THE RIGHT OF ABORTION

EXCEPT in the story of the Emperor's New Clothes, I cannot think of a more startling example of mass refusal to see the obvious than is presented by current attitudes toward the population problem on the one hand and abortion on the other.

For several years, we have heard warnings about the population crisis. Indeed, so concerned are we that there now are voices in the land calling for "compulsory sterilization" and "compulsory birth control," for the withholding of public support for illegitimate children in excess of a certain number, for conditioning welfare monies or parole or whatever on coerced sterilization, and so on. Yet little is done to make sterilization easily available on a voluntary basis, particularly to the poor and underprivileged. Despite the lack of legal strictures against it, it is often withheld by doctors and hospitals from those who need it and want it most. At the same time, there begins to appear on the part of some an alarming readiness to subordinate rights of freedom of choice in the area of human reproduction to governmental coercion.

Notwithstanding all this, we continue to maintain strict antiabortion laws on the books of at least four fifths of our states, denying freedom of choice to women and physicians and compelling the "unwilling to bear the unwanted." Yet, as Doctor Christopher Tietze and Sarah Lewit point out in the Scientific American for January, 1969: "Abortion is still the most widespread...method of fertility control in the modern world." According to experts who participated in a United Nations Conference on World Population in Belgrade in 1965, abortion is indeed the chief method of birth control in the world today, and they estimated that about 30 million pregnancies are purposely terminated by abortion each year. Of these, studies indicate that almost one million are in the United States. Since, however, abortions are still so difficult to obtain, we force the birth of millions more unwanted children every year. If we really want to cut our population growth rate on a voluntary basis, we should make abortion available on a voluntary basis, at least in the early stages of pregnancy. When Japan liberalized its abortion laws some years back, it halved its rate of population growth in a decade.

Population dilemma

I do not recommend abortion as a birth-control method of choice. I merely state that it is in fact the most important single method of birth control in the world today, and to cut down on population growth we should make abortion easy and safe while we continue to develop other and more satisfactory methods of family limitation. In addition to the 5 million women in the United States without access to birth control for whom abortion would seem a matter of right when they want it, there are the uncounted thousands who after conception suffer some disease (like German measles) or discover some defect which makes the birth of a live and healthy baby unlikely, and the many, too, whose contraceptive methods occasionally don't work. As the New York chapter of the National Organization for Women notes in a pamphlet:

"There is no perfect contraceptive. The U.S. Food and Drug Administration reports that the intrauterine devices, one of the most effective contraceptives available today, have a failure rate of 1.5 to 3%. This means that if all married women in the United States could and did use these contraceptives, there would still be about 350,000 to 700,000 unwanted pregnancies a year among married women alone. Even sterilization is not a 100% effective method of contraception; some operations fail. Therefore, in order to insure a complete and thorough birth control program, abortion must be made available as a legal right to all women who request it."

Starting in the mid-1960s, some erosion of the anti-abortion laws began to take place. But these efforts have not been supported by many of the more vocal groups who are trying to do something about excess population growth; to them, compulsory birth control and compulsory sterilization are apparently more palatable than voluntary abortion.

The result is legal chaos--which has been the situation with reference to abortion since it was first made illegal in this country. Contrary to popular belief, the legal strictures against abortion are of comparatively recent origin. Until the early nineteenth century--at common law both in England and in the United States--abortion before quickening was not illegal at all. It became so only in the early 1800s. And according to Professor Cyril Means and others who have studied the problem, the reason for the enactment of the laws was not protection of morals or of the "soul" of the fetus, but rather a reflection of the fact that at the time all surgical procedures were highly risky because of the probability of infection (this was before Lister). Abortions were made illegal for this reason except where they were necessary to save the life of the mother; that is, where the great risk of infection which every operation involved was outweighed by the risk of carrying that particular pregnancy to term. The situation is today reversed; abortion under modern hospital conditions is safer than childbirth.

