III. RELIGIOUS TRADITIONS: A. JEWISH PERSPECTIVES

The Jewish discussion of abortion is a multi-vocal one that crosses several centuries of text and tradition. However, for a tradition in which much is in contention, the legal and ethical norms surrounding abortion are relatively less.... View more

III. RELIGIOUS TRADITIONS: A. JEWISH PERSPECTIVES

The Jewish discussion of abortion is a multi-vocal one that crosses several centuries of text and tradition. However, for a tradition in which much is in contention, the legal and ethical norms surrounding abortion are relatively less controversial. The tradition, in general, takes a clear middle path—allowing some abortions, in certain circumstances, for specific rational moral appeals. For Jews who are not close followers of Talmudic law, the cultural and economic realities of modernity affect religious practice, social justice and ethical norms, but these norms themselves have been shaped by this largely permissive tradition. In Jewish ethics, one considers both the whole of human activity and the whole of the community as well: Women as well as men are moral agents. This argument is primarily contained in the extensive debate and exegesis of the rabbinic literature, a discourse of contention and casuistic narrative ethics that both determines and discusses the 613 commanded acts named as the mitzvot by the Rabbis of the Talmudic period (200 B.C.E.–500 C.E.)

Jewish law has developed, in the 1,500 years since the redaction of the Talmud, by an ongoing series of responsa to questions about the legal code discussed in the Talmud, called halacha. Difficult cases of social crisis of all types are brought before arbiters and scholars who rule on the facts of the cases, on the methodological principles of logical argument, and on certain key principles of relationships in familial, ritual, civic, and commercial spheres. Each commentator is intellectually tied to those who came previously, and is confronted by changes in context: politics, cultural shifts, and scientific understandings that were not available to previous generations. Nowhere is this more evident than in the rapidly changing field of reproductive health.

Nearly all commentators would agree that it is clear that the concerns of the tradition are specific and protective of four principles:

to assure that women are not required to have children, since childbirth was seen in the Talmudic period as potentially life-threatening; to assure that the temptation to immerse oneself in a life of study is avoided and that every man is married and in a family with children; that sexuality after reproduction of two children—the required number—could be enjoyed without reproductive consequence; and to allow both women and men to pursue, within limits, options for family planning based on a complex assessment of personal needs and social context.

The discursive method of Jewish ethical reasoning follows from close analysis of key texts—but it is never a history of unanimity—rather, it is a centuries-long argument with sharply disagreeing authorities making definitive and, in some cases, contradictory statements. A review of the development of the internal argument of the classic texts illustrates both the mutability of the tradition and the argumentative nature of the normative debate.

Abortion as such does not appear as an option for women in the Biblical text. There is only one direct reference to the interruption of a pregnancy, and it is a sort of collateral damage: when a woman is hurt as she stands near a fight.

And if men strive, and hurt a woman with child, so that her fruit depart and yet no harm follows, he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. But if any harm follows, you shall give life for life.… (Exodus 21:22–23)

The Biblical text assumes the following conditions:

that the event described—an induced abortion—is an accidental occurrence;that it is not in woman's control, that the being lost is of value since it is, perhaps, the property of the husband;that the being that is departed is not a life in the way that the woman is a human life;that a crime of some sort has been committed, but that it is not a capital crime.

What is at stake is whether the woman herself is hurt—the child's loss is explicitly not the loss of a life.

Later texts then address the question of when an abortion is sought. Is this permitted without direct mention in the Biblical scripture? The response is found in the earliest sources of the Mishneh. Clearly seen as an emergency option, it was nevertheless clearly available under several circumstances.

Two later commentaries interpret the Bible text, and they do so with different types of arguments that allow abortion in some circumstances. The first argument follows the general line of thinking that the fetus is in some ways a danger to the woman, and can be aborted because of the more general rule of self defense: This becomes articulated as the argument called the Rodef (pursuer). This is evident in the following proof text:

If a woman suffer hard labor in travail, the child must be cut up in her womb and brought out piecemeal, for her life takes precedence over its life; if its greater part has [already] come forth, it must not be touched, for the [claim of one] life can not supersede [that of another] life. (Mishneh 6)

Here the text assumes three things: Abortion is deliberate; the decision to abort is a conjoint one and somewhat in woman's hands (she is the sufferer, so it is her suffering that calls the question, and it must have something to do with her stated limits); and that all can agree that a child is in her womb, but not a child who counts as a nefesh (fully ensouled human person) until its head is out.

This first argument is further developed centuries later, by Maimonides:

This, too, is a mitzvah: not to take pity on the life of a pursuer (Rodef). Therefore the Sages have ruled that when a woman has difficulty in giving birth one may cut up the child within her womb, either by drugs or by surgery, because he is like a pursuer seeking to kill her. Once his head has emerged he may not be touched for we do not set aside one life for another; this is the natural course of the world. (Maimonides 1:9)

Maimonides assumes three things: that the fetus is in fact a nefesh; that it is a pursuing nefesh (Rodef); and that a life must be at stake to allow the killing of the Rodef. The reason for the opinion of Maimonides here, namely, that the fetus is like a pursuer pursuing the mother in order to kill her, is that he believed that a fetus falls into the general law of pikuah nefesh (avoiding hazard to life) in the Torah since a fetus, too, is considered a nefesh and is not put aside for the life of others (Hiddushei Rabbi Hayyim Soloveitchik to Mishneh Torah, Hilkhot Rotze'ah 1:9). Ben Zion Uziel, in the early modern period, then extended this argument to include not just the mother's life, but her health.

We learn in this matter that according to the doctors, the fetus will cause its mother deafness for the rest of her life, and there is no greater disgrace than that, for it will ruin the rest of her life, make her miserable all her … Therefore, it is my humble opinion that she should be permitted to abort her fetus through highly qualified doctors who will guarantee ahead of time that her life will be preserved.… (Ben Zion Uziel, Mishpetei Uziel, Hoshen Mishpat 3:46)

Finally, Rabbi Eliezer Waldenberg in the mid-twentieth century interprets the text to include protection of not just physical health, but mental health, allowing abortions in the case of a diagnosis of Tay Sachs in the child:

One should permit … abortion as soon as it becomes evident without doubt from the test that, indeed, such a baby [Tay-Sachs baby] shall be born, even until the seventh month of her pregnancy … If, indeed, we may permit an abortion according to the Halacha because of great need and because of pain and suffering, it seems that this is the classic case for such permission. And it is irrelevant in what way the pain and suffering is expressed, whether it is physical or psychological. Indeed, psychological suffering is in many ways much greater than the suffering of the flesh. (Eliezer Waldenberg, Responsa Tzitz Eliezer, Part 13, no. 102)

A second line of argument is largely based on developmental moral status, a principle that gains ground via rabbinical medical science. All discharges from the body present a problem to be adjudicated by the rabbis, since persons with discharges need to participate in purification rituals before they can rejoin the larger community. Since examination of the contents of the womb after a miscarriage for the first forty days after conception did not seem to show a fetus, the rabbinic authorities deemed that during this period, the fetus had the status of mere water. Abortions during this period, went the reasoning, then could not be opposed.

A third line of justification develops in entirely another tractate of the Mishneh (Arakin) that abortion is permitted as a health procedure since a fetus is not an ensouled person. Not only are the first forty days of conception considered like water but even in the last trimester, the fetus has an lesser moral status—more akin to a part of a woman's body, than like a separate being.

Gemara: But that is self-evident, for it is her body! It is necessary to teach it, for one might have assumed since Scripture says "according as the woman's husband shall lay upon him" that it [the woman's child] is the husband's property, of which he should not be deprived. Therefore, we are informed [that it is not so].… (Exodus)

This proof text is the introduction of an argument that the fetus is simply not a nefesh and therefore, is seen as a part of a women's body. A later authority, Rashi, assumes this is valid because the fetus is not a separate being until the head is born.

This argument continues in later responsa and it is clear that, even after birth, whether the child is fully independent, with it own, separate being and body, is still an issue: For some, the status of the infant remains uncertain for thirty days.

Because when a child dies within thirty days (being then considered a stillborn and not mourned like a person who had died) it becomes evident only in retrospect that it was a stillborn (nefel) and that the period of its life was only a continuation of the vitality of its mother that remained in him. (Ben Zion Uziel 3:46)

In the post-Holocaust period, a new and contradictory tradition is developing as some commentators have voiced concern that an overly liberal abortion practice is inappropriate in the face of declining numbers of Jews, and urge a more strongly pro-natalist stand. As Moshe Tendler and Elliot Dorff argue, Jews are "a people are in deep demo-graphic trouble. We lost one-third of our numbers during the Holocaust … the current Jewish reproductive rate among American Jews is between 1.6 and 1.7.… This social imperative has made propagation arguably the most important mitzvah of our time." While this position does not come from classic halachic sources, it has nevertheless, gained some ground in the contemporary period.

Religion for Jews is not a set of external institutional events visited on occasions of crisis or celebration—religion is a binding to a commanded life, in which every single daily act of practice and attention is a part of the being of the faithful person. It is the totality of life that Jewish belief is after—the inescapable call of the stranger, the constancy of the demand for justice in every interaction, and the mattering of minute details of daily life. The commanded life is a matrix of competing and complementary and contentious strands. There is both a temporal aspect to the matrix, in that interpretations are the result of more than 2,000 years of discourse, and an analytic aspect in that any act can be judged in a variety of ways. An act can be prohibited but unpunished, prohibited and punished, permitted but not approved of, permitted and accepted, obligatory but with many exceptions, or obligatory in all cases. Hence, much of our understanding about abortion comes not from these texts that describe variations and exceptions, but from the far broader range of normative texts that support a pronatalist family life.

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II. CONTEMPORARY ETHICAL AND LEGAL ASPECTS: B. LEGAL AND REGULATORY ISSUES

Most contemporary legal systems regulate the practice of induced abortion. Governments around the world regulate whether, when, why, and how the estimated 46 million annual abortions occur. In some countries,.... View more

II. CONTEMPORARY ETHICAL AND LEGAL ASPECTS: B. LEGAL AND REGULATORY ISSUES

Most contemporary legal systems regulate the practice of induced abortion. Governments around the world regulate whether, when, why, and how the estimated 46 million annual abortions occur. In some countries, abortion is governed primarily by national laws; in others, abortion is governed mainly by state or regional laws. Belief that abortion is unsafe, irreligious, immoral, unjust, or genocidal has tended to push regulation in the direction of laws that expressly prohibit some or all abortions. Convictions that abortion can alleviate overpopulation, avert economic hardship, protect women's health, promote sex equality, or eliminate undesirable progeny have tended to produce laws that permit, guarantee, or even compel abortion. More than 75 percent of the world's population live in countries in which abortion is legal, even when the life of pregnant woman is not at stake (Center for Reproductive Law and Policy).

An international survey of existing law reveals four basic patterns or models of express abortion regulation:

a model of prohibition; a model of permission; a model of prescription; and a model of privacy.

