indeed, medication abortion may be the primary method of abortion during the first eleven weeks of pregnancy. And the overwhelming majority of abortions happen during the first trimester (thirteen weeks). With almost 900,000 abortions a year in the United States, a rule requiring face-to-face pill handoffs amounts to a lot of unnecessary face-to-face meetings, particularly during a pandemic.

In response to COVID-19 and for its duration (whatever that might have meant), a federal judge suspended enforcement of the in-person medication abortion rule. Under the suspension, a doctor could meet the patient virtually (e.g., over Zoom) and then send her the medicine by mail. In anticipation or in response, nineteen states have already banned telemedicine visits for abortion medication, and others have put limits on the practice, presumably in the expectation that the Supreme Court will overrule Roe v. Wade this term.

Implications: The Obvious

Even in states that prohibit telemedicine abortion or limit it to some number of weeks short of ten, women still have more options than they did before. Traveling to another state to terminate a pregnancy is burdensome, to be sure. But driving to another state to talk with a doctor in that state on one’s laptop through telemedicine, after which the doctor mails the woman two pills, exposes her to far less harassment and intimidation by advocates of forced pregnancy and birth than visiting an actual clinic to have the procedure. Patients can take the two pills at home or anywhere they feel comfortable and enjoy the privacy that both legislators and protesters have routinely denied them. Telemedicine abortions—even out of state—will also generally cost less than the surgical variety.

Abortion may soon become completely illegal in many states and perhaps in the whole country, if Republicans take over both houses of Congress and the presidency. Nonetheless, the illegal termination landscape too will look different with the availability of medical abortion. Asking a friend or an unlicensed practitioner to scrape products of conception out of the womb is far more likely to end in infection and death (of the woman) than is ordering some pills over the internet. The drugs may occasionally not be entirely pure, of course, but the image of the coat hanger can recede a little in the wake of medical abortion, at least for early terminations. And as the proportion of medication abortion rises in response to legal developments, first trimester terminations might now involve a choice between a nonexpert in a back alley and a couple of pills purchased from another country over the internet. For the government to keep track of who orders such pills would require something close to a police state, which even the most zealous anti-abortion advocates might prefer to avoid.

So medical abortions are likely to make terminating a pregnancy more accessible and affordable and less dangerous even when illegal, a welcome development in light of the Court’s no-longer-hidden plans for Dobbs v. Mississippi, the abortion case it heard earlier this month. There is something especially satisfying for opponents of forced pregnancy and birth about a technology that takes some of the power to successfully regulate abortion away from states just as the Court is poised to give them that very power.

Not So Obvious

Beyond bringing good news for people who support the right against forced pregnancy and birth, medical abortions also offer an ethical argument to consider for those who generally condemn abortion. When I have discussed the issue with people on the other side, I generally explain (the rather obvious fact) that pregnancy is an active state in which the body works hard, and the placenta siphons nutrients away from the mother to meet the needs of her fetus, thus burdening the woman. The other side insists, by contrast, of speaking as though all it is asking from the pregnant woman is that she refrain from committing an act of violence. Just as you may not stab your neighbor or co-worker to death (even if you would very much like to do so), the pregnant woman may not kill the embryo or fetus. In reality, being pregnant is an affirmative burden of hard and hazardous work, not a passive refraining from attack.

Still, if I must answer the question of whether terminating a pregnancy involves direct violence to the embryo or fetus or whether it just involves ending a pregnancy, the question is hard to answer. Most abortion methods involve killing the embryo or fetus and then removing it from the woman’s body. Later in pregnancy, the abortion methods that bother many people involve suctioning the brain and then taking apart the fetus’s body and removing each of the parts. The reason for the latter procedure is that later in pregnancy, the fetus’s head is already large, and it seems pointless to force the woman to endure hard labor when the fetus cannot even survive outside the womb. Disassembling the fetus’s body makes removal less injurious to the patient.

Nonetheless, if one believes that “killing” an embryo or fetus directly is wrong, then all of these surgical methods of abortion are wrong. Medication abortion is different. Taking the first pill simply blocks progesterone and thus stops the building of the uterine lining, and the second removes the products of conception (the embryo, blood) from the body by causing contractions. Neither pill poisons the embryo or otherwise kills it. The death of the embryo is an incidental effect—a collateral casualty—of removing it from the woman’s body. The woman is therefore deciding not to have the embryo in her body, and it is the embryo’s pre-viability status that results in its death.

So long as it is legitimate for the woman not to want to invest the enormous and intimate bodily effort involved in turning an embryo into a baby inside her body, there is an argument that she is at least as justified in removing it as she would be in removing a catheter that connected her to someone (a full person) who was using her body as a respirator or a dialysis machine. (And yes, I am aware of similarities to Judith Jarvis Thompson’s violinist.) The death results from the other entity’s or person’s need, not from the direct action of the pregnant woman or the human respirator/dialysis machine in disconnecting the embryo or person. The Supreme Court has insisted, in keeping with this distinction, that even though an individual has a presumed right to remove life support if she no longer wants it, she does not enjoy a right to physician assistance in dying.

