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Fetal Position

Stephen C. Meyer, David K. Dewolf
National Review
March 20, 1995
Since their dramatic election victory last November, Republicans have been urged to avoid getting "bogged down in divisive social issues." Yet as the controversy over President Clinton's nomination of Henry Foster for surgeon general has shown, Americans are more concerned about so-called social issues than media coverage and elite opinion would indicate. This is particularly true of abortion, ostensibly the most divisive of all social issues.

Candidates committed to a pro-life agenda actually did disproportionately well in 1994. Not a single pro-life incumbent of either party lost to a pro-choice challenger in a gubernatorial, House, or Senate race. Pro-life challengers also did well: 64 of the 72 GOP House freshmen are clearly pro-life, as are 2 of the 14 new Democrats. Most of the 11 incoming GOP senators are also pro-life. Exit- polling data confirm that the abortion issue helped nearly all Republicans with a pro-life position.

In the House a clear majority--224 members--have pro-life voting records or views, while only 160 members define themselves as pro-choice. The remainder have mixed records. In the Senate, the pro-life side holds a narrower edge, with 47 senators strongly pro-life, 44 pro-choice, and 9 with mixed records.

These numbers represent more than just an accidental consequence of the electorate's move to the right in the mid-term elections. They reflect a growing moral consensus about the practice of abortion on demand. While a minority of Americans favor a complete prohibition of abortion, an overwhelming majority favors significant legal limits on the right to terminate pregnancy. Americans believe that abortion should be, to use President Clinton's word, "rare."

Given this consensus, the pro-life majority in Congress has a unique opportunity to place sensible restrictions on elective abortion. A compelling moral, legal, and political case can be made for Republican-led initiatives to limit late-term, mid-term, and sex-selection abortions.

The Moral Argument

The moral case for limiting late-term abortions depends not solely on religious authority but also on widely shared moral intuitions and recent developments in medical science. With the advance of medical technology during the last two decades, the age at which a human fetus can survive outside its mother's womb--the so-called age of viability--has steadily declined. While obstetricians disagree about the minimum age of viability, all agree that some premature infants of 20 weeks, and most of 24 weeks, can survive ex utero. Yet under Roe v. Wade, clinical abortion is allowed through the full nine months of pregnancy. Last year, more than 50,000 abortions were performed in the United States after 17 weeks' gestation, including at least 17,000 after the point of viability.

While such abortions constitute a small minority of the 1.6 million performed annually, they represent little more than legalized infanticide. As many as 1.5 million American families are waiting to adopt children. Women wanting to rid themselves of viable infants can generally do so as easily by delivering them and then turning them over to adoptive parents as by aborting them. Given the health risks to women from the abortion procedure itself, it is hard to provide a compelling reason (apart from complications that threaten the mother's life) to allow abortion late in pregnancy.

In any case, the present situation creates absurd moral dilemmas for those defending the status quo. What possible justification can exist for the termination of an unwanted fetus of, say seven months, when heroic medical measures are being taken, possibly in the next ward, to save even younger children at their parents' behest? Why should the biological mother's attitude determine an infant's moral status? Those who deny the Biblical claim that God "forms the spirit of man within him" may still dispute the sanctity of life or whether life begins at conception. But no one can credibly claim that life begins only after a full nine months of gestation.

Advances in medical science and technology have important moral implications for mid-term abortions as well. So disturbing has been the experience of observing abortion on ultra-sound monitors that many abortion doctors who have seen the procedure have refused to participate in abortions again. Bernard Nathanson, a former director of the National Abortion Rights Action League (NARAL), who performed thousands of abortions, repudiated the practice in the early 1980s after observing the apparent agony of a fetus subjected to a suction-tip abortion.