Under the model of prohibition, the laws of a jurisdiction punish most or all abortions as criminal offenses, as in Ireland, Nigeria, Brazil, and Indonesia. In these countries, abortions are banned other than to save the life of the mother. Under the model of permission, laws permit abortions that meet criteria and conditions established by government, as in Sweden, Germany, England, India, and Zambia. For example, in Sweden abortions are readily available, subject to the approval of a National Health Board. In Germany, women face counseling and waiting period requirements for otherwise permitted early abortions. In the United Kingdom excluding Ireland, abortion for health and disability reasons is lawful up to 24 weeks, but a woman must obtain the approval of two physicians. Under the model of prescription, laws specifically require or encourage the termination of pregnancies falling into certain specific categories, as in The People's Republic of China. Finally, under the model of privacy, laws restrain government from enactments that criminalize or severely restrict access to medically safe abortions, as in the United States and Canada. The model of privacy treats abortion decisions as substantially a matter of private choice rather than public law. In some countries using models of permission, prescription, and privacy, including the United States, China, France, the Russian Federation, and South Africa, women are not required by law to provide officials or physicians with a state-approved reason for routine legal abortions (Center for Reproductive Law and Policy). In Russia, whose per capita abortion rate was second in the world after Romania's in 2002, 60 percent of all pregnancies end in abortion.

Abortion law is subject to change from one era to the next. Countries under the sway of the model of prohibition in one generation have moved toward the models of permission or privacy in subsequent generations. For example, when the Supreme Court of the United States declared in Roe v. Wade (1973) that the nation's constitution bars statutes categorically criminalizing all abortions, it announced a national standard for state and federal law that ushered out the model of prohibition and ushered in the model of privacy. Abortion law can also change from liberal to restrictive and back again, in response to political developments and judicial interpretations of constitutional principle. Thus, Poland adopted more restrictive abortion laws after democratic elections in 1989; greatly liberalized its law in 1996; and then, in response to an adverse constitutional court ruling overturning the permissive 1996 law, quickly revised its law in 1997. Under a 1997 act of Parliament, Poland permits abortion to protect the pregnant woman's life or health, or to terminate pregnancies resulting from criminal acts or in cases of fetal abnormality.

The Model of Prohibition

The model of prohibition governs official abortion policy in many African, Latin American, South Asian, and Middle Eastern countries. For example, Brazil and Sri Lanka permit abortion only to save the life of the woman. Most jurisdictions in Europe and North America reject the model of prohibition, permitting abortion on request, where pregnancy results from rape or incest, or where the continuation of pregnancy threatens the physical, mental or social wellbeing of the woman or her fetus. Ireland, a largely Roman Catholic nation, is one of the few European countries whose laws continued to criminalize abortions either absolutely or subject to a strictly limited number of exceptions beyond the 1970s. Under a 1983 amendment to the Irish constitution, Irish law permits abortion only to save the life of the woman. Overturning a ruling that a teenage rape victim who credibly threatened suicide could not travel to England for an abortion, the Irish Supreme Court found in 1992 that abortion would be permissible "if it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother, which can only be avoided by the termination of her pregnancy."

Jurisdictions whose laws reflect the model of prohibition often assert a strong religious or humanitarian policy interest in protecting what are thought to be the rights and interests of unborn children. However, other objectives have also prompted strict abortion prohibition. For example, during the nineteenth and twentieth centuries, abortion opponents in the United States cited the need to protect pregnant women from the medical and psychological risks of abortion. There can be no doubt that unskilled, unsanitary abortion procedures are a health risk, and that some women who obtain abortion services experience medical complications and emotional anguish. However, some lawyers and judges doubt that medical abortion performed during the first three months of pregnancy is less safe than pregnancy and childbirth (Tribe; Rhode). They similarly doubt that elective medical abortion poses a serious risk of psychological harm. Although one writer has concluded that "every woman pays a psychological price for abortion" (Reardon, p.141), the American Psychological Association has concluded that serious emotional problems rarely result from abortion.

Countries whose populations have been ravaged by war and genocide have sometimes proscribed abortion in an effort to increase the birth rate. Strict abortion prohibition has had the additional, if only implicit, goal of reinforcing social roles. The cultural assumption that motherhood is the appropriate social role for women buttressed Joseph Stalin's 1936 abortion prohibitions, enacted to furnish the former Soviet Union with "a new group of heroes" (Sachdev). The belief that bearing children is women's natural destiny may lead some to assume that birth control and abortion are both immoral and unhealthful. After 1933, Adolf Hitler prohibited contraception and declared abortion a capital offense on the belief that birth control was unhealthful. On the other hand, abortion prohibitions adopted in Germany in 1943 aimed at the "vitality of the German people" and excluded from criminality abortions performed on "racially" undesirable women (Sachdev).

The reach of laws prohibiting abortion can be broad. Obtaining an abortion has been subject to criminal penalty in some instances, and so too has distributing abortion information. Provisions of the famous Comstock Law enacted by the Congress of the United States in 1873—later rescinded—outlawed abortion-related implements and information as "obscene" and "immoral" (Garrow; Rhode). Offenders of the Comstock Law faced imprisonment with hard labor and monetary fines. Jurisdictions prohibiting abortion generally aim at the conduct of third-party abortion providers. However, some abortion statutes also criminalize pregnant women's own conduct, making it a punishable offense to obtain or seek abortions from third parties. Legal systems rarely punish medical abortion as the full equivalent of felonious unjustified murder.

Criminalizing non-surgical and self-induced abortion poses special problems of detection and law enforcement. Pharmaceuticals approved for other purposes, like the cancer drug methotrexate, can be used to induce abortion. Self-induced abortion has often involved risky procedures, such as inserting knitting needles, wire coat hangers, or other foreign objects through the cervix. Many self-induced abortions are detected because they end tragically in medical and police emergencies. In 1989, a healthcare group in California promulgated a videotape demonstrating "menstrual extraction," a nonmedical abortion technique trainers say women can learn to perform safely at home with the help of a friend. To the extent that they are workable, abortion procedures that can be performed without professional assistance fall beyond the practical reach of law.

Prohibitive abortion law requires lawmakers to define what counts as abortion, and therefore what is subject to criminal penalties. The surgical and medical procedures generally in use by physicians in licensed hospitals and clinics in Europe and the United States plainly qualify as abortion. However, certain forms of birth control not viewed as abortion could conceivably fall under the scope of strict abortion prohibitions. Popularly viewed as a form of contraception, the intrauterine device (IUD) may function as a kind of abortifacient, blocking implantation of a fertilized egg, rather than preventing ovulation or fertilization. Étienne-Émile Baulieu's drug, RU-486, named for its French manufacturer, Roussel Uclaf, poses a related difficulty of definition. Described by French Minister of Health Claude Levin as "the moral property of women, not just the property of the drug company," RU-486 (mifepristone) arrived on the European scene in the 1980s and in the United States in 2000. Unlike pharmaceutical contraceptives that prevent fertilization or ovulation, RU-486 acts to block the successful implantation of a fertilized egg. Rejecting the popular "abortion pill" label, Baulieu has suggested that RU-486 is neither contraception nor abortion but something new—"contragestation." Still, it seems unlikely that a jurisdiction that strictly prohibits abortion would view "contragestation" as anything other than early abortion.

Abortion flourishes under regimes of prohibitive abortion law (Sachdev). In fact, about half of the estimated 46 million abortions that take place each year are illegal in the jurisdictions in which they occur. The criminal code of Bangladesh strictly prohibits most abortions, but physicians commonly induce abortion by performing a uterine evacuation procedure known as "menstrual regulation" on women who are many weeks pregnant. Prohibitive abortion laws commonly fall short of their stated goals and public expectations because governments are unwilling or unable to enforce the letter of the law. The prohibitive laws that governed abortion in the United States prior to Roe v. Wade were enacted to preserve unborn life and women's physical and mental health (Garrow). It has been argued that the aim of fetal preservation was at least partly undermined by the large number of clandestine abortions performed, notwithstanding prohibitive laws (Tribe). Although most abortions were illegal in much of the United States prior to 1973, American women obtained an estimated 200,000 to 1.2 million abortions each year in the 1960s and early 1970s (Tietze, Forrest, and Henshaw), compared to about 1.5 million each year throughout the 1980s and early 1990s, and 1.3 million in 1997. David Reardon puts the number of abortions pre-Roe at merely 100,000 to 200,000 per year. The aim of preserving women's health may have been frustrated under the regime of prohibition because clandestine abortions were commonplace but were not always performed by skilled practitioners in hygienic settings. This was especially true of the illegal abortions obtained by African-American women, who accounted for a disproportionate number of the victims of illegal procedures. (Twenty percent of the deaths related to pregnancy and childbirth in the United States in 1965 were attributed to illegal abortions.) Legalization of abortion probably resulted in a small-to-moderate increase in the number of abortions, but it appears to have greatly decreased the incidence of abortionrelated infertility and death.

Model of Permission

The model of permission became the pervasive one around the world in the final quarter of the twentieth century. Under the model of permission, abortion is legally available, but only with the approval of government officials or officially-designated decision makers, such as administrative boards, committees, physicians, or judges. In some permission-model jurisdictions, officials grant permission pro forma in nearly every case. In Norway, prior to 1975 reforms that liberalized abortion, as many as 94 percent of the requests for abortions made to Abortion Boards were routinely granted (Olsnes). Official decision makers in permissive jurisdictions rely upon a handful of factors to determine which abortions to permit and which abortions to prohibit (Petersen; Glendon).

The stage of pregnancy is very frequently a factor. Officials called upon to implement legal norms or exercise discretion often permit "early" abortions and prohibit "late" ones. This no doubt helps to explain the statistic that 90 percent of reported abortions take place within the first three months of pregnancy. Another factor decision makers commonly consider is the woman's medical or social status. Restrictive laws require that officials deny permission to abort for reasons other than medical hardship. Liberal laws often require that officials allow abortions because pregnancy or childbirth would involve social or economic hardship for the woman. In many jurisdictions, grounds for social hardship include rape, incest, or the age and marital status of the woman. The health or condition of the fetus can be a third factor in permitting or prohibiting abortion. The law may premise access to abortion on evidence that a child would be born with serious physical or mental abnormalities.

Genetic testing for the purpose of enabling parents to abort fetuses born with undesirable traits is already practiced in the United States. Healthcare providers in some states even face "wrongful life" and "wrongful birth" lawsuits for negligent failure to offer women information needed to prevent or abort an unwanted pregnancy. With advances in prenatal testing that enable detection of the sex of a fetus, it is possible for a pregnant woman to abort selectively unwanted male or female offspring. In some instances, abortion for sex selection may be tied to a desire to avoid giving birth to a child with a gender-related genetic disease. Jurisdictions that permit abortion without regard to reason presumably permit abortion for sex selection.

For most of the twentieth century, a number of countries governed abortion under highly bureaucratic versions of the model of permission (Sachdev). For a time in the eastern European countries of Hungary, Romania, Poland, and Bulgaria, abortion was lawful only if approved by a state board or committee. These countries reportedly permitted abortion in almost every case through the fourth month of pregnancy. Romania reverted to a prohibitive policy in 1966 in response to concerns about underpopulation and the health effects of multiple abortions. It prohibited most contraception and abortion for women who did not have at least four, and eventually five, children. Abortion prohibition was accompanied by a significant incidence of mortality related to illegal abortion. In the mid-1980s, 86 percent of the women in Romania who died as a consequence of pregnancy or childbirth died as a result of illegal abortions, compared with, for example, 29 percent in the former Soviet Union and 13 percent in Sri Lanka.

Other historical instances of the bureaucratic model of permission are the laws and administrative regulations in force in Denmark from 1939 to 1973, and in Sweden from 1939 to 1974. In Denmark, local and national committees consisting of teams of social workers, physicians, and psychiatrists evaluated the applications of women seeking legal abortions. Scandinavian officials on boards or committees charged with decision making typically assessed the impact of childbirth and child care on the mental or physical health of the woman, and the woman's living conditions. Israeli Ministry of Health regulations enacted in 1978 permitted hospitals and clinics to form committees consisting of two physicians and a social worker to decide whether to grant women's abortion requests. Although living conditions, such as other children and economic hardship, were initially an authorized basis for granting abortion requests, Israel amended the law in 1980 under pressure from religious groups and in response to concerns about a declining population rate.

