Toward a Compromise on Abortion

The Washington Post writes today about how Roberts is moving the Court. Perhaps now is the time to take this issue outside the Court's purview.

Why Compromise?

Simply put, the controversy over this issue is tearing at the fabric of civil society in this nation. Unless common ground is sought, this is not going to change. This issue, to a large extent, dominates all of the others in the two major parties. Dealing with it intelligently and reaching a solution allows the nation to move on to other pressing problems. Finally, it will deprive those who subsist on this controversy of their fundraising base, which is good for the flock that they fleece with regularity.

Who Compromises Where?

The proper venue for this compromise is the United States Congress. The goal currently embraced by the Right to Life movement is unreachable and ill advised. Overturning Roe v. Wade and sending the matter to the states would further divide this nation into abortion states and police states and would prevent few abortions, as women form police states would travel to abortion states to obtain the procedure or return to self-induced and clandestine procedures. Overturning Roe, as a policy proposal, then fails on both effectiveness and equality grounds. The legal theory which holds that state legislatures should decide this issue also holds that federal supremacy in civil rights for racial and sexual minorities should be ended. To overturn Roe in this way would chip away at that supremacy, which flies in the face of the plain language of the Fourteenth Amendment of the United States Constitution. The right of sexual privacy and even the undue burden test rely on the finding by the Supreme Court in Roe that the unborn are property. To reverse this finding, they must be granted citizenship rights at some stage prior to birth. Only the United States Congress, which is sovereign, has the authority under the Constitution to do this, particularly the Fourteenth Amendment.

Compromise over What?

They key to compromise is to define the question over which the compromise will take place. For the Right to Life side the question is “When does life begin?” This question does not get us very far toward compromise. It is essentially a moral question which can inform the law, but cannot dictate it. Further, if the moral teaching in question relies on moral authority rather than reason alone, it must be relegated to a religious teaching which may not be controlling in American policy. For the Pro-Choice side, the question is “How do we protect women’s health?” This is also the wrong question (we are assuming that if a woman’s life in danger, the child’s life can be forfeited), because once you determine that the child has legal rights and is not property, a balance must be struck between the rights of the child and the rights of the mother. Therefore, the question is, and always has been about when the child is an object of law. One can ask, “When shall the child be granted citizenship?” but that does not really help defuse the issue. There is a better way to state the question to get the needed answer, specifically “At what point in the pregnancy should the parents be able to file a wrongful death suit if the child dies?” As we shall see, this question puts the entire issue into focus, because obviously if the obstetrician can be sued over the wrongful death of the child he should not be allowed to kill it. The converse is also true. If he is not required to save the child, it cannot be the object of law.

This question is inherently better, because it lays bare one of the motivations of the right wing in this issue, its desire to preserve the traditional family and the role of women within it as chattel for child bearing. Most don't actually say this, but some do, which confirms the pro-choice sides deepest suspicions. This is why the debate must shift from morality to legality.

Compromise over When?

The Right to Life movement believes that life begins at conception, echoing papal encyclical Humanae Vitae for what can only be described as political reasons. Of late, in the stem cell research funding controversy, the President’s bioethicist has echoed this stance, even though this does not agree with what standard embryology text books state. Those texts referenced by the Encyclopedia Britannica clearly show that gastrulation is far more important. Prior to gastrulation, the development of the blastocyst is governed entirely by the mother’s DNA in what is called generative development. Twinning can occur prior to gastrulation. Most importantly, non-viable hybrids between species divide until gastrulation, at which point they die. Returning to our central question, there could be no cause for action against an obstetrician for the death of a blastocyst, as it is more common for them to die than to survive. To allow such a cause would lead to either decimation in the profession or attempts to save blastocysts which can never be viable.

The next conceivable marker is the commencement of the fetal heartbeat. This point is attractive, because it mirrors the marker for the end of life, the cessation of cardiac function. The difficulty here is that a large number of embryos naturally miscarry after this point due to fatal mutations or chromosomal abnormalities. In essence, these embryos are better dead and offering the parents a legal remedy would again be counter-productive. It is interesting to note that at least half of the embryos that achieve gastrulation do not survive due to natural causes. Presumably, the same mortality rate could be applied to first trimester abortions, meaning that half of them would have died anyway.

A final marker, before birth, is the development of the lungs. Infants born before this point require prolonged extraordinary and heroic measures to develop. While these measures are often taken with great effect, they should not be considered a requirement. In other words, the failure to provide these measures should not be actionable. This is essentially a standard of viability, although viability as a concept is becoming quite meaningless as technology pushes back what is possible in neonatal care. However, what is possible need not be mandated. The development of lung function is the kind of bright line for in utero development as well. If a child dies prior to this line, it is surely a tragedy, but should not be actionable. If the child dies after this point, the obstetrician should be liable if there were any way to prevent its death.

Compromise over How?

This is the other key question. If we depart from the legalistic model, we can go farther. Now, if a child is aborted after its lungs have developed, this would be considered manslaughter or murder. Before this point, after the first trimester the safest method of abortion would likely be induction of birth with the withholding of respiratory therapy, unless someone wishes to come forward to adopt the child, since the so-called partial birth procedure is now outlawed and the other remaining method for second trimesters is medically riskier for the mother. The more important How is how to prevent abortion in the first place. This is where we depart from criminal sanctions and propose methods to incentivize childbirth. Three proposals come to mind. The first is a broad based refundable tax credit for each child and dependent spouse, with both state and federal credits of $500 per month and a minimum wage of $10 per hour to be paid over and above any credit (this is to prevent the use of the credit as the sole wage). The second is the funding of students with children by the government rather than their parents, so that no teens career is ruined because they choose to have a child. This funding would be provided to the father as well, provided marriage or domestic partnership is entered into. The third is the payment of tuition for all students up to grade fourteen or tech school, with a stipend to be paid to each student as an incentive to finish. After this point, academic students would find an employer who would pay the remainder of the bachelor’s degree plus any graduate education. All of these items take the incentive from abortion, especially the cash payment for children, which will also go a long way toward saving Social Security by encouraging childrearing. This payment is even high enough that a man whose wife has a child conceived outside the marriage, he likely won’t care (and if this amount is too low for this purpose, the rate should be increased). These provisions force the pro-life movement to conform to the Catholic social justice agenda as it wishes to buy into the Church’s reproductive agenda. Any party which adopts it will likely attract those pro-life Catholics who have, of late, joined with the Republicans (although many have returned to the Democratic Party over the mishandling of Operation Iraqi Liberation (OIL)).