Modern neurology supports Nathanson's impression that the fetus experiences pain, not just reflex. Reflexive reactions, such as the involuntary and painless knee kick elicited by the tap of a physician's mallet, electrically stimulate only the spinal column. By contrast, the more complex "aversive" reactions that indicate pain stimulate a tiny brain sensor called the thalamus. Neurologists can detect thalamus and central-nervous-system function in the human fetus as early as the 8th, and certainly by the 13th, week of gestation. The coordinated motor responses observable in a fetus undergoing abortion--its desperate rearing and "silent screams"--give every indication that the second-trimester fetus is a sentient creature capable of experiencing pain.

By what moral calculus, religious or secular, can such a procedure be justified? Humanitarian common sense dictates that we not subject sentient human fetuses to painful procedures that we would protest if they were done to the higher animals. We would not heedlessly dismember dogs or cats or crush their skulls with forceps. Why shouldn't a sentient and, by all accounts, at least a potential human being be afforded the same considerations and legal protection as animals receive in many states?

In view of these considerations, a future Congress could certainly justify legislation prohibiting abortions after the beginning of the second trimester (13 weeks). For the present, however, pro-life legislators should focus on prohibiting post-viability abortions and educating the public about the physiological development of the pre-viability fetus and its affective response to the abortion procedure. Congress could, for example, fund programs designed to inform prospective parents about fetal pain and post-abortion health risks to the mother. Those worried that such a move would create a political opportunity for pro-choice Democrats should note that more than 80 per cent of the public, including a significant percentage of the population usually classified in polls as "pro-choice," already opposes abortions after the beginning of the second trimester.

The Significance of Casey

On the legal front, there are reasons for cautious optimism about national legislative efforts that occupy the moral and political center of the abortion controversy. The "center" or "plurality" of the Supreme Court (David Souter, Anthony Kennedy, and Sandra Day O'Connor), which has to approve the constitutionality of any legislative restrictions on abortion, upheld some limits in Planned Parenthood v. Casey. Although they claimed to reaffirm the central holding of Roe, they effectively redefined its meaning and undermined its logical and moral foundation.

In Roe, the Court said the mother's rights are strongest in the first trimester, but it did not accept that the rights of the fetus ever eclipsed those of the mother. In Casey, the Court explicitly rejected this reasoning, with seven of the nine Justices allowing some limitations on abortion rights. As the plurality put it, "States are free to enact laws that provide a reasonable framework for women to make a decision that has such a profound and lasting meaning," provided they do not place an "undue burden" on the woman. More importantly, the plurality also acknowledged that, while "the woman has some freedom to terminate her pregnancy," that freedom gives way at some point to the rights of the fetus. In particular, they said "the line should be drawn at viability."

It remains true, of course, that the center, and thus the Court, refused to overturn Roe. Yet the center's reasons for refusing to do so suggest a greater openness to shifting policy responsibility from the Court back to legislatures. The Court seemed reluctant to overturn Roebecause it worried about the absence of ballast in the political center. The plurality called for "the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."

Pro-life legislators can take the plurality's concern about moderation into account and formulate their legislative agenda accordingly. They certainly should feel no compunction about occupying the territory that has already been ceded by the Court. Abortions after 20 weeks (the point of earliest viability) remain legal in all fifty states, even though a majority (at least six) of the Court's current members have indicated a willingness to consider legislation protecting viable life.

Yet constitutional opportunities may exist for legislation that presses the issue further. The Court's abandonment of the original justification for Roemay allow the emergence of a new legal context for the discussion of abortion--one that could allow restrictions on sex selection and the abortion of sentient second-trimester infants.

In Roe, the Supreme Court acknowledged that, if the fetus was indeed a person, it would be protected by the Fourteenth Amendment. Abortion has been permitted only because of doubts about the personhood of the fetus. Yet with the advance of medical technology and the science of fetology, arguments denying the personhood of the 20-week, and indeed the 13-week, fetus seem increasingly implausible. Hence, the Fourteenth Amendment--which authorizes Congress to intervene on behalf of "persons" in danger of being deprived of life, liberty, or equal protection--emerges as a legitimate vehicle for protecting the unborn.

In previous civil-rights legislation Congress has outlawed race and sex discrimination. What greater form of sex discrimination could exist than selective killing on the basis of sex?