At the beginning of the twenty-first century, a number of countries in Asia, South America, Europe, and North America make a woman's obtaining an abortion dependent upon the approval of one or more physicians, a judge, or one or both parents. Great Britain and countries whose abortion law was modeled on Great Britain's—Hong Kong, Zambia, and Australia—are examples of countries whose laws place decision making in the hands of physicians. The law of Great Britain was transformed over a great many centuries from a model of prohibition, to a model of permission, and even a model of privacy. Early English common law embodied the model of prohibition, at least for abortions taking place after the first few months of pregnancy. The common law proscribed abortion after quickening, about the fourth month of pregnancy, when fetal animation or ensoulment was deemed to have taken place. In 1861 the statutory abortion law of Great Britain defined as a felony any act intended to cause abortion, whether induced by the woman herself, if she were pregnant, or by others, whether or not she was in fact pregnant. The Abortion Act of 1967 abolished the nineteenth-century felony. The act's liberal provisions permit an abortion where any two medical practitioners certify in good faith that pregnancy "would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated." Under this rule, qualifying for abortion poses no practical difficulty for women with the money to pay private physicians. As English law illustrates, the model of permission can have the distinct effect of empowering the medical and psychiatric professions to govern reproduction in accordance with their profession's internal standards of judgment.

Abortion is common in Australia, where abortion rights vary significantly from state to state and are governed both by common law and criminal statute. A liberalizing trend has been observed since the mid-1990s, when only South Australia and the Northern Territory had statutes specifically permitting some abortions. In 1998 controversy erupted over Australian abortion law, when two physicians were arrested in Western Australia for violating a moribund nineteenth-century criminal statute. The doctors had performed a consensual abortion in 1996 on a Maori woman who stored the aborted fetus in her refrigerator, planning to take it to New Zealand for burial in accordance with Maori traditions. Following reforms, early abortion is available virtually on demand in some Australian states, and is subject to enforced restrictions in others.

In India, the Medical Termination Pregnancy law enacted in 1971 permitted abortions that one or, if the woman is more than twelve weeks pregnant, two physicians certify. Grounds for certification are liberal. Abortion may be obtained to preclude a risk to the pregnant woman's mental or physical health, or a risk of the birth of a child with serious mental or physical abnormalities. No abortions after twenty weeks are legal under the law. A woman's mental health is considered at risk in cases of economic hardship and where pregnancy resulted from failed contraception. The 1975 Abortion and Sterilization Act made many abortions lawful in the Republic of South Africa, on the certification of two physicians that statutory requirements are met. The law required that where abortion was sought on grounds of risk to mental health, one of two certifying physicians be a psychiatrist willing to attest to danger of permanent mental harm. South Africa has subsequently liberalized its abortion law, making early abortion available on demand.

French law permits women to make their own judgments (early in pregnancy) about whether they are entitled to abortion on grounds of hardship. In this respect, French law resembles the federal law of the United States under Roev. Wade. French regulations enacted in 1975 are representative of international responses to the judicial transformation of United States law with Roe v. Wade in 1973. Reflecting the aspirations of both the model of permission and the model of privacy, the French enactment begins with a declaration that the law guarantees respect for every human being from the beginning of life, and that this principle is to be sacrificed only in case of necessity and according to specific conditions. But the law authorizes any woman who is ten weeks pregnant or less to request a physician for an abortion if she believes pregnancy or childbirth will create hardship. Moreover, at any stage of pregnancy, right up to the moment of birth, abortion is lawful if two physicians, one of them from an official list, certify that continuation of pregnancy would put the woman's health gravely in peril, or that there is a strong possibility that the child would suffer from an incurable condition.

The French abortion law imposes numerous conditions on all abortions. Attending physicians must inform women of the medical risks of abortion and give them an official guide to the forms of assistance available to families, mothers, and children, and to relevant social service organizations. Women then must consult one of the listed social services. Women wishing to proceed with abortion must confirm their request in writing, after a one-week waiting period. Abortions must be performed by physicians in a public or recognized private hospital and must be reported to the regional health authorities. Hospitals must provide women who have obtained abortions with birth control information.

The model of privacy may best describe the overall aspiration of Roe v. Wade. However, the model of permission is arguably more descriptive of United States abortion law pertaining to unemancipated minors. The Supreme Court has taken the position that minors have a constitutional right to privacy and may terminate their pregnancies without parental consent, but that minors may not object on constitutional grounds to parental notification requirements and waiting periods. Individual justices on the Court have argued that requiring pregnant minors to notify family members of pregnancy and abortion, in effect, gives veto powers to third parties in a way that is inconsistent with the spirit of Roe v. Wade. Yet, a majority held in Hodgson v. Minnesota (1990) that states providing a "judicial by-pass procedure" may attempt to involve one or both parents in minors' abortion decision making by requiring minors or their physicians to contact parents in advance of abortion. In judicial bypass procedures, minors must be permitted to ask a judge to waive parental notification requirements. The judge is expected to waive the requirement if he or she determines that the minor is mature or that notification is not in the minor's best interests. Justices in the minority have objected that bypass procedures are unwarranted, since most minors notify parents or other responsible adults of pregnancy and abortion, and most minors seeking judicial waiver obtain it. In addition, the practical effect of mandatory notification is that some teens will delay abortion, increasing costs and medical risks. Some justices have argued that laws requiring parental involvement place minors with abusive parents or broken homes at a disadvantage and even at mortal risk.

Model of Prescription

Under the models of permission and privacy, a government permits some or all of the abortions women want. Under the model of prescription, a government compels or virtually compels women to obtain abortions the government wants. Far-reaching compulsory abortion laws have been rare in the modern world. In the West, policymakers frown upon official and unofficial policies of mandatory abortion for poor and mentally incompetent women. Although healthcare providers reportedly recommend abortion in some instances—for example, when a pregnant woman is addicted to cocaine or infected with the AIDS virus—the United States government does not officially recommend or mandate abortion for any class of pregnancy. Under a penal code adopted in 1979, Cuban law proscribes abortion performed without the permission of the woman.

In an effort to control overpopulation and protect its economy, China began adopting "planned birth" family-planning measures in 1953. These measures aggressively encourage abortion through a system of penalties and rewards. Under the Chinese constitution, both the government and individuals are responsible for the planned-birth policy. In 1974, couples were limited to two children. Since 1979 couples wishing to bear children have been authorized to have only one child, and then only after securing a government permit. To encourage compliance, abortion is offered at no cost and may entitle the woman to a two-week paid leave of absence; women who have an IUD inserted or a tubal ligation along with abortion may receive additional paid leave. The effect of the planned-birth policy on the abortion rate in China is not known in the West. However, female infanticide and abortion for sex selection are reported. Chinese families have reportedly resorted to infanticide and selective abortion to ensure that their one-child quota is filled by a child of the culturally preferred male sex.

Model of Privacy

Under the model of privacy, the law rarely compels abortion and permits all or virtually all abortions, as long as they are performed by medically qualified persons in clinics, hospitals, or other qualified facilities. Safety is a frequent goal of legal systems characterized by the model of privacy, although safety is not necessarily suggested by "privacy" nomenclature. The former Soviet Union adopted the model of privacy on safety and privacy grounds in 1920, more than a half century before the model came to dominate under-standings of U.S. law. The goal of the Soviet decree legalizing any abortion performed by a physician in a state hospital was both to keep women safe from unskilled abortionists and to secure women's freedom and equality in work, education, and marriage. In 1936, the decree was rescinded in favor of a law prohibiting abortion other than to spare the life or health of the woman or prevent transmission of an inheritable disease. The shift back to the models of prohibition and permission seems to have been motivated by concern about declining birthrates, health effects of medical abortions, and diminished regard for marriage and childbearing. But in 1955, the Soviet law moved back toward the model of privacy, again to protect women from unskilled abortionists and to give women themselves an opportunity to decide whether to become mothers (Sachdev).

In Japan, abortion has been legal since the government passed Eugenic Protection Laws in 1948 to protect women's health and deter the birth of what were considered undesirable offspring. In practice, abortion is available to women in Japan upon request. The law does limit abortion, but the limitations are extremely liberal: Abortion is permitted when performed by designated physicians to avert mental and physical disease or abnormalities; when pregnancy results from violence; or when the woman's health would be impaired for physical or economic reasons. Functionally, one can view Japan as a model of privacy jurisdiction; yet women's autonomy and equality are not the express policy objectives of its liberal abortion law. Japan follows the model of permission insofar as laws restrict abortion and have not been designed specifically to promote autonomous, private decision making. For nearly thirty years after they had been approved for use in North America and Europe, low-dose birth control pills were banned in Japan out of concerns about safety. The end of the ban in 1999 could mean that abortion will no longer function as a major form of birth control in Japan.

In the United States, abortion policy since the early 1970s has been directed to women's rights. During the early 1970s, the United States and a number of other countries adopted laws approximating the model of privacy. The theory that during the first trimester abortion ought to be available without any restrictions gained popularity. In effect, this approach was adopted in the former East Germany in 1972, Denmark in 1973, Sweden in 1974, France in 1975, and Norway in 1978 (Sachdev; Olsnes). "Fetal viability," the point at which, in some of these countries, the interests of the woman cease to be accorded overriding weight, is variously fixed between twenty weeks and twenty-eight weeks. In Norway, under 1978 amendments to a 1975 law, a woman "shall herself make the final decision concerning termination of pregnancy provided that it is possible to perform the operation before the twelfth week of pregnancy has elapsed." After the twelfth week, abortion sought for a number of medical or social indications is available upon successful application to an "Abortion Board" (Olsnes).

In Morgentaler et al. v. The Queen (1988), the Supreme Court of Canada found by a margin of five to two that provisions of the Criminal Code infringed Section 7 of the Canadian Charter of Rights and Freedoms promising "life, liberty and security of the person." The Canadian justices argued that "personal security," and with it "bodily integrity," "human dignity," and "self-respect," were threatened by interference with reproductive choices (Morton). The Canadian legislature remains free to regulate abortion consistent with the Morgentaler decision. However, in 1990 a bill to restrict abortion access to women whose physicians certified a health-related need for the procedure failed. The government thereafter announced that it would not seek new abortion legislation.

In Canada, the United States, and other privacy-model jurisdictions, liberal abortion law permits autonomous choices about matters that profoundly affect women's bodies, lifestyles, and equality. However, it is generally recognized that laws that decriminalize and deregulate abortion do not guarantee that every woman who desires an abortion will get one. Abortion is costly, and may or may not be covered by the health insurance of women who have insurance. The U.S. Supreme Court has repeatedly held that state and federal governments may encourage childbirth over abortion by refusing to include abortion among Medicaid and other entitlements awarded the poor. As a consequence, public funding for abortion is not available as a matter of right; publicly funded civilian and military hospitals are not required to perform abortion services; and states may prohibit physicians employed by public hospitals from performing abortions.

Focus: The United States

The Constitution of the United States does not mention "abortion" by name. However, the Supreme Court has consistently held since Roe v. Wade (1973) and Doe v. Bolton (1973) that the due process clause of the Fourteenth Amendment guarantees American women a fundamental right to obtain medically safe abortions. States may not categorically ban abortion or unduly burden women's fundamental constitutional right to terminate pregnancy.