Nor is there any evidence that abortion involves psychological health hazards. A poll of the American Psychiatric Association in the mid-1960s revealed overwhelming support for more easily available abortions and a conviction that adverse psychological sequelae from abortion are negligible both on an absolute standard and as compared with such sequelae from childbirth and unwanted children.

Though the population experts have not yet aligned themselves on the side of abortion-law reform, something is beginning to happen. Seven states--Arkansas, California, Colorado, Georgia, Maryland, New Mexico, and North Carolina--have amended their laws to permit abortion not only to save life but also to protect the health, mental and physical, of the mother, in cases of rape and incest, and to avert the birth of defective offspring (Governor Reagan forced the omission of this ground in the California law). Many other states have been and are now considering abortion reform or repeal bills but usually without the support of the powerful groups who are backing other forms of population control. The old laws are also beginning to face challenges in the courts and are being attacked on a variety of constitutional grounds.

Who gets help?

The relevant statistics have been widely circulated: for example, of therapeutic--that is, in-hospital--abortions in New York City in the early sixties, the majority of them for "psychiatric" reasons, 93 percent were performed on white patients, 91 percent in private rooms. The ratio of in-hospital abortions to live births in New York City was approximately one to 360 for private patients and something like one to 10,000 in municipal hospitals. At the same time the women whose deaths were associated with abortion in New York City in a typical year were 56 percent black, 23 percent Puerto Rican, and 21 percent white.

The 8000 to 10,000 in-hospital abortions contrast, of course, with the estimated one million performed outside hospitals annually. Probably not much more than one half of these are performed by doctors; the rest by the "kindly neighbor," the "close friend," or the woman herself. Generally speaking, the laws do not distinguish in their prohibitions of abortions between doctors and nondoctors. Moreover, the out-of-hospital abortions performed by doctors are obtained by the same group which accounts for the bulk of the in-hospital abortions: the middle- and upper-income white woman who can afford the hundreds or thousands charged for expert medical service outside the law. And these are the same women who can afford to go to Japan, Sweden, England, or one of the Iron Curtain countries where abortions are legal and where they typically cost something between $10 and $25.

But most of the old laws on abortion remain unchanged on the statute books. In a few states, like Connecticut or Missouri, the law says that the abortion may be performed to save the life of the child as well as that of the mother, although no one is sure what this means. As a matter of fact, no one knows what the laws which permit abortion to save the life of the mother mean. Courts in a number of states have held that the danger to life need not be either "imminent" or "certain." But how "imminent" or "certain"? Is it enough that the pregnancy if it comes to term will seriously damage the mother's health? Or will result in the birth of defective offspring?

Clearly, a number of doctors think the answer to these questions is yes, since abortions, especially on white women with good incomes, are routinely and openly performed in some hospitals in most states and the prosecuting authorities do nothing about it. Criminal laws like these, the meaning of which people must guess at, are open to constitutional attack on this ground, as the United States Supreme Court has often held with respect to other "vague" prohibitions. There are many other grounds of constitutional challenge as well: the rights of women, rich and poor, black and white, to equal protection of the law--that is, to get proper medical treatment without discrimination on the grounds of race, color, or income; the rights of physicians to do their professional duty in the light of what is known and believed by medical science today; the right of privacy declared by the United States Supreme Court in the Connecticut birth-control case where Sir Justice Goldberg in his concurring opinion stated that compulsory pro- or anti-birth-control laws are equally "totalitarian" and unconstitutional; the right to be free of "cruel and unusual punishment"; and others. Also it may well be that some courts faced with the unconscionable dilemma posed by the abortion laws and unwilling to resort to constitutional grounds, will "interpret" the laws out of existence eventually, as has happened to the federal birth-control laws.

Absolutely excluded

So why do the abortion laws stay on the books? One reason is the apparent inability or unwillingness of those who advocate population limitation to see the connection. (This does not apply to Planned Parenthood-World Population, which in November, 1968, passed resolutions calling for repeal of the abortion laws in support of its declared policy of voluntary parenthood.)