Tackling the sex-selection and fetal pain issues will push the envelope of opportunity detectable in Casey. While there is a danger of overreaching, there is also a danger of timidity. If Congress cannot persuade the Supreme Court to retreat gracefully from its attempts to micromanage the abortion controversy, what are the chances that the Court will do so as a result of piecemeal state legislation? In fact, Congress has the opportunity to shoulder more responsibility for abortion policy and to wean the Court from a task for which it increasingly displays only, a sense of weary obligation. Congress can offer itself as a lightning rod for the political repercussions that centrists on the Court fear.

The Political Advantages

Republican legislation outlawing the most unjustifiable abortions will benefit the Republican Party politically precisely because such legislation would accurately express the current moral consensus. Polling data show that less than 10 per cent of Americans agree that abortion should remain legal in all circumstances through nine months of pregnancy. Yet both the Democratic platform and the pro-choice arguments of many Democratic politicians, including the President and the First Lady, implicitly sanction such license. Moreover, a large segment of the electorate does not realize that the Democratic platform endorses the right to choose late-term abortions, and many voters do not even realize that such abortions are legal. A GOP-led measure to outlaw such abortions would publicize the Democratic Party's radical and unpopular commitment to abortion on demand.

Republicans should not pass up the opportunity to place pro-choice Democratic politicians on the horns of a dilemma. Republican legislation will force Mr. Clinton either to capitulate to reason by supporting the protection of sentient and viable infants or to defend an indefensible position, thus moving the moderate pro-life vote ever more firmly into the Republican camp. As Family Research Council President Gary Bauer recently pointed out, 27 per cent of voters in the last election said the abortion issue influenced their vote, and two-thirds of this group identified themselves as pro-life. Both these percentages are likely to rise if Republicans in Congress seize the initiative and define the abortion issue on favorable political, legal, and moral terms.

Many pro-life activists may feel uneasy about appearing to compromise on the sanctity of life at any point after conception. In this connection, an historical parallel may prove instructive. While debating Stephen Douglas, and later, while campaigning for the Presidency, Abraham Lincoln acknowledged that the Federal Government did not have the power to end slavery by fiat. Yet by warning that "a house divided against itself cannot stand," he refused to admit the legitimacy of slavery. He continued to argue, on Biblical and moral grounds, for ultimate abolition. At the same time, in the legal and political domain he accepted compromises designed to achieve limited goals and to build moral consensus.

By refusing to press for immediate and outright abolition in the South, Lincoln angered many abolitionists; by supporting limits on the territorial expansion of slavery, he angered slave owners, who understood that such measures denied the moral legitimacy of slavery. Ever principled and pragmatic, Lincoln forced the issue where the arguments for slavery were weakest and avoided engagement (until he could win) where justifications for slavery appeared most strong.

Pro-life legislators in 1995 have an opportunity to employ this venerable Republican strategy to redefine the terms of the most compelling moral issue of our time. By passing intentionally modest and incremental legislation designed to expose the moral contradictions, the legal ambiguities, and the political vulnerabilities inherent in the pro-choice position, Republicans can begin to forge a national consensus against the unnecessary killing of the unborn. Not only would legislation of this sort expose the anachronistic legal and scientific reasoning that remains the sole foundation for Roe, it could also force both political parties to acknowledge the moral consensus that Roe likes forcibly suppressed. Americans believe that abortion ought to be made more rare. Republicans who heard and understood this message from the election of 1994 will survive to run again and again--as will American children yet unborn.

Mr. Meyer is an associate professor of philosophy at Whitworth College in Spokane and a fellow of the Discovery Institute in Seattle. Mr. DeWolf, who has served as a legal advisor to many pro-life groups, is an associate professor at Gonzaga Law School in Spokane.

Discovery Institute is a non-profit, non-partisan, public policy think tank headquartered in Seattle and dealing with national and international affairs. For more information, browse Discovery's Web site at: http://www.discovery.org/.