The state of Connecticut passed the first American legislation against abortion in 1821 (Garrow). At first, American law did not penalize early (pre-quickening) abortion. However, between 1827 and 1860, twenty states or territories passed statutes against abortion at all stages of pregnancy. By 1868, thirty-six states or territories had antiabortion statutes in place, enforcement of which was often lax. In 1965, all fifty states treated abortion and attempted abortion at all stages of pregnancy as felonies, subject to certain exceptions. In forty-six states and the District of Columbia, the relevant statutes explicitly permitted abortion to save the mother's life, while in two of the other four states a similar exception was recognized by the courts.

Between 1967 and early 1973, a dozen jurisdictions in the United States adopted somewhat permissive abortion laws patterned on the model legislation suggested in 1962 by the influential American Law Institute. These laws permitted abortion when performed by a licensed physician who determined that there was a substantial risk that pregnancy would seriously injure the physical or mental health of the mother; that the child would be born with grave physical or mental defect; or that the pregnancy resulted from rape or incest. Almost all of the other reforming jurisdictions nevertheless sought to strengthen the institutionalization of abortion practice by stipulating that an abortion would be lawful only if performed in an accredited hospital after approval by a committee established in the hospital for that purpose.

The decriminalization of abortion on the national level lagged behind the decriminalization of contraception. In 1965 the Supreme Court decided Griswold v. Connecticut, holding that states may not outlaw a married woman's use of birth control. The Court based its ruling on an unenumerated constitutional "right to privacy" implicit in the Bill of Rights and the Fourteenth Amendment. This same right to privacy was invoked in 1973 in Roe v. Wade to limit government interference with abortion. The right to privacy was, and is, controversial among lawyers and judges reluctant to recognize novel unenumerated rights. However, both the American Medical Association and the American College of Obstetricians and Gynecologists favored legalization of abortion. The immediate effect of Roe v. Wade and Doe v. Bolton, its simultaneously decided, lesser-known companion case, was to invalidate the laws regulating abortion in every state, except perhaps the already very permissive laws adopted in 1969 and 1970 in New York, Alaska, Hawaii, and Washington.

Roe and Doe established that:

no law can restrict the right of a woman to have a physician abort her pregnancy during the first three months, or first trimester, of her pregnancy; during the second trimester, the abortion procedure may be regulated by law only to the extent that the regulation reasonably relates to the preservation and protection of maternal health; at the point at which the fetus becomes "viable," a law may prohibit abortion, but only subject to an exception permitting abortion whenever necessary to protect the woman's life or health (including any aspects of her physical or mental health); and no law may require that all abortions be performed in a hospital, or that abortions be approved by a hospital committee or by a second medical opinion, or that abortions be performed only on women resident in the state concerned.

The Court in Roe and Doe concluded that the Constitution does not accord legal personhood status to the fetus. Critics of this conclusion point out that the unborn are implicitly treated as legal persons in several other areas of the law. The unborn are taken into account in the allocation of property rights and the attribution of criminal and civil responsibility. For example, the unborn can inherit property. Negligently killing or injuring a fetus can give rise to civil liability for wrongful death, wrongful birth, battery, and other torts.

Roe made clear that women were not to be ascribed a right to exclusive control over their bodies during pregnancy. Yet the case signaled that the Constitution limits the role government may play in abortion decisions. In the first decade and a half after Roe, the Court struck down numerous state abortion restrictions. States unsuccessfully attempted to control abortion through advertising restrictions; zoning restrictions; record-keeping and reporting requirements; elaborate "informed consent" and physician-counseling requirements; mandatory waiting periods; bans on abortions for sex selection; the requirement of the presence of a second physician during the abortion procedure; the requirement that physicians employ methods of abortion calculated to save the lives of viable fetuses; the oversight requirement that physicians send all tissue removed during an abortion to a laboratory for analysis by a certified pathologist; the requirement that insurance companies offer at a lower cost insurance that does not cover most elective abortion; legislating a statewide information campaign to communicate an official state policy against abortion; legislating criminal sanctions for physicians who knowingly abort viable fetuses; and requirements that some or all abortions after the first trimester be performed in a hospital. However, the Supreme Court has repeatedly validated state and federal government policies that prefer childbirth to abortion by declining to pay for the abortions of poor women entitled to welfare benefits for prenatal care and childbirth (Solinger).

A major reaffirmation of Roe, Thornburgh v. American College of Obstetricians and Gynecologists (1986), held that states were not permitted to indirectly prohibit abortion by encumbering the decision to seek abortion with unnecessary regulations. A series of highly publicized Court decisions handed down since 1989 appear to permit more extensive regulation of first- and second-trimester abortions than Roe and Doe seemed to contemplate. Webster v. Reproductive Services (1989) permitted legislation requiring viability testing and limits on publicly funded physician care. The Court declined in Webster to decide the constitutionality of the declaration in the preamble of a Missouri statute that "[the] life of each human being begins at conception," and that "unborn children have protectable interests in life, health and well being" because the state had not yet sought to limit abortion by appeal to it. Encouraged by the Webster decision, several states and the territory of Guam sought between 1989 and 1992 to ban or discourage abortion through aggressive new regulation and enforcement. Anticipating that the Supreme Court would welcome an opportunity to overrule Roe in the 1990s, Guam enacted legislation prohibiting most abortion and its advocacy. A federal judge quickly declared Guam's law unenforceable under Roe.

In two 1990 cases critical of Roe, Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health, the Court upheld parental notification requirements for minors. Rustv. Sullivan (1991) upheld a federal "gag rule" statute, subsequently eliminated by Congress, prohibiting abortion counseling by physicians in federally supported facilities. Planned Parenthood v. Casey (1992) affirmed Roe v. Wade as the law of the land and invalidated spousal notification. However, the case upheld a twenty-four-hour waiting period as part of a state's "informed consent" procedures. Casey shed the trimester framework of Roe, opening the door to regulation at any stage of pregnancy. Casey also announced a weaker standard of review in abortion cases that promised to permit more state regulation. Under Roe, abortion statutes were to be struck down if they did not further a "compelling" state interest. Under Casey, statutes "rationally related" to a "legitimate" state interest are to be upheld, assuming they do not "unduly burden" the abortion right.

Many Americans favor some restrictions on abortion, although a 2000 Gallup poll showed more than 80 percent of Americans approved some or all abortions. A national poll conducted in 1994 by Barna Research Groups showed that 78 percent of the adults surveyed approved the legalization of some (49%) or all (29%) abortions. In a 1994 survey conducted by Yankelovich Partners, Inc., 85 percent said a woman should be able to obtain an abortion no matter what the reason (46%) or in certain circumstances (39%). A CBS News/New York Times poll conducted in 1998 found that 61 percent of those surveyed favored legal abortion in the first trimester, 15 percent favored legal abortion also in the second trimester, and 7 percent favored legality in the third trimester. The same poll showed about 45 percent of those surveyed favored more restrictions on abortion, and 22 percent favored blanket prohibition.

The weakening of the standard of review in abortion cases after the Casey decision underscores that constitutional abortion law in the United States hovers uneasily between the models of permission and privacy. For this reason, it seems likely that the Supreme Court will be asked again and again to clarify the extent to which the state and federal government may restrict abortion rights. Proposed state and federal statutes such as the Partial Birth Abortion Ban Act of 2000 and the Born Alive Infant Protection Act of 2002 would extend legal protections to viable fetuses and curb certain abortion practices. Yet in Stenberg v. Carhart (2000), the Court declared unconstitutional a Nebraska statute outlawing so-called "partial birth" abortions. The Court reasoned that the broadly drafted statute lacked a constitutionally necessary exception for abortions to save the life of the mother, and could be construed to rule out dilation and evacuation as well as the more controversial dilation and extraction or partial birth procedure.

The U.S. Food and Drug Administration approved the controversial drug RU-486 (mifepristone) in 2000. The long awaited "abortion pill" has not become the elected method of abortion for a majority of American patients and providers. Notwithstanding the limited popularity of mifepristone as an abortifacient, state and federal lawmakers who oppose its use acted quickly but unsuccessfully to propose legislation outlawing the drug or limiting the types of physicians authorized to prescribe it. Because of Roe v. Wade and possible nonabortion uses of the medication, it is unlikely that blanket legislative bans on mifepristone would be found constitutional.

As long as they stand, Roe v. Wade and Casey will serve to provide a national abortion law standard for the United States. Since Roe in 1973, several attempts have been made in both houses of the U.S. Congress to undercut the judicial decision through legislation. One attempt, premised on the idea of "states' rights," involved legislation which, if adopted, would have established that no right to an abortion is secured by the Constitution and, therefore, that the fifty states are free to adopt restrictions on abortions. A second attempt, premised on "fetal personhood," would have expanded the definition of "person" under the due process and equal protection clauses of the Fifth and Fourteenth Amendments. The fetal personhood legislation would have declared that the right to personhood attaches from the moment of conception.

Supporters of Roe in Congress have attempted to legislate the holding of Roe through a federal statute. The Freedom of Choice Act was introduced into Congress several times after Webster, beginning in November 1989. Its passage by Congress would prohibit states from enacting restrictions on the right to abortion before fetal viability. A 1994 survey conducted by the Hickman-Brown Research Company found that 56 percent of those polled "strongly" or "somewhat" favored passage of a Freedom of Choice Act, while 38 percent somewhat or strongly opposed such a law. Initiatives to amend the federal constitution to include prolife or pro-choice strictures have not advanced far beyond the drafting table. State statutes and state constitutions are an increasingly significant source of protection for abortion rights.

With In re T.W. (1989), the Florida Supreme Court invalidated that state's parental consent requirement, relying upon the state constitution. As a result of this decision, Florida recognized a fundamental abortion right independent of Roe v. Wade. A Maryland referendum endorsed by voters in 1992 similarly established state abortion rights not tied to the fate of Roe v. Wade in the Supreme Court.

The Implications of Abortion Law

The liberalization of abortion law establishes rights for women who wish to terminate their pregnancies. The full implications of those rights are unclear for

the use and disposal of fertilized eggs, embryos, and fetal remains; the enforceability of surrogate mother and surrogate gestator contracts granting third parties a legal interest in a woman's pregnancy; the criminalization of pregnant women's conduct; the tort liability of healthcare providers for wrongful birth and wrongful life; and organized protest at abortion facilities (Purdy).

One legal concern is whether women who elect to abort have a familial, proprietary, or other interest in routinely aborted embryos or fetuses. State statutes typically require that abortion providers dispose of fetal remains in the way physicians dispose of other excised tissues. Yet some effort has been made to treat abortion tissues and fetuses differently, either because of their possible commercial value for research into the treatment of diabetes, leukemia, Alzheimer's disease, and Parkinson's disease; or because of their possible value as deceased "children." In 1984 a federal judge in Louisiana held that a statute requiring abortion providers to present patients with the option of burial or cremation was an unconstitutional burden on freedom of choice. About 90 percent of all abortions performed in the United States, and in other countries, are performed during the first trimester. The court implied that women might be discouraged from first-trimester abortions on the mistaken belief that extracted tissue would resemble a baby. Another legal concern is whether aborted embryos and fetuses may be sold for research purposes. American courts and legislators are unlikely to permit outright sales of abortion tissues for research purposes. Indeed, federal agency policies adopted in the 1980s declared a moratorium on the use of abortion tissues derived from elective abortions partly out of concern that women might be encouraged to abort for gain. Signaling a change in policy, in 1993, Democratic President William Jefferson Clinton issued an executive order lifting the moratorium on fetal tissue research. President George W. Bush reversed this move, with his announcement of new federal restrictions on human embryo-derived stem cell research in 2001.