Those familiar with Catholic theology will recognize that I am making what sounds a little like a Doctrine of Double Effect (DDE) argument. I am putting the finishing touches on a scholarly article about my own version of DDE. Most people understand this doctrine to hold that if a person intends something bad, then the action he takes with that intent is wrong, but if he intends something legitimate and sufficiently good to justify the bad effect, then the action he takes with the good intent is fine or even good. A familiar example is that if you want to help your patient die—and assisting a suicide is, by hypothesis, wrong—then giving the patient a morphine overdose to that end is wrong. If, on the other hand, you want to alleviate your patient’s excruciating pain—and alleviating terrible pain with the high morphine dose is necessary and legitimate and proportionate to the harm of death caused by the overdose—then giving your patient that same overdose is a fine thing to do.

Many have criticized the DDE, as described above, for distinguishing between identical actions based on intention and defining one as legitimate and the other as bad. I propose in my article (and here, briefly) that the more sensible application of DDE is that we do not literally ask what is in the person’s mind as a matter of intent. If a doctor gives a patient enough morphine to alleviate terminal pain, and that amount of morphine brings about death, then even someone opposed to assisted suicide should be comfortable with what the doctor did and need not inquire into her true motives. But if the doctor kills the patient in a way that could not possibly alleviate pain, like injecting a poison, then there is no DDE defense because the only way the injection could address the patient’s pain is by killing the patient and therefore his pain forever. That is direct killing as a means of ending pain, and that is illegitimate, by hypothesis.

I support the right to physician assistance in dying as well as the right to direct abortion (i.e., even the type that involves killing the embryo or fetus). However, I understand the difference between directly doing something objectionable and having something objectionable happen as a result of doing something legitimate. For instance, if a military bombs a munitions plant knowing that three civilians will die (and that there is no way to spare the civilians without aborting the mission), then that mission might be legitimate. It pursues an acceptable objective, and the harm is not disproportionate relative to the benefit. By contrast, if a military just dropped a bomb on three civilians, that action would not be legitimate at all. It is clearly not a “side effect” of some legitimate action because there is no such legitimate action. We can tell when we are dealing with a DDE situation because we can plausibly explain the action as aimed at a permissible objective (regardless of what the actual intentions of the actors might be). Likewise, when we cannot explain the actions by resort to a legitimate and proportionate objective, then the action is impermissible.

Returning to abortion, for people who believe that killing an embryo or a fetus directly is wrong, the medication abortion offers a potential loophole. A person can be anti-abortion because affirmatively killing the embryo or fetus strikes the person as wrong. But in medication abortion all we are doing is removing the embryo or fetus from inside the woman because the woman does not want to be a respirator, a dialysis machine, and a source of calcium and other nutrients all rolled up into one. Neither medication kills the embryo. Each simply moves it from inside the woman who does not want it there to outside of her body. She does not wish to aid the embryo. Because the embryo is not viable, death is a collateral consequence of removal.

Now it is quite possible and even likely that the person getting a medication abortion intends for the embryo to die. Its death is part of why she is having an abortion. Under my approach to DDE, however, we do not care what her true intention is. We simply ask whether her actions could be understood as aimed at a legitimate purpose whose benefits are sufficient to justify the harmful impact (here, the death of the embryo). One could have a medication abortion because one refuses the extremely invasive, burdensome, and risky experience of pregnancy and birth. One could do so without specifically wanting the embryo to die. The situation is accordingly a double effect circumstance. Death is a side effect of removal.

Some might say that gestation is not sufficiently burdensome to justify removing the embryo and the pregnancy at the cost of the embryo’s dying. Such people may be ignorant of what it feels like to be a person who does not want to have her body taken over in the way that gestation takes over a woman’s body but who must be a respirator, etc. because someone or something is forcing her to. I know of people who consider themselves pro-life who have acknowledged privately that if all the woman does is to induce labor (which is effectively all that a medication abortion does), then it seems that she is choosing not to kill the embryo or fetus but simply not to keep it inside her body. We all presumably have the right to consent or not consent to being physically occupied by a foreign body, even the body of our own embryo.

New Windows

Medication abortion thus opens some new windows on a very old problem. Terminating a pregnancy—finally—can truly be private so that unwanted third parties have no access to the pregnant woman. It can be less expensive than surgical abortions so that poorer women can afford it. And finally, it can be morally defensible even for those whose religious beliefs tell them that embryos are people but distinguish between killing someone and refusing aid in the form of serving as a 40-week life support machine. If you believe you have the right not to donate blood or a kidney or even your dead body once your life ends, then it seems that medical abortions ought to calm your objections to women who choose not to grow a baby from raw materials inside their wombs.

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