The slow and painful death of abortion

2006.03.02 — Culture | Law | Abortion | by Barton Castor

This is part one of a two-part series. Look for part 2: "Is an abortion ban constitutional?"

Now that President Bush has packed the Supreme Court with conservatives, South Dakota has passed a sweeping ban on abortion. It's only a matter of time before Kansas and Texas follow suit, and other predominantly-conservative states won't be far behind. The Supreme Court has already had a test of its stomach for the subject (call it a "supreme ultrasound") in the case of partial-birth abortion v. what actually happens in the real world.

There are two fundamental aspects to the question of abortion. First is the question of when life—and, more important constitutional rights—begin. And the second is the extent of those constitutional rights. Neither of these is an easy matter to settle.

The most obvious point at which we gain constitutional rights is at birth. In practical terms, life pretty much begins at birth. After all, we measure our age from our "birth date" and we get a name only when we are born. But surely a woman has an obligation to the life growing inside her sometime between the time her (legally-married, male) husband rolls over and the time she grunts out a bawler.

In ye olden dayes, abortion was incredibly dangerous (but only marginally more dangerous that actually giving birth), but was occasionally attempted nevertheless. Common law gave the right to life to unborn children upon "the quickening," the time when a baby could be felt to be moving. That's not a bad measure, but medically it's still a little too simple.

Life begins at conception

The most popular position among the pro-life crowd is that life begins at conception. Actually, sperm and eggs are already alive, so maybe life begins before conception and, as the Vatican and Monty Python seem to agree, every sperm is sacred. Of course, your appendix is alive too, until the doctor hacks it out of your body with a knife and callously dumps it in a wastepaper basket, so perhaps life is alone is not enough.

As far as the medical community is concerned, pregnancy doesn't even begin at conception. Pregnancy only occurs when the fertilized egg becomes implanted in the wall of the uterus or something. Prior to that, all you've got is fertilization, and "fertilization begins at conception" isn't very catchy.

Besides, it's hard to imagine that a speck of undifferentiated cells has any rights. This is just the potential for life, and fertilized eggs frequently fail to implant naturally and, if they succeed at implanting, frequently abort naturally.

It's equally hard to imagine that a speck of undifferentiated cells has a soul. That's the religious implication. But nobody conducts a funeral for a lost embryo. If a fire broke out in a clinic and we had to decide whether to save a freezer full of human embryos or an actual live baby, we would choose the live baby every time. A living, breathing, sentient being is far more important than a collection of fertilized eggs. If that's the heart of religious right's pro-life argument, then I have a much better answer to come.

Sometimes, pro-lifers say that "abortion stops a beating heart," which is actually a slightly different argument. This is sometimes true but not for a while after conception. Again, a better answer is to come.

Life begins at viability

In modern US law, abortion is highly limited in the third trimester—that is, after the 24th week of development. That is the time at which medical science suggests that most babies are ready to live outside the womb on their own, altho they're not exactly ready for efficiency apartment life.

Abortions after the 24th week are generally called "late-term" and are illegal pretty much everywhere except in the case of endangerment of the life or health of the (would-be) mother or extreme malformation that would result in a baby that is born live but dies in the maternity ward.

Or is stillborn, but that's not technically an "abortion" because you're not actually "aborting" anything.

This is where partial-birth or "intact dilation and extraction" (IDX) might be performed. Despite what strident pro-lifers would like you to think, nobody uses IDX on healthy babies.

But what about a fetus of 22 or 23 weeks? An almost-baby? Almost-viable? It's kicking, turning, grasping, almost ready for the world. Doesn't a woman have any obligation to such a being?

Life begins at brain life

A logical suggestion is that life begins when the brain sparks to life. The advantage to this scenario is that it is internally consistent with the concept of "brain death." That is, life ends when the brain goes dead, regardless of whether or not the heart is is still pumping. This is something nearly everyone agrees on. It's only logical that, by extension, life begins when the brain becomes active— the genuine "quickening."

My guess is that a moderately clever doctor could cut off your head and route blood from the carotid artery to the jugular vein, and your body would keep breathing and pumping blood indefinitely, assuming that he left the brain stem intact. You could be fed intravenously for years, but you wouldn't be alive in any real sense. So the fact that an embryo has a beating heart is of no account. The Terri Schiavo case made it clear that someone can have a beating heart and even rudimentary movement but a dead brain, apparent to virtually everyone but the self-deluding parents who cobbled together snippets of video to make it appear that she was responsive.

At 9 or 10 weeks, medical science tells us, a developing child has all its major organs forming and a brain that has just sparked to life, and therefore calls it a "fetus" instead of an "embryo." It may still be only an inch-and-a-half long, but it's a sentient being (tho not conscious), and that should give it some rights. From a religious standpoint (and here's my better answer to the above), it is this moment, and not the moment of fertilization that has significance. If anywhere, it is here that the child can be said to be invested with a soul. After all, the soul is freed upon death, which can only mean brain death.

Still, just as we don't let 13-year-olds vote, fetuses shouldn't have all the rights of a fully-born human being. Still, they should have that one crucial right: not to be killed merely for being unwanted.

This argument has practical support from the real world: about 78% of abortions occur before the end of the 10th week of development anyway. Throw in cases where the life of the mother makes later abortion unavoidable or the infant is doomed anyway because of horrible deformations or a later abortion would be performed earlier to fit under the new deadline and you've covered the great majority of real-life abortion cases—and you'll never have to imagine big, healthy, viable-looking babies in dumpsters again because abortions will nearly all involve only tiny inch-and-a-quarter long embryos.

And if you want to force a woman to carry virtually any pregnancy to term, as Christian fundamentalists generally do, then you've got a constitutional question on your hands, not a medical or even metaphysical one. You probably have a moralistic agenda to push because you believe that sex is for making babies and fornicators should be punished for their depravity by raising the children God gives them.

You're in luck. The Constitution supports you.

Look for part 2: "Is an abortion ban constitutional?"

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