Hundreds of men and women have been parties to commercial surrogate motherhood contracts in recent decades. Commercial surrogacy agreements commonly obtain provisions in which the would-be surrogate mother or gestator undertakes that she will not obtain an abortion should she become pregnant as a result of the surrogacy transactions. In the celebrated 1988 Baby M case, MaryBeth Whitehead agreed in writing that she would "not abort the child once conceived" unless a physician determined it necessary to protect her health or "the child has been determined … to be physiologically abnormal." Although the Supreme Court of New Jersey refused to enforce the surrogacy contract in Baby M, other jurisdictions have not done so and face questions about the commercial alienability of constitutional abortion rights.

Another set of issues relates to the extent to which abortion rights may prevent government from intervening to enjoin or punish risky behavior by pregnant women who, for example, smoke cigarettes, consume alcohol, abuse drugs, and fail to heed medical advice. In a number of isolated cases in the United States, judges have jailed pregnant women they feared would abuse or neglect their fetuses. In Fergusonv. City of Charleston (2001), the United States Supreme Court struck down a program under which a hospital tested pregnant patients for illegal narcotics use without their informed consent and reported patients who refused prescribed rehabilitation to law enforcement authorities. A somewhat different concern is the legal implications of government intervention in the event that a pregnant woman refuses a blood transfusion needed to save her life, or a cesarean delivery physicians believe to be in the best medical interest of the unborn. Some view Roe v. Wade as holding by implication that women have a broad right to control—and even abuse—their own bodies without regard to fetal wellbeing. Yet a plausible counterview is that Roe does nothing more than immunize women from prosecution for early abortions, if they choose to have them.

Abortion is controversial in many countries. Violence aimed at abortion providers has occurred both in Canada and the United States. In May 1992 a bomb blast blamed on antiabortion radicals destroyed the Morgentaler abortion clinic in Toronto. Rare in Canada, dozens of abortion clinic bombings and fires have occurred in the United States. Antiabortion activists throughout the United States have demonstrated at abortion sites to focus attention on their concerns. Generally peaceful, these demonstrations have sometimes become blockades that interfere with the ability of patients and staff to utilize facilities where abortions are believed to take place. Demonstrators have sometimes resorted to harassment, noise nuisance, property damage, and murder. The shooting deaths of two Florida physicians outside abortion facilities in 1993 and 1994 dramatized the conflict between protesters and clinics. The United States Congress passed the Freedom of Access to Clinic Entrances Act of 1994 in an effort to assure freedom of access to reproduction services. The act makes acts of obstruction and interference at places providing reproductive services a federal offense punishable by fines and imprisonment.

The right to abortion has been held by some state courts to provide a rationale for permitting "wrongful birth" or "wrongful life" lawsuits. In wrongful birth actions, parents sue healthcare providers to recover from emotional distress and expenses connected with raising children with congenital abnormalities. In wrongful life actions, disabled offspring sue healthcare providers alleging that professional negligence caused their births into lives of pain, suffering, and extraordinary expenses. Citing Roe v. Wade, in Berman v. Allan, 80 N.J. 421, 404 A2D 8 (1979), the New Jersey Supreme Court allowed a wrongful life lawsuit for professional negligence to go forward against the obstetricians of a woman who alleged that she was not offered amniocentesis and, as a consequence, was denied an opportunity to exercise her legal right to abort a fetus affected by down's syndrome. Pennsylvania and several other states have refused to permit wrongful birth or wrongful life suits. Permissive jurisdictions stress the fairness of compelling negligent physicians to share the economic burdens borne by the families of the disabled. However, some policy makers believe such suits imply disrespect for the human life and for the right to life of disabled persons.

Abortion rights and free-speech rights clash in the context of conflicts over abortion clinic protests. Women have a legal right to seek abortion without highly offensive intrusion, physical assault, and violence. These rights come into play where, for example, protesters block access to clinics, or broadcast video of clinic patrons over the Internet or on public access television. But antiabortion protesters have a First Amendment right to freedom of speech, expression, and assembly. Citing the First Amendment in Schenckv. Pro-Choice Network of Western N.Y. (1997), the Supreme Court refused to uphold an injunction that created a "floating buffer zone" with a 15-foot radius around persons utilizing abortion facilities. Seeking to balance the rights of clinic users and protestors, in Hill v. Colorado (2000), the Court upheld a statute creating a narrow, 8-foot "bubble zone" around abortion clinics as a reasonable restriction of protestors' free speech. Following the murders of physicians who performed abortions, a federal appeals court in Planned Parenthood of the Colom./Willamette, Inc. v. Am. Coalition of Life Activists (2002) held that the federal Freedom of Access to Clinics Act's definition of a violent threat extended to the circulation by antiabortion activists of "guilty posters" targeting specific abortion providers. Some federal courts have been reluctant to enjoin abortion protestors accused of actual or threatened violence on the basis of state or federal statutes, such as the Ku Klux Klan Act, not clearly enacted for that purpose. In National Organization for Women v. Scheidler (1994), however, the Supreme Court determined that the federal Racketeer Influences and Corrupt Organizations (RICO) statute could apply to a coalition of antiabortion groups alleged to be members of a nationwide conspiracy to close abortion clinics. The alleged conspirators unsuccessfully argued that RICO applies only to conspiracies in which the alleged racketeers act for the sake of economic gain rather than out of religious, moral, or political conviction. The Court found that acts that did not generate income for alleged racketeers but that adversely affected businesses such as abortion clinics were potentially conspiratorial under the RICO statute. The victory for proabortion rights groups was undercut by a later Supreme Court decision, Scheidler v. National Organization of Women (2003), which held that antiabortion protesters interfering with the property right of lawful abortion did not amount to racketeering acts of extortion required by the RICO statute.

In sum, the practice of abortion raises numerous legal issues in the jurisdictions that permit it. Because so many oppose abortion on religious and moral grounds, abortionrelated questions of legal policy will remain especially complex in the United States and other pluralistic societies. In addition, should reproductive technologies for creating, preserving, and terminating gametes and fetuses continue to proliferate, the number of legal concerns about reproductive rights and responsibilities is as likely to expand as to contract.

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II. CONTEMPORARY ETHICAL AND LEGAL ASPECTS: A. ETHICAL PERSPECTIVES

Abortion is widely regarded as one of the most intractable problems in bioethics. It is certainly true that few issues in bioethics have inspired as much discussion, debate, and open conflict as abortion, in part.... View more

II. CONTEMPORARY ETHICAL AND LEGAL ASPECTS: A. ETHICAL PERSPECTIVES

Abortion is widely regarded as one of the most intractable problems in bioethics. It is certainly true that few issues in bioethics have inspired as much discussion, debate, and open conflict as abortion, in part because the abortion controversy, unlike many others in ethics, has not been limited to scholars and practitioners, but has been engaged on numerous fronts in the United States. Churches and religious organizations, political office holders and candidates, the courts, and the general public have all taken a stand on abortion. In the decades since the U.S. Supreme Court, in its historic 1973 Roe v. Wade decision, effectively legalized abortion through the second trimester of pregnancy, the conflict—political, legal, social, and ethical—has not abated.

Another reason for the intractability of the abortion issue is that the views held by critics and defenders of abortion often occupy extremes. At one extreme, abortion opponents defend an absolute prohibition on abortion, calling abortion nothing less than the murder of an innocent person. At the other extreme are those who defend a woman's absolute right to abortion on demand at any time during pregnancy. Both sides engage in rhetoric and hyper-bole; abortion opponents call themselves "pro-life," implying that their opponents are anti-life, while abortion rights supporters call themselves "pro-choice," suggesting that anti-abortionists oppose personal freedom and choice. When the battle lines are largely ideological, as they are in the abortion conflict, there is little room for rational argument. The result is that rather than search for a middle ground, both sides of the conflict have simply dug their heels in deeper.

An additional source of difficulty in reaching agreement about abortion is that the anti-abortion movement in the United States has been led primarily by the Roman Catholic church and fundamentalist Protestants, who base their opposition to abortion on fundamental religious convictions. If it is impossible to argue rationally for or against such convictions, it is no less difficult to argue about an ethical position that is deeply rooted in them.

Finally, the abortion problem is unusually difficult because the fetus is significantly unlike other entities of moral concern, and because the relationship between a fetus and a pregnant woman is unique, in many ways, among human relationships. The moral status of the fetus is itself a highly contested matter, such that the general moral principles that can be appealed to in other areas of human conduct and conflict do not fit cleanly into the abortion picture. Additionally, because the status of the fetus is at issue, abortion can be as much a metaphysical problem as a moral one.

The contemporary moral controversy over abortion focuses on three central issues: the moral status of the embryo or fetus, which many ethicists contend hinges on the ontological status of embryonic and fetal life; the rights conflict between pregnant women and their fetuses; and consequentialist arguments that weigh the potential for harm to women as a result of restricting or abolishing abortion against the negative consequences of terminating fetal or embryonic life.

Ontological and Moral Status of the Fetus

The question of the ontological status of the fetus can be teased apart from the question of moral status, but in the abortion debate, fetal personhood and the possession of moral rights are often assumed to go hand in hand. The term person, however, is ambiguous, having a legal, a descriptive, and a normative sense. To be a legal person is simply to possess legal rights. In Roe v. Wade (1973), the Supreme Court held that fetuses are not persons as defined by the 14th Amendment of the Constitution, but declined to offer a positive thesis on personhood, acknowledging the difficulty of doing so. "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer" (Roe v. Wade, 1973). To say that something is a descriptive person is just to say that it satisfies certain criteria of personhood, such as species membership. The claim that a fetus is a person in this sense does nothing to justify the claim that killing a fetus is morally wrong unless the fetus also qualifies as a person in the normative sense. Being a person normatively speaking means being a bearer of moral rights, including the right to life. The crucial question of fetal or embryonic personhood, as it relates to abortion, then, is whether and when the genetically human, living entity resulting from the fertilization of an ovum by a spermatozoon is a normative person, a possessor of rights. There is, however, no more consensus on the proper criteria for personhood, and whether or not fetuses can satisfy these criteria, than there is on abortion.

At one extreme of the personhood debate is the position that personhood begins at fertilization, so even very early embryos, composed of only a few cells, are persons. At the other extreme is the view that personhood does not begin until birth or even later, and so no fetus, and perhaps no infant, qualifies as a person. Between the two extremes, there are a multitude of possibilities.

One approach to personhood is the developmental view, which denies that a bright line can be drawn at any particular point in natural development when the fetus acquires moral standing. The developmental view hinges on the continuity of fetal development, and the difficulty of non-arbitrarily picking out properties that qualify some fetuses, but not others, as persons. Since infants are generally regarded as persons with a right to life, and the difference between a late term fetus and a neonate—particularly in the case of viable premature infants—is merely a matter of location, it appears that in the continuous process of embryonic and fetal development, there is no non-arbitrary place to draw a line where personhood begins. This view is in line with the intuition, shared by many on both sides of the abortion conflict, that fetal life becomes increasingly important as gestation continues, but that it is impossible to say with certainty when, exactly, a fetus becomes a person. The inherent vagueness of the developmental view is an obstacle to translating it into practical moral guidelines or public policies, however.

