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Following the leak of a draft decision by the Supreme Court that would overturn Roe v. Wade, the Medical School’s Louise King discusses how the potential ruling might affect providers.

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How a bioethicist and doctor sees abortion

Alvin Powell

Harvard Staff Writer

Her work touches questions we can answer and questions we can’t. But her main focus is elsewhere: ‘the patient in front of me.’

With the leak Monday of a draft decision by the Supreme Court that would overturn Roe v. Wade, the future of abortion in the U.S. has been a highly charged topic of conversation all week. Doctors are among those wondering what’s next. Louise King is an assistant professor of obstetrics, gynecology, and reproductive biology at Harvard Medical School and a Brigham and Women’s Hospital physician whose practice includes abortion services. King, who is also the director of reproductive bioethics for the Center for Bioethics at the Medical School, spoke with the Gazette about ethical dimensions of abortion and how a ruling against Roe might affect providers.

Louise King

GAZETTE: In the U.S., abortion is framed in broad ethical terms: life versus death, privacy versus government intrusion, etc. From a medical ethics standpoint, what are the important concerns to be balanced on this issue?

KING: I frame the topic in the context of the patient in front of me. In other words, I look primarily to autonomy and beneficence in the context of doing good for the patient. That might mean upholding that person’s choice not to proceed with what is still a very dangerous proposition, namely carrying a pregnancy to term and delivering. If someone says to me, “I’m pregnant and do not wish to be pregnant,” for a multitude of reasons, I support that decision, because the alternative of carrying to term is risky. I want to protect that person’s bodily autonomy. From a reproductive justice standpoint, I want to support persons who have uteri in making decisions about when they wish to have a family, how they want that to look, whether they want to have a family at all, in expressing their sexuality, and in all kinds of different things.

I don’t believe that life begins at conception. Among the minority of people in this country who believe that’s the case, some are vocal and aggressive in imposing that belief on others, which may happen with this upcoming decision. But quite a number of students that I meet who believe life begins at conception still don’t believe that they have the right to impose that belief on others. To contextualize what we ask of persons with uteri when we make abortion illegal, it’s helpful to compare instances where we could ask people to undergo very risky procedures to help others. For example, we don’t demand that people give blood. It’s not a big deal and it could save lives every day, but we don’t demand that anybody donate blood or bone marrow. We don’t demand kidney donations, which are less risky than childbirth nowadays.

So we generally don’t ask one human being to give so completely of themselves to another, but we do so when it’s a pregnant person. That, I believe, does not comport with our ethics. But it also doesn’t fully address the concerns of persons who believe life begins at conception. They come to those beliefs honestly, but I think they have to explore them more deeply and figure out whether, even if true — do they hold up to the point where we require somebody to have a forced pregnancy to term? I would say, within my understanding of ethics, no.

“It’s not a big deal and it could save lives every day, but we don’t demand that anybody donate blood or bone marrow. We don’t demand kidney donations, which are less risky than childbirth nowadays.”

GAZETTE: Abortion is one of the most divisive issues in the country. Is the medical profession unified on it one way or another?

KING: That’s hard to say definitively. No study or survey exists to truly quantify this. The American Medical Association and the America College of Obstetricians and Gynecologists say that abortion is health care, and I agree. ACOG is very strong in their wording about supporting the right to access abortion. Unfortunately, only 14 percent of practicing OBGYNs provide abortion care. As a profession, our words and actions don’t match. I think there’s a multitude of reasons for that. One is the stigma associated with providing abortion care in some parts of the country.

I would guess that most providers feel similarly to the majority of Americans — that abortion is health care and should be available. While I’ve met some medical students and practicing physicians in all kinds of disciplines who feel strongly that abortion is unethical, the vast majority that I’ve spoken to feel as I feel: that it’s health care and should be provided.

GAZETTE: A big part of the debate over the decades has centered on viability. Is this an issue for science to determine? Is it an issue for society? Is it an issue for religion?

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KING: I don’t think that science can tell us definitively when life begins. Life is a broad term and includes a variety of living entities. I don’t think that religion can define it because we have freedom of religion and religions see this differently. Rabbis will explain that in the Torah, it’s very clear that an embryo is simply an extension of a woman’s body, like a limb, and should not be considered another person until birth. The leaked decision presumes that one version of Christianity’s assessment of this prevails, which seems to violate our understanding of freedom of religion in this country.

