Over the past week, I've had an online exchange with several pro-choice bloggers about the Kermit Gosnell case. Gosnell, a Philadelphia abortionist, has been charged with butchering viable babies, causing a woman's death, and endangering other patients. A grand jury report details his alleged crimes. Initially, I cited the report as a challenge to some feminist writers (I called them pro-choice absolutists) on the ethics and legality of post-viability abortions. In response, various bloggers challenged me on other aspects of the case.
On Monday, I answered the bloggers' questions and challenged them to answer mine. The question I put to them was this:
Gosnell stands charged with abortions beyond the 24-week gestational limit prescribed by Pennsylvania law. … I agree with you on most abortion policy questions. Contraception or abstinence is best, emergency contraception is next best, early abortion is next best, and we should make these options more accessible, not less. But we'll still be left with some women who, for no medical reason, have run out the clock, even to the point of viability. Should their abortion requests be granted anyway?
Several of these writers, to their great credit, have taken up the challenge. So have others who didn't have to answer the question but took it on anyway. Here are their answers.
1. Yes, says Ann Furedi:
I'm proud to be an absolutist on this issue! I do absolutely believe in women's right to make abortion decisions. It's always struck me that being pro-choice is a bit like being pregnant: you either are or you're not! You can no more be "a bit" pro-choice than you can be a bit pregnant. … The question is: Do we think that women should have leave to make moral decisions about their abortions? Or do we only think that when we are "comfortable" with the decision they make? I believe the former … I don't [think the Gosnell] case speaks to the morality of later abortion or the moral status of the fetus at all. However, it speaks volumes about Saletan's understanding of moral philosophy that he clearly thinks that it does.
2. Yes, says Pema Levy:
For the purposes of Saletan's question, I think we're referring to late-term abortions as post-viability abortions, which means that women would be required to continue their pregnancy for 3-4 months. For me, the answer is yes, late-term abortions should be legal, even if medical complications are out of the picture. If a woman decides to have a late-term abortion, which often means traveling across state lines and spending a lot of money to have it done or submitting to a complicated procedure at a shady clinic like Dr. Gosnell's patients did, then they are obviously making a very serious decision because they feel having an abortion is what they need. Maybe their decision is financial, maybe their marriage has become abusive, and maybe she's a bad, fickle person. But being pro-choice means having the strong belief that women's bodies should not be used in any way against their will. … Dr. Tiller used to wear a pin that said "trust women," and that's a good way to sum up the pro-choice argument for late-term abortions.
3. No, says Jill Filipovic:
No, the charges should not be dropped in the name of women's autonomy. The 24-week limit is Pennsylvania law, and Gosnell should have followed it. … I fall on the side of believing that women should not be legally required to carry pregnancies against their will, which is why I'm pro-choice. But I also understand that there are a variety of interests in protecting fetuses. I think any moral interest or state interest in the fetus's well-being is almost always trumped by the interests of the woman carrying that fetus, but in legislating to strike a balance between those competing interests, it seems fair enough (if not totally ideologically consistent) to outlaw abortion after the point of viability (which is roughly what the 24-week marker does), so long as there are exceptions for the life and health of the woman and so long as abortion is widely accessible early on.
4. Yes, says Scott Lemieux:
The issue is who decides whether or not an abortion is medically necessary. It's possible that the existing exception can be evaded by doctors not operating in good faith. But more stringent regulations (such as requirements for panels of doctors or permitting late-term abortions only to save a woman's life) run the opposite risk: denying women who have a genuine medical need a safe abortion. … I strongly favor erring on the side of trusting women as opposed to giving further authority to doctors. … In Canada, late-term abortions are not legally restricted, and … [as] far as I can tell, there's no evidence that Canadian women get late-term abortions at significantly higher rates … Essentially, absent evidence to the contrary I think the presumption in favor of a woman's decision-making capacity is justified, and further restrictions are likely to do more harm than good.
5. Yes, says Anna North:
As much as I can appreciate the differences between a fetus that might be able to survive outside the womb and one that definitely wouldn't, I'm still not prepared to say that my appreciation of those differences is more important than a woman's individual evaluation of her situation. And so, in answer to Saletan's question, I'd say that I'm in favor of a woman's right to choose, whether it's at 10 weeks, 24, or beyond.
6. No, says Barbara O'Brien:
And if a woman is so ambivalent she can't decide whether to go through with the pregnancy or not, then it has to be made clear that there comes a time that nature will make your decision for you. Frankly, by the time you get to 24 weeks' gestation, it's way too late to "get out of" the pregnancy. By then most of the hormonal and physical challenges of pregnancy have arrived. … Since they are illegal in nearly every state, I question whether any post-viability elective abortions are being performed in the U.S., except in an unlawful operation such as Kermit Gosnell's. To my mind, those of us who support reproductive rights aren't giving anything away by advocating a 24-week limit. …
If all of the barriers and roadblocks to getting early-term abortions disappeared tomorrow, and if all American women had access to medical care, and if it is understood that doctors will be allowed some discretion about what is considered "elective," my preference would be to set the elective limit at some point between 15 and 20 weeks, frankly, although I won't argue with 24 weeks. … So, to the simple question, "Is it OK to abort a viable fetus?" I do wish more reproduction rights advocates could learn to just say no, and be clear about it, and stop fudging. There may be conditions attached to that "no," but it's still no.
For the record, my position is close to O'Brien's. Drawing a legal line at viability strikes me as a no-brainer. I haven't thought much about shortening the legal time frame from viability to 20 or 15 weeks. I'm wary of that for two reasons. First, I think abortion restrictions are a lot uglier in practice than they are in theory. They introduce hypocrisy, deceit, interrogations, amateur home surgery, and moral crudity backed by the force of law. And second, once we start cutting back on the weeks, I'm not sure where the slippery slope ends.
But if a Middle-East-style compromise could be brokered on abortion (which wouldn't satisfy the extremes, but might satisfy the rest of us), my guess is that the most plausible concession on the pro-choice side would be restrictions late in the second trimester. The rationale, from a pro-choice perspective, is that you have a right to choose abortion, but (in view of fetal development) that right is time-limited.
One more thing. Filipovic, in her response, raises another question. She asks me:
If you agree that accessibility and contraception access and education are all key to decreasing the number of second-trimester abortions, why aren't you doing the legwork of advocating for those things, instead of challenging pro-choicers to debate largely theoretical questions whose answers don't have much real-world impact anyway?
And I promise to stay on this topic. I think a pro-life concession on contraception would prevent way more abortions than a pro-choice concession on second-trimester restrictions.