The potentiality view advances conception or fertilization as the beginning of personhood because it is the fertilized ovum, not its constituent gametes, that is considered to have the potential to develop into a human being with full moral status. This can be criticized in two ways. First, it may be argued that even gametes do have the potential to become human persons. Second, as a number of critics of the potentiality criterion have observed, having the potential to become a person is not the same as being one, and it is being a person that confers moral status and rights. As Judith Jarvis Thomson noted, "A newly fertilized ovum, a newly implanted clump of cells, is no more a person than an acorn is an oak tree" (Thomson, 1971, p. 199). In Roe v. Wade, the Court located fetal viability as a line of demarcation, the point after which the state may have a compelling interest in protecting fetal life. Although viability is not a specific moment in the continuum of fetal development, it occurs at approximately twenty-four to twenty-eight weeks gestation, when a number of other significant developmental markers have been achieved, and is the point at which, given proper support, a fetus can potentially survive outside the womb, independently of its mother. It has taken on significance as a convenient, relatively identifiable and verifiable turning point in fetal development, when personhood plausibly begins. Fetal viability is to some extent dependent on technology—premature neonates often need considerable medical support to survive. As technological advances in neonatal care occur, it is possible that the point at which a fetus is viable may change. Some critics of the viability standard claim that personhood ought not be contingent on external facts about the state of medical technology, and therefore cannot stand as a proper criterion for personhood.

As technology has provided a better understanding of the different stages of embryonic and fetal development, criteria such as implantation (when the conceptus becomes imbedded in the uterine lining), the appearance of external human form, and the presence of detectable brainwave activity have all been advanced as criteria for personhood and rights. Traditional criteria for fetal personhood include animation, when fetal movement first occurs, and quickening, the time at which a pregnant woman first feels fetal movement. Early Christian authors talked about ensoulment, the time at which the embryo or fetus is imbued with a soul.

Species membership, or genetic humanity, is the most lenient criterion for personhood, and the most easily verifiable. According to this definition of personhood, any entity conceived of human parents is a member of the human species, and is therefore a person. John T. Noonan, writing from a Catholic perspective, argues that the fetus acquires personhood at the moment of conception, when it receives from its parents the human genetic code (Noonan). The genetic humanity standard can be regarded as both too broad and too restrictive, however. It is too broad because it implies that any living entity with the human genetic code qualifies as a human life worthy of protection. Cancer cells, sperm, and ova all have a human genetic code, and on the least restrictive definition of genetic humanity, such cells would have a right to life, implying that if abortion is impermissible, then so is contraception and chemotherapy. Ethicists who advance a genetic humanity view generally exclude from personhood cells that lack the potential to become human beings, combining a genetic humanity standard with a potentiality principle. The genetic humanity standard can also be regarded as too restrictive because it excludes from the possibility of personhood all nonhuman beings, including some that may warrant the moral status of rights-bearers.

The philosopher Mary Anne Warren argues for a very strict psychological standard of personhood, defining a person as "a full-fledged member of the moral community" (Warren, 1973, p. 347). Genetic humanity alone isn't sufficient for personhood, according to Warren, so not all human beings are members of the moral community. Warren proposes a set of cognitive criteria that, it is claimed, everyone can and does agree are central to the concept of personhood: consciousness, the developed capacity for reasoning and problem-solving, self-motivated activity, the capacity to communicate, and self-awareness. Beings that satisfy some or all of these criteria are people with a moral claim on us, whether they are human or not, for just as some human beings are not people, "there may well be people who are not human beings" (Warren, 1973, p. 348). Membership in the moral community requires the capacity for moral participation, in Warren's view; it would be absurd to ascribe moral obligations and responsibilities to an entity that cannot satisfy any of the cognitive or psychological criteria for moral personhood, and it is equally absurd to ascribe full moral rights to such a being. It is obvious that no fetus can satisfy any of these criteria, and it is equally obvious, Warren argues, that anything that fails to satisfy any of these criteria cannot be a person. A fully developed fetus is no more like a person than a newborn guppy, and cannot have a right to life sufficient to override a woman's right to have an abortion at any stage of pregnancy.

Critics were quick to point out that Warren's standard of personhood could not be met by infants, nor many children and adults with serious cognitive deficits, and thus would problematically justify not only abortion, but infanticide and nonvoluntary euthanasia as well. Warren responded to such criticism by allowing that although a newborn infant is not a person with a right to life, and infanticide is not murder, there are other, utilitarian reasons for the impermissibility of infanticide. Infanticide is wrong for the same reason it is wrong to destroy great works of art or natural resources, because destroying these things deprives people of a great deal of pleasure. Moreover, most people value infants, even if their own parents do not, and would prefer that they not be destroyed. These considerations are not sufficient to override a pregnant woman's right to freedom, happiness, and self-determination, nor her right to an abortion at any stage of pregnancy, Warren claims, but the moment of birth marks the point at which the infant's continued life no longer violates any of its mother's rights, and is thus the point at which its mother no longer has the right to determine its fate. Birth is also morally significant "because it permits the establishment of direct social relationships between the infant and other members of society" (Warren, 1985, p. 6). Thus, although an infant may lack the intrinsic properties that ground a right to life, "its emergence into the social world makes it appropriate to treat it as if it had such a right" (Warren, 1989, p. 56).

While Warren has been accused of offering an ad hoc solution to the problem of infanticide, Michael Tooley argues that neither abortion nor infanticide is intrinsically wrong or undesirable, and indeed, "in the vast majority of cases in which infanticide is desirable … there is excellent reason to believe that infanticide is morally permissible" (Tooley, 1985, p. 14). Tooley's argument is that personhood requires nothing less than self-consciousness, and "An organism possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity" (Tooley, 1972, p. 315). Tooley and Warren both explicitly reject the view that the mere potential to become a person gives the fetus any moral standing.

Philosopher Don Marquis attempts to resolve the personhood standoff by starting with an unproblematic assumption: It is seriously morally wrong to kill an adult human being. Marquis then identifies the natural property that adults have that makes killing them wrong. If the same property is found to belong to fetuses, Marquis argues, it must follow that abortion is also seriously morally wrong. Marquis concludes that what makes killing wrong is that murder deprives its victim of a life and future that is valuable. The victim of a murder is deprived of all the experiences, activities, projects, and enjoyments that would have constituted his or her future, deprived of all that he or she values, or would have come to value, in life. The loss of that valuable future, of what Marquis calls a "future like ours," is ultimately what makes killing wrong. It is also what makes abortion morally wrong, Marquis argues, because fetuses have futures of value. "The future of a standard fetus includes a set of experiences, projects, activities, and such which are identical with the futures of adult human beings and are identical with the futures of young children" (Marquis, p. 192).

Marquis's future-like-ours account implies that it is seriously wrong to kill any being with a future of value—it is non-speciesist in that it does not claim that only human life has value or worth. Rather, like some personhood theories, Marquis's theory leaves open the possibility that other species, if they share the property of having a valuable future, have the same right to life that a human being has, and that killing members of other species would therefore be seriously morally wrong. Marquis offers no account of what a future like ours must look like, or what shared properties of an adult human future make it valuable. This point has been a focus of attack for critics, like David Boonin (see below), Jeffrey Reiman, and Peter K. McInerney, who claim that fetuses do not, indeed cannot, have futures like ours.

Marquis's future-like-ours theory, in opposition to other pro-life accounts, is compatible with the permissibility of euthanasia because it is only the loss of a valuable future—not merely the loss of a life—that makes killing wrong. The future-like-ours theory also accounts for the basic intuition that it is seriously wrong to kill young children and infants, for it is presumed they have futures of value. Personhood theories that advance psychological criteria do not straightforwardly account for the intuition or belief that killing infants and children is morally wrong, and must make appeal to other principles, such as social utility, to account for its wrongness. Appeals to social utility, however, cannot explain the wrongness of killing those who are unwanted or unnecessary.

Marquis's critics point out that he fails to provide an argument for why a fetus that is incapable of valuing its own future should count as a being that can suffer a morally relevant loss of its future. The philosopher David Boonin develops an alternative future-like-ours theory that refutes the claim that every fetus has a right to life, and that abortion is in typical cases morally impermissible, on terms that critics of abortion, like Marquis, can and do accept. Boonin argues that a fetus acquires a right to life only at the point in fetal development when organized cortical brain activity is present. The "cortical criterion" is the only morally relevant criterion for moral standing and a right to life, Boonin argues, because organized cortical activity is what makes it possible to have a future like ours. "We have a future-likeours only because we have a brain which will enable us to enjoy, in the future, the kinds of conscious experiences that make our lives distinctively valuable to us" (Boonin, p. 126). Boonin's theory, like Marquis's, identifies a natural property that fetuses possess that makes killing them morally wrong. But while Marquis's future-like-ours property broadly applies equally to all fetuses and embryos, Boonin's cortical criterion narrows the category of beings with a right to life to those with a developed capacity for conscious desires. "It is because these individuals currently have desires about their futures that our desires about how to behave are not the only ones that are morally relevant" (p. 73). Thus, Boonin's theory does not claim, as some personhood theories do, that no fetus ever has a right to life, but only that this right does not exist from the moment of conception, and he concludes that if, as Marquis proposes, depriving a fetus of a future like ours is the wrong-making feature of abortion, then "abortion in typical circumstances is permissible," because the typically aborted fetus lacks a future like ours (p. 129).

Marquis contends that a desire-based account of the wrongness of killing cannot explain why it is morally wrong to kill individuals who have no desire to live, such as suicidal teenagers, the sleeping, and the unconscious. Any theory in which having a valuable future depends upon actually desiring that one's life continue fails to adequately account for the basic intuition that killing beings who do not occurrently value their own futures is seriously morally wrong. The value of life, Marquis argues, is not secondary to our desire for it. If it were, a mere reordering of desires could make killing morally right. The fact that a fetus does not desire the continuation of its own life does not imply that its future has no value—its future is ultimately valuable to it because it will be valuable to it in the future.

Boonin proposes a modified future like ours principle that can account for the wrongness of killing in Marquis's counterexamples, however, because it does not depend on occurrent desiring. In Boonin's modified future-like-ours principle, present ideal dispositional desires—desires an individual would have, given perfect conditions such as rationality, consciousness, and ideal circumstances—account for that being having a valuable future (p. 73). It is only the possession of actual dispositional desires, however, and not the mere capacity for such desires in the future that has moral relevance, Boonin argues. Consequently, a preconscious fetus does not have the same moral standing, or the same right to life, as a conscious late term fetus, an infant, a child, or an adult. If Boonin's cortical criterion is accepted, the vast majority of abortions, which take place well before the point at which fetuses can form conscious desires, are morally permissible.

A looser cognitive criterion for personhood is adopted by Baruch Brody, who appeals to the symmetry between the development of a functioning brain as the beginning of fetal humanity and the cessation of brain function as the definition of death, or the end of humanity. That is, the property whose acquisition confers the right to life in the first place is the same property that, when permanently lost, entails the loss of a right to life. That property is the possession of a functioning brain. If the brain death theory is correct, Brody concludes, a fetus becomes a human being about six weeks after fertilization, when it has a functioning brain. After that point, abortions, except under unusual circumstances, are morally impermissible. Brody's is a significantly looser cognitive criterion than Boonin's "organized cortical activity" criterion because it makes fetal humanity dependent on the presence of early brain function which is not sufficiently organized to support consciousness. A difficulty for Brody's theory is that determining when brain death has occurred may be nearly as difficult as determining when personhood begins. Brain death has proved notoriously difficult to ascertain because detectable electrical activity can continue in a brain that has ceased meaningful functioning. One study shows that at least 20 percent of "brain dead" patients continued to exhibit electrical activity on electroencephalograms, some of it compatible with function (Truog, p. 161). The symmetry Brody appeals to is thus elusive—it may be no easier to define when personhood ends than it is to define when it begins.