Ultimately, “when life begins” isn’t the right question because it’s unanswerable. The question then must be: How do we as a society come up with a compromise that upholds the autonomous rights of the persons in front of us who may become pregnant, who may have excessive risks associated with a pregnancy, or who may simply not wish to be pregnant, that also observes whatever our society’s agreed-upon understanding is of when a protected entity exists.

I think Massachusetts absolutely gets it right. If you read the Roe Act : Abortion is allowed for any reason in the first and second trimesters, and then abortion for medical reasons or lethal fetal anomalies can extend into the third trimester with careful consideration between patient and medical teams. To me, that is an exceptionally well-thought-out compromise. This is a societal decision. It shouldn’t be made by a minority of persons based on their narrow definition of “when life begins.”

GAZETTE: If something like the leaked draft decision emerges, is there a potential for medical providers to get caught in the middle?

KING: Overturning Roe would turn the question over to the states. That would mean that those providers who exist within the states that are clearly going to go forward with legislation to outlaw abortion would be in dire situations. In Massachusetts, we could provide the care we’re already providing and would expect people to travel from out of state to us. I don’t think that the long-arm statutes would reach a provider here, that somebody could come after me from Texas if somebody traveled from Texas to me and I provided care. But if I traveled to Texas, for a conference, it might. Legal experts aren’t sure.

GAZETTE: Have you ever been threatened because you’ve offered abortions?

KING: I haven’t, but many of my colleagues have. I did my training in Texas, so I lived a long time in the South. I’ve not been threatened directly, but spoken sternly to by many people who disagreed with me. I mentioned earlier that there are plenty of people who believe life begins at conception but who do not feel they should impose their viewpoints on others — those are people I met in Texas and Louisiana. There are a lot of people like that, but they can’t speak up for fear of being ostracized. The sense that I have through all the conversations I’ve had over many years is that we are all talking past each other. You started off by saying this is a topic that divides our country, but it doesn’t. The vast majority of people are settled on having abortion as an option, having contraception as an option, and having sex education available. There’s a group of politicians who make it appear that we’re divided and build their political careers off of that. It’s incredibly disheartening and unethical for them to do so.

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• America’s Abortion Quandary

2. Social and moral considerations on abortion

Table of contents.

• Abortion at various stages of pregnancy 
• Abortion and circumstances of pregnancy 
• Parental notification for minors seeking abortion
• Penalties for abortions performed illegally 
• Public views of what would change the number of abortions in the U.S.
• A majority of Americans say women should have more say in setting abortion policy in the U.S.
• How do certain arguments about abortion resonate with Americans?
• In their own words: How Americans feel about abortion 
• Personal connections to abortion 
• Religion’s impact on views about abortion
• Acknowledgments
• The American Trends Panel survey methodology

Relatively few Americans view the morality of abortion in stark terms: Overall, just 7% of all U.S. adults say abortion is morally acceptable in all cases, and 13% say it is morally wrong in all cases. A third say that abortion is morally wrong in  most  cases, while about a quarter (24%) say it is morally acceptable most of the time. About an additional one-in-five do not consider abortion a moral issue.

There are wide differences on this question by political party and religious affiliation. Among Republicans and independents who lean toward the Republican Party, most say that abortion is morally wrong either in most (48%) or all cases (20%). Among Democrats and Democratic leaners, meanwhile, only about three-in-ten (29%) hold a similar view. About four-in-ten Democrats say abortion is morally  acceptable  in most (32%) or all (11%) cases, while an additional 28% say abortion is not a moral issue. 

White evangelical Protestants overwhelmingly say abortion is morally wrong in most (51%) or all cases (30%). A slim majority of Catholics (53%) also view abortion as morally wrong, but many also say it is morally acceptable in most (24%) or all cases (4%), or that it is not a moral issue (17%). And among religiously unaffiliated Americans, about three-quarters see abortion as morally acceptable (45%) or not a moral issue (32%).

There is strong alignment between people’s views of whether abortion is morally wrong and whether it should be illegal. For example, among U.S. adults who take the view that abortion should be illegal in all cases without exception, fully 86% also say abortion is always morally wrong. The prevailing view among adults who say abortion should be legal in all circumstances is that abortion is not a moral issue (44%), though notable shares of this group also say it is morally acceptable in all (27%) or most (22%) cases. 