By 1968, almost all the major religious groups in the United States except the Roman Catholic Church were on record in favor of abortion-law reform or repeal. The American Baptist Convention and the Universalist/Unitarian Church came out for total repeal. And public opinion polls demonstrated that a majority of people, including a majority of the Catholics asked about the issue, favored at least some liberalization of the laws. But the opposition of the Catholic Church is potent and well organized. The Church holds that the fetus is "ensouled" at conception. In his encyclical Humanae Vitae in July of 1968, Pope Paul said, "We must once again declare that the direct interruption of the generative process already begun and above all, directly willed and procured abortion, even if for therapeutic reasons, are to be absolutely excluded as licit means of regulating birth."

To this unequivocal statement--which is, of course, not the law in any American state, since all states permit abortion at least to save the life of the mother--the Pope adds an "Appeal to Public Authorities." He says, "To Rulers, who are those principally responsible for the common good, and who can do so much to safeguard moral customs, we say: Do not allow the morality of your people to be degraded; do not permit that by legal means practices contrary to the natural and divine law be introduced into that fundamental cell, the Family....May all responsible public authorities--as some are already doing so laudably--generously revive their efforts." I submit that insofar as this is an appeal to Catholic officials in this country, it must clearly be disregarded, because it is inconsistent with the laws of the land.

By issuing such an "Appeal to Public Authorities," the Pope has placed in a very difficult position those Catholics who occupy public positions in this or in any country where separation of church and state is constitutionally or otherwise basically guaranteed. They must choose, for example, when it comes to abortion for the therapeutic reason even of saving the life of the woman between their obligations to their church and their obligations to their state. This leads to the question whether as a matter of law Catholic doctors and Catholic hospitals which follow the teachings of the Pope are practicing sectarian medicine. If I am right that they are, then they are infringing the American Medical Association's canons of ethics, which prohibit the practice of sectarian medicine:

"In order that a physician may best serve his patients he is expected to exalt the standards of his profession and to extend its sphere of usefulness."

"To the same end, he should not base his practice on an exclusive dogma, or a sectarian system, 'for sects are implacable despots: to accept their thralldom is to take away all liberty from one's action and thought.' A sectarian or cultist as applied to medicine is one who alleges to follow or in his practice follows a dogma, tenet, or principle based on the authority of its promulgator to the exclusion of demonstration and scientific experience."

Richard Cardinal Cushing said some time ago with reference to birth control: "Catholics do not need the support of civil law to be faithful to their own religious convictions and they do not seek to impose by law their moral views on other members of society." Perhaps it is because of their awareness of the impossible legal position the present stand of the Pope forces on Catholics who are lawmakers, law interpreters, or law enforcers, that such leading Catholic legal scholars as Father Robert Drinan, dean of Boston College Law School, have called for total repeal, rather than amendment, of the abortion laws of all states. They claim that since to Catholics all abortions are unacceptable, the state should keep hands off the subject rather than decreeing that some abortions are legal and some not. Catholics should, of course, be allowed to follow their own convictions in this area, but so surely should the rest of us.

To the extent also that doctor and hospital adherents to the Pope's Encyclical are the recipients of public funds, they may be afoul of our First Amendment guarantees of religious freedom and anti-establishment of any church. And finally, if for sectarian reasons they withhold a procedure which in any given situation would be regarded as the proper medical response to the problem presented, they may be guilty of civil and criminal malpractice unless they at least explain to the patient their sectarian reasons for withholding the treatment so that the patient can go elsewhere if she chooses.

It would seem that abortion-law reform--and better, repeal--is an idea whose time has come. It is more than time that it be supported by all those who want to slow down our population growth rate without resorting to coercion or compulsion. As Secretary-General U Thant and many of the UN agencies have repeatedly said, "The opportunity to decide the number and spacing of children is a basic human right." Until such time as we have a perfect contraceptive universally available and invariably used, voluntary abortion should be infinitely preferred to compulsory sterilization or compulsory birth control, and that may well be the choice.