Both proponents and opponents of abortion believe that settling the abortion controversy requires settling the question of personhood. While there is room for agreement in positions like Boonin's, Brody's, and even Marquis's, at either extreme standards of personhood like Noonan's and Warren's are incommensurable, leading some to question the utility of defining personhood as a route to resolving the abortion conflict. So long as the fetus's moral standing is believed to depend on fetal personhood, however, the question of personhood will not disappear from the abortion debate.

Rights Conflicts and Abortion

Most opposition to abortion is grounded in two assumptions: the first is the moral personhood and right to life of the fetus; the second assumption is that, in a conflict of rights, the right to life must trump a woman's right to privacy, choice, and bodily autonomy. Many pro-choice arguments ignore the second assumption—perhaps because it seems intuitively implausible that any other right could outweigh a right to life—and focus solely on the first assumption, either offering support for the claim that fetal personhood occurs substantially later in fetal development than conception, or arguing that the criteria for moral personhood can never be met by a fetus. Neither proposition is acceptable or defensible to abortion opponents for whom it is an article of faith that a fetus has a right to life. Thomson puts forth an argument that grants, for the sake of argument, fetal personhood from conception, but challenges the second pro-life assumption that the right to life always overrides other rights.

Thomson's argument employs an analogy that has engendered controversy among both defenders and critics of abortion. Imagine, Thomson writes, that you awake one morning to find yourself hooked up to the body of an unconscious violinist who is suffering a fatal kidney ailment. The Society of Music Lovers has kidnapped you and plugged this famous violinist into your circulatory system, so that your kidneys can be used to filter his blood. You are told that in nine months, the famous violinist will have recovered, and can be safely detached, but in the meantime, to unhook him from your body would kill him. The violinist is a person, and so he has a right to life. Your life is not endangered, but you must remain tethered to the violinist against your will for nine months, thus greatly diminishing your freedom. If his right to life guarantees him the use of your body for life support, then it is morally incumbent on you to provide it, regardless of the cost to your personal freedom. The implications for abortion are clear: the violinist is meant to be analogous to a fetus, and you and your kidneys are analogous to a pregnant woman providing life support to a fetus. If, Thomson argues, it is implausible that you are morally obligated to sustain the violinist's life at such a cost to your personal freedom, then it ought to be equally implausible that a fetus's right to life guarantees it the right to continued use of a woman's body (Thomson). Thus, the fetus's right to life doesn't make abortion morally impermissible, for "having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person's body—even if one needs it for life itself" (Thomson, p. 336).

If Thomson's analogy is accepted, there are serious grounds for questioning the assumption that abortion is morally impermissible if a fetus has a right to life. However, both opponents and proponents of the right to abortion have argued against the soundness of Thomson's analogy. Abortion critics claim that there is a deep, even grotesque disanalogy between a fetus and the violinist, and that Thomson fails to attend to the moral distinction between intentionally killing and letting die. Abortion, it is argued, intentionally kills a fetus, but detaching oneself from the violinist only allows the violinist to die from his kidney ailment, an act with a very different moral status than murder. Abortion proponents and opponents alike raise a responsibility objection to Thomson's argument, claiming that her conclusion only holds in cases where pregnancy results from an involuntary act. Warren criticizes Thomson's analogy on those grounds, arguing that it is too weak to provide a thorough defense of a right to abortion, allowing it only in cases of rape (Warren, 1973). Since the majority of unwanted pregnancies are not the result of rape, Thomson's argument would permit abortion in only a small fraction of unwanted pregnancies. Thomson acknowledges that her argument leaves open the possibility that there may be some cases in which the unborn person acquires, tacitly or by consent, a right to the use of the mother's body, and in which abortion would be an unjust killing. But this possibility does not force the conclusion that all abortions are unjust killings. "Except in such cases as the unborn person has a right to demand it … nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine years, or even for nine months, in order to keep another person alive" (Thomson, p. 338).

It is difficult to consistently maintain the position that a fetus's right to life trumps all other rights or considerations. In cases where the life of a pregnant woman is endangered by pregnancy, only the most extreme opponents of abortion claim that because abortion is the intentional killing of an innocent person, it is still morally wrong and the mother must be allowed to die. More moderate opposition to abortion allows exceptions for the life or health of the mother, and also for cases where pregnancy results from rape or incest. There is a clear inconsistency in the rape and incest exception, however, since it makes the unborn fetus's right to life contingent on the actions of its father. Abortion opponents who grant exceptions in cases of rape and incest must, if they are consistent, explain why those fetuses have a different moral status, or less of a right to life, than other fetuses, or why the right to life loses its priority to a woman's rights in those cases.

Pro-choice feminist arguments charge that most discussions of abortion place undue emphasis on fetal rights and too little emphasis on the contexts in which decisions about abortion take place. Susan Sherwin argues that traditional, nonfeminist approaches to the abortion controversy are too simplistic, considering the permissibility of abortion in isolation from the social and sexual subordination of women, and the struggle of women for control over their bodies and reproduction. Nonfeminist arguments thus mistakenly claim that the moral status of abortion turns exclusively on the moral status of the fetus (Sherwin). The central moral feature of pregnancy, Sherwin argues, is that it takes place in women's bodies and profoundly affects their lives. Because fetuses have a unique physical status of dependence on particular women, they have a unique social status as well—the value of a fetus, Sherwin claims, is determined solely by the nature of its primary relationship to the woman who carries it, and "no absolute value attaches to fetuses apart from their relational status" (p. 111). The focus on the fetus as an independent, rights-bearing entity denies pregnant women their proper roles as independent moral agents who, alone, have "the responsibility and privilege of determining a fetus's specific social status and value" (p. 110).

Some pro-life feminists attempt to sidestep the rights controversy and argue instead that abortion is inconsistent with the goals and ideals of feminism, such as opposition to violence, and the promulgation of an ethic of caring, nurturing, and interconnectedness. Others, like Sidney Callahan, argue that feminist goals cannot be achieved in a society that permits abortion (Callahan). The exclusion of the unborn from the sphere of rights and protection, Callahan argues, is analogous to the exclusion of women in unjust, patriarchal systems where "lesser orders of human life are granted rights only when wanted, chosen, or invested with value by the powerful" (Callahan, p. 368). Moreover, to grant a right to abortion in the name of women's privacy or autonomy validates the view that pregnancy and child-rearing are the sole responsibility of individual women, relieving men and the community from any responsibility. Thus "women will never climb to equality and social empowerment over mounds of dead fetuses …" (Callahan, p. 371). To exercise moral autonomy, Callahan argues, requires responsiveness and responsibility not only to what is wanted or chosen, but to what is unwanted and unchosen as well. Callahan makes no exceptions for pregnancy due to rape, arguing that even the involuntarily pregnant woman has "a moral obligation to the now-existing, dependent fetus whether she explicitly consented to its existence or not" (Callahan, p. 370).

Margaret Olivia Little argues that the literature on abortion deeply undersells the moral complexity of abortion, focusing too much on a thin moral assessment of its permissibility. She proposes that what is needed in the moral discussion of abortion is an ethics of gestation that addresses questions of "what it means to play a role in creating a person, how to assess responsibilities that involve sharing, not just risking, one's body and life, what follows from the fact that the entity in question is or would be one's child." (Little, p. 493). A more complex moral interpretation must move beyond questions of metaphysical and moral status and permissibility to consider abortion's "placement on the scales of decency, respectfulness, and responsibility" (Little, p. 492).

If fetuses are not persons, Little argues, they are nonetheless respect-worthy because they are burgeoning human lives, and abortion remains a serious matter because it involves the loss of something significant and valuable. Even if we allow that fetuses are persons, however, the important moral question is what positive duties and responsibilities, if any, pregnant women have to continue gestational assistance. Both liberal and conservative positions on the duties of parenthood assume that it is an all or nothing affair, and that pregnant women either have the same obligations and responsibilities to fetuses that they do to children, or that they owe nothing beyond general beneficence. But parenthood, Little claims, is more than a social role—it is, more crucially, a relationship that develops through time, interaction, and emotional intertwinement. Regardless of the view one takes on the personhood of fetuses, gestation uniquely changes the relationship a woman has to her self, bringing with it a new identity and an impending relationship with another that is not always welcome or sustainable. Thus, "assessing the moral status of abortion … is not just about assessing the contours of generic respect owed to burgeoning human life, it's about assessing the salience of impending relationship" (Little, p. 498).

The fetus's status becomes progressively weightier as pregnancy continues, Little suggests, but until the fetus is a person, there is a moral prerogative to decline parenthood and end pregnancy because it "so thoroughly changes what we might call one's fundamental practical identity …. As profound as the respect we should have for burgeoning human life, we should acknowledge moral prerogatives over identity-constituting commitments and enterprises as profound as motherhood" (Little, p. 498).

The Selective Abortion Controversy

The development of tests to prenatally diagnose genetic diseases and disorders has greatly outpaced the development of effective treatments and therapies. The Human Genome Project promises to accelerate the development of prenatal diagnostic tests. Through procedures like chorionic villus sampling (CVS), which can be performed at ten weeks gestation, and amniocentesis, available at fourteen to sixteen weeks, numerous genetic abnormalities in the fetus can be detected in utero. The tests are routinely administered to women at risk for fetal abnormalities, such as older mothers and those with a family history of genetic disorder. Ultra-sound, which is routinely performed throughout most pregnancies, can detect a number of abnormalities as well, including neural tube defects that can result in severe physical and cognitive disability and death. In rare instances, fetal therapy, including surgery, can correct the problems, but the overwhelming majority of pregnant women whose fetuses are found to have abnormalities are currently faced with only two options: abort the defective fetus, or risk giving birth to a child that will potentially face a lifetime of disability and hardship. In cases where the fetus's condition will result in severe physical or mental impairment, or where it will lead to inevitable death and a short, painful life, only the most extreme opponents of abortion maintain that it is wrong to abort. Abortion moderates and supporters see those as clear cases where abortion is not only morally permissible, but in some situations, morally required. Less agreement exists regarding the abortion of fetuses with minor abnormalities, genetic predispositions to disease, and genetic diseases that are eventually lethal, but compatible with more or less normal life for many years.

Disabilities rights advocates oppose the routine administration of prenatal screening and the selective abortion of fetuses found to have abnormalities. Although many disabilities rights scholars are pro-choice, and defend a woman's right to choose abortion, they object to the use of selective abortion for fetal indications, which they argue discriminates against existing people with disabilities, and sends the message to those living with disabilities that they should never have been born. This so-called Expressivist Argument claims that selective abortion expresses discriminatory attitudes towards the disabled and undermines efforts to create a more just, inclusive society (Asch, 2000). The disability critique of abortion is novel because it is concerned only with the abortion of otherwise wanted fetuses that possess a single undesirable trait, a disability.

