Though celebrated by anti-abortion advocates across the country, the overturning of Roe v. Wade by no means closed the book on the abortion debate. However, it was a victory for both human rights and federalism. The decision reinforced that the U.S. is a constitutional republic composed of individual states, each with its own agenda. States are now individually empowered to enact abortion legislation anywhere along the human gestation cycle. As a result, there has been a heavy backlash against this policy fragmentation, exemplified by highly publicized stories of traumatic pregnancies in abortion-restrictive states.
One story at the forefront of this debate is that of Elizabeth Weller, a Houston native who experienced pre-viable preterm premature rupture of membranes (PPROM) at 18 weeks gestation. In a 2022 NPR article, the writer noted that the complication occurred just weeks before the Dobbs decision. However, a state law was already in place limiting abortion to before the detection of fetal cardiac activity (approximately six weeks). As a result, the appropriate care was delayed due to physician and hospital fears regarding litigation for aborting a fetus after six weeks gestation. In addition, the term “medical emergency” was deemed so vague that it was difficult to decipher what situations would allow for an abortion to be performed legally without fear of legal repercussions.
A common argument against the illegalization of abortion is, “What about abortion in the case of extreme poverty, rape, or the endangerment of the mother’s life?” Advocates for abortion often use these complex cases to bolster their claim that abortion is legitimate health care deserving of enshrinement into federal law. However, though these cases can be both challenging and heartbreaking, they do not warrant the direct and intentional killing of the unborn.
Many in favor of abortion argue that women in extreme poverty should not be forced to have babies. Let us set aside the fact that no one can legally force a woman to become pregnant; however, certain protections should apply once a new life is formed. They cite the financial stress and economic burden that bearing and raising a child would bring, and that abortion should be allowed in these circumstances. Cases of women facing this decision are heartbreaking. We all agree that society should play some role in helping women in these circumstances. However, it is also reasonable to point out the illogical thinking of abortion advocates in these cases. The fair question is, “Would a mother of a two-year-old who finds herself in these circumstances be justified in terminating the life of her child?” If not, then why? Abortion advocates will most likely allude to differences in size, development, location, or independence. There are serious problems with all these distinctions, many of which I have elaborated on in other articles and are beyond the scope of this piece. Another approach to refuting this premise would be to cite the long-held view in criminal law that necessity is not a worthy defense of murder. Queen v. Dudley and Stephens (1884) ruled that someone’s subjective need does not override another’s inherent, objective right to life.
Pregnancy in the case of rape or incest is another commonly used justification for the legalization of abortion. However, according to the Guttmacher Institute, only about 1.5 percent of abortions yearly are sought due to rape or incest. Any woman who experiences these atrocious bodily violations should receive all the sympathy, love, and understanding we can provide. Unfortunately, no action will undo the violence committed against these women. In these instances, a question for those in favor of abortion would be, “If your father committed a crime, would it be fair for you, his child, to receive the death penalty?” If our law system does not deem a rapist eligible for the death penalty, why should we subject the innocent product of his violation to the death penalty?
Finally, the most often used hard case for enshrining abortion would be to preserve the mother’s health. Let us set aside how extremely vague this categorization is. Once again, as for rape or incest, these cases are pretty rare. Many obstetricians have reported never encountering a medical situation where abortion was imperative in preserving the mother’s health, Dr. C. Everett Koop most famously. We must remember that two patients are present during these “emergency” situations. We can use the principle of double effect in addressing these problematic instances where the mother’s life may be in danger.
First introduced by Thomas Aquinas, the principle of double effect is often used to “explain the permissibility of an action that causes serious harm, such as the death of a human being, as a side effect of promoting some good end. According to the principle of double effect, sometimes it is permissible to cause a harm as a side effect (or “double effect”) of bringing about a good result even though it would not be permissible to cause such a harm as a means to bringing about the same good end.” The principle of double effect requires that at least three conditions be met:
- that the action in itself from its very object be good or at least indifferent
- that the good effect and not the evil effect be intended
- that the good effect be not produced by means of the evil effect
The above logic only applies to situations where the mother’s life is actually in danger. It does not include instances where comfort, happiness, or mental health preservation is at risk. A typical example is a pregnant woman diagnosed with aggressive uterine or cervical cancer before fetal viability. A physician could reasonably treat the cancer by removing the uterus while foreseeing but not intending the unborn child’s death. This act is in direct opposition to intentionally harming the unborn human. Per David Solomon in the Encyclopedia of Ethics, “The principle disallows cases… in which a craniotomy (the crushing of the fetus’s skull) is required to preserve a pregnant woman’s life, on the grounds that here a genuine evil, the death of the fetus, is ‘directly’ intended.” Cases like this are gut-wrenching and uncomfortable, but there is a way to approach these situations without relying on ending one life to save another. Physicians and hospitals who fear litigation for treating medical emergencies during pregnancy would be better served to utilize this principle in lieu of delaying treatment.
Complex cases like the ones mentioned above are often exploited to justify attempts to enshrine abortion into American law. Yet, I often wonder why these cases are used, as they make up a tiny minority of abortions in the U.S. and worldwide. Why are these cases used to justify millions of elective, nonemergent abortions? Move beyond intellectual dishonesty and realize what happens during an abortion, the loss of human life. To quote Madeleine Kearns in National Review, “The occupant of the womb is undeserving of violent death on either side of her mother’s cervix.” Would those who use these cases to justify abortion be willing to ban all other types of abortion? If not, then this is just an effort to invoke emotion at the expense of common sense.
Michael McCutchen is a family physician.