There is profound disagreement about the use of prenatal screening and selective abortion to select fetuses for gender, either for purposes of family "balancing" or because of personal or cultural preferences for children of a particular sex—typically male. Throughout many parts of Asia, where female infanticide was once common, it has been to some extent replaced by the use of ultrasound to prenatally determine the sex of a child, followed by selective abortion of female fetuses. Analysis of census data and predicted sex ratios shows that, by a conservative estimate, more than 100 million females are missing worldwide. In China alone, where selective abortion of females is illegal, it is estimated that there are 30 million missing females, about five percent of the national total; in India and Pakistan, the number exceeds 24 million (Kristof). The criminalization of female infanticide and abortion in China and India has done little to change the deeply ingrained cultural preferences that lead to the practices, and there is good reason to believe that in societies where male offspring are overwhelmingly preferred, missing females who are not aborted are the victims of infanticide, abandonment, or fatal neglect. For consequentialist reasons, many would regard abortion as preferable in those circumstances. Little observes that in cultures that openly discriminate against women and girls, giving birth to a daughter who will face rejection and disrespect can do violence to a woman's ideals of creating and parenthood: "A woman living in a country marked by poverty and gender apartheid wants to abort because she decides it would be wrong for her to bear a daughter whose life, like hers, would be filled with hardship" (Little, p. 499). In Western countries where gender equality is avowed, however, the use of abortion for sex selection leaves many abortion rights defenders uneasy with the prospect of justifying a morally serious practice done for reasons regarded as trivial or patently discriminatory.

There is growing controversy over the use of fertility treatments like in vitro fertilization (IVF) and superovulatory drugs, which pose a fairly high risk of multiple gestations and births. Numerous complications affecting both the pregnant woman and her offspring are associated with multiple pregnancies. The high cost and low success rate of fertility treatments contributes to the problem—with IVF, it is typical practice to implant more than the desired number of embryos in order to increase the odds of success; superovulatory drugs, which stimulate a woman's ovaries to produce dozens of ova, afford little control over the number that will ultimately be fertilized and implanted. It is more than a little ironic that the effort to assist couples in achieving pregnancy has led to an abortion controversy over the use of selective reduction, the practice of removing some fetuses in multiple pregnancies in order to increase the chances of a healthy pregnancy and birth for the remaining fetuses. Although the procedure is not without risks—miscarriage, fetal death, and disability are known complications of selective reduction—some commentators question whether in pregnancies with a large number of fetuses—more than two or three—there is a moral imperative to reduce in order to decrease the risks to the surviving offspring. In 1997, twenty-eight-year-old Bobbi McCaughey made history when she gave birth to seven live babies—born eight weeks premature—after using fertility drugs to stimulate ovulation. While the McCaughey septuplets were widely reported as a medical "miracle," some medical ethicists questioned the wisdom of the parents who, as devout Christians, refused the option of selective reduction, thus placing their offspring at increased risk for prematurity, low birth weight, cognitive and physical disability, and death (Steinbock, p. 377). In addition to serious ethical concerns about the risks of fertility treatments and multiple pregnancies, there are consequentialist and social justice concerns about the multimillion dollar cost of neonatal care associated with multiple births, and, in a climate of medical cost-cutting, the responsible use of limited healthcare dollars.

Partial Birth Abortion

Partial birth abortion is a nonmedical term coined by anti-abortionists to describe an abortion procedure known technically as intact dilation and extraction (D&X). D&X is used primarily in second trimester abortions, and the procedure involves partially delivering a living fetus into the birth canal, then collapsing the skull and completing delivery of a dead but otherwise intact fetus. In an amici brief to the Supreme Court, the American College of Obstetricians and Gynecologists noted that D&X involves substantially less risk of complication than other methods of abortion used during the same gestational period (Stenberg v. Carhart, 2000). Fewer than five percent of abortions performed in the United States occur in the second trimester, with the vast majority taking place in the first trimester, but when the D&X procedure was widely publicized by abortion opponents in the mid-1990s, it created immediate controversy. President Bill Clinton twice vetoed federal bills to ban partial birth abortions, but a number of state laws were passed prohibiting the procedure. A Nebraska statute that made the performance of D&X a felony was challenged in a case brought to the U.S. Supreme Court in Stenberg v. Carhart (2000). The Court held that the Nebraska statute violated the Constitution because it lacked any exemption for the preservation of the health of the mother, and because the law's vagueness imposed an undue burden on a woman's ability to choose the more common dilation and evacuation (D&E) abortion procedure, which sometimes involves partial delivery prior to fetal dismemberment. In striking down the Nebraska ban, the Court invalidated the nearly identical laws of thirty other states.

From a consistent pro-life perspective, there can be no moral difference between partial birth abortions and abortions performed using other methods. Because a second-term fetus more closely resembles an infant than does an embryo or very early fetus, publicizing graphic and often gruesome descriptions of the D&X procedure helped the pro-life cause politically, but aside from its inflammatory aspect, it contributed little to the abortion debate. Many pro-choice ethicists, however, regard later abortions of healthy fetuses as more morally serious than early abortions. When the moral permissibility of abortion depends on the criteria used to determine fetal moral status, there is an unsettled empirical question that becomes more urgent as pregnancy continues. In second trimester abortions, cognitive criteria for fetal personhood or rights, such as sentience or cortical activity, may, by conservative estimates, be satisfied, but it remains an open question whether certainty can be achieved in this substantial gray area of fetal development.

Consequentialism and Abortion

The abortion debate in the United States has almost exclusively focused on questions of rights, to the exclusion of all other considerations. A consequentialist approach that assesses the morality of abortion in light of its good and bad consequences has the potential to resolve the rights standoff, and a number of consequentialist considerations have bearing on the abortion debate. Abortion critics have long raised fears of a slippery slope, charging that permissiveness about abortion will inevitably lead to the devaluation of human life, and a "culture of death" in which attitudes about other forms of killing, such as infanticide and euthanasia, will become more permissive. The argument depends on the assumption that the killing of a fetus is regarded as just as serious as the killing of an infant, child, or adult, and that the permissibility of one entails the permissibility of all. The culture of death argument, like other slippery slope arguments, also makes an empirical claim that the evidence to date fails to support. Since abortion was legalized in the United States in 1973, there has been no slide toward permissiveness about other forms of killing. Only one state, Oregon, has legalized physician-assisted suicide, under strict regulation. In all other states that have considered physician-assisted suicide or euthanasia, voters have declined to endorse it. Neither is there evidence to suggest that the killing of newborns is more common in the United States than it was before abortion was legalized, but in parts of the world where infanticide has historically been an acceptable means of eliminating unwanted offspring, the availability of abortion has not increased the incidence of infanticide, but reduced it (Kristof).

The coat hanger has been a powerful symbol of the abortion rights movement, a reminder of the dangerous, sometimes deadly abortions women endured before Roe v. Wade. Proponents of abortion rights have substantial evidence to support the claim that legal prohibitions on abortion lead to the deaths of women through self-induced abortions or illegal, unsafe abortions performed by untrained providers. Legal abortion performed under safe and sanitary conditions is generally safer than pregnancy, but in countries where abortion is prohibited, or access is severely limited, the negative consequences of unsafe and self-induced abortions include serious complications such as sepsis, hemorrhage, genital and abdominal trauma, perforated uterus, gangrene, secondary infertility, permanent disability, and death (World Health Organization [WHO]). Treatment of complications from unsafe abortions places a serious strain on the medical infrastructure of developing countries, where a disproportionate share—up to 50 percent—of scarce hospital resources are expended treating abortion complications. Unsafe abortions thus compromise other maternity and emergency health services in poor countries where healthcare is already inadequately resourced (WHO). Statistics on abortion-related mortality are especially telling: In Paraguay, illegal abortions are responsible for an astonishing 23 out of every 100 deaths of young women (United Nations). In Romania, abortion-related deaths increased sharply after 1966, when the government restricted abortion. The maternal death rate rose from 20 per 100,000 live births in 1965 to 150 per 100,000 in 1983. Abortion-related deaths decreased by more than 50 percent in the year after abortion was again legalized in 1989 (WHO). Statistics on abortion-related mortality in the United States tell a very different story about safe, legal abortion: the death rate is 0.6 per 100,000 procedures, making it as safe as a penicillin injection (WHO).

Social Justice and Access to Abortion

Decades after Roe v. Wade, state and federal courts and legislatures continue to address the abortion issue, and government agencies have adopted numerous regulations that affect access and funding for abortion. The practical effect of much of this activity has been the erosion of abortion rights.

Women seeking abortions currently face difficulties that are not encountered in any other area of medical care. The consolidation of the healthcare industry has reduced the number of hospitals that perform abortion, and the majority of abortions in the early twenty-first century take place in free-standing clinics that are often besieged by anti-abortion protesters who block entry to clinics and harass patients. Abortion clinics have been bombed, and doctors who provide abortion murdered. This use or threat of violence by anti-abortion extremists has had a profound effect on access to safe abortion by contributing to a decline in the number of doctors willing to perform abortion. A 1997 study shows that the percentage of obstetrics-gynecology providers willing to perform abortions dropped from 42 to 33 percent between 1983 and 1995 (Washington Post, 1998). A 1998 study published by the National Abortion and Reproductive Rights Action League showed that 86 percent of U.S. counties—with nearly one-third of the female American population—had no abortion provider (Michelman).

In such an atmosphere, concerns about equality and social justice arise because limited access to abortion disproportionately affects poor women (Schulman). The deeply divisive moral controversy over abortion has engendered a secondary political conflict over who should pay for abortions. Federal restrictions limit Medicaid funding for abortions to those necessary to preserve a woman's life, or for pregnancies that result from rape and incest. At the same time, state and federal welfare reform initiatives have resulted in many women and children losing welfare benefits, putting a further strain on the ability of the poorest women to procure abortions that are available to financially betteroff women, and compounding the economic injustice of a healthcare system already rife with inequalities. When access to safe abortion depends on the ability to pay, the right to abortion exists in principle, but not practice.

Equally problematic from the standpoint of justice are government policies that deny financial assistance to family-planning clinics that provide information to clients about abortion. The global gag rule imposed on international family planning groups—which sometimes provide the only healthcare available to poor women and their children in developing countries—prohibits those organizations from receiving funds from the U.S. government if they discuss abortion. It is incompatible with principles of justice and equality to deny women access to information about the option and availability of abortions if it means they will be denied healthcare services that are available to women who are wealthier or better educated.

Medical abortion, or the use of the abortion drug RU-486, also known as Mifeprex, was once viewed as a solution to the problem of limited or inconvenient access to surgical abortion, but it has not proven to be an option for most women in the United States. The drug has been widely used in Europe, and was approved by the Food and Drug Administration (FDA) in 2000 despite considerable protest by anti-abortion forces. But recent surveys show that only 6 percent of obstetrician-gynecologists and 1 percent of family doctors provide RU-486 to their patients. There are a number of reasons: RU-486 is expensive, it requires three visits to a doctor—which is particularly difficult for women who must travel substantial distances to see a provider—and it must also be administered early in pregnancy. FDA regulations also require that doctors who administer RU-486 be able to perform surgical abortion, or be affiliated with a hospital that can, which limits the number of doctors who can prescribe the drug (Washington Post, 2002).

Can the Abortion Conflict Be Resolved?

The reasons women choose abortion are as varied as the reasons they often choose not to abort. In countries where abortion is legal, and countries where it is not, millions of women make individual moral choices to end pregnancies. Some seek abortion after contraceptive failure, others because it is the only contraceptive option available to them; some choose to end their pregnancies for financial or emotional reasons, or for the well-being of their families; still others make the tragic decision to terminate a desired pregnancy because of an unwelcome prenatal diagnosis,