Most Americans who say abortion should be illegal with some exceptions take the view that abortion is morally wrong in  most  cases (69%). Those who say abortion should be legal with some exceptions are somewhat more conflicted, with 43% deeming abortion morally acceptable in most cases and 26% saying it is morally wrong in most cases; an additional 24% say it is not a moral issue. 

The survey also asked respondents who said abortion is morally wrong in at least some cases whether there are situations where abortion should still be legal  despite  being morally wrong. Roughly half of U.S. adults (48%) say that there are, in fact, situations where abortion is morally wrong but should still be legal, while just 22% say that whenever abortion is morally wrong, it should also be illegal. An additional 28% either said abortion is morally acceptable in all cases or not a moral issue, and thus did not receive the follow-up question.

Across both political parties and all major Christian subgroups – including Republicans and White evangelicals – there are substantially more people who say that there are situations where abortion should still be  legal  despite being morally wrong than there are who say that abortion should always be  illegal  when it is morally wrong.

Asked about the impact a number of policy changes would have on the number of abortions in the U.S., nearly two-thirds of Americans (65%) say “more support for women during pregnancy, such as financial assistance or employment protections” would reduce the number of abortions in the U.S. Six-in-ten say the same about expanding sex education and similar shares say more support for parents (58%), making it easier to place children for adoption in good homes (57%) and passing stricter abortion laws (57%) would have this effect. 

While about three-quarters of White evangelical Protestants (74%) say passing stricter abortion laws would reduce the number of abortions in the U.S., about half of religiously unaffiliated Americans (48%) hold this view. Similarly, Republicans are more likely than Democrats to say this (67% vs. 49%, respectively). By contrast, while about seven-in-ten unaffiliated adults (69%) say expanding sex education would reduce the number of abortions in the U.S., only about half of White evangelicals (48%) say this. Democrats also are substantially more likely than Republicans to hold this view (70% vs. 50%). 

Democrats are somewhat more likely than Republicans to say support for parents – such as paid family leave or more child care options – would reduce the number of abortions in the country (64% vs. 53%, respectively), while Republicans are more likely than Democrats to say making adoption into good homes easier would reduce abortions (64% vs. 52%).

Majorities across both parties and other subgroups analyzed in this report say that more support for women during pregnancy would reduce the number of abortions in America.

More than half of U.S. adults (56%) say women should have more say than men when it comes to setting policies around abortion in this country – including 42% who say women should have “a lot” more say. About four-in-ten (39%) say men and women should have equal say in abortion policies, and 3% say men should have more say than women. 

Six-in-ten women and about half of men (51%) say that women should have more say on this policy issue. 

Democrats are much more likely than Republicans to say women should have more say than men in setting abortion policy (70% vs. 41%). Similar shares of Protestants (48%) and Catholics (51%) say women should have more say than men on this issue, while the share of religiously unaffiliated Americans who say this is much higher (70%).

Seeking to gauge Americans’ reactions to several common arguments related to abortion, the survey presented respondents with six statements and asked them to rate how well each statement reflects their views on a five-point scale ranging from “extremely well” to “not at all well.” 

The list included three statements sometimes cited by individuals wishing to protect a right to abortion: “The decision about whether to have an abortion should belong solely to the pregnant woman,” “If legal abortions are too hard to get, then women will seek out unsafe abortions from unlicensed providers,” and “If legal abortions are too hard to get, then it will be more difficult for women to get ahead in society.” The first two of these resonate with the greatest number of Americans, with about half (53%) saying each describes their views “extremely” or “very” well. In other words, among the statements presented in the survey, U.S. adults are most likely to say that women alone should decide whether to have an abortion, and that making abortion illegal will lead women into unsafe situations.

The three other statements are similar to arguments sometimes made by those who wish to restrict access to abortions: “Human life begins at conception, so a fetus is a person with rights,” “If legal abortions are too easy to get, then people won’t be as careful with sex and contraception,” and “If legal abortions are too easy to get, then some pregnant women will be pressured into having an abortion even when they don’t want to.” 

Fewer than half of Americans say each of these statements describes their views extremely or very well. Nearly four-in-ten endorse the notion that “human life begins at conception, so a fetus is a person with rights” (26% say this describes their views extremely well, 12% very well), while about a third say that “if legal abortions are too easy to get, then people won’t be as careful with sex and contraception” (20% extremely well, 15% very well).

When it comes to statements cited by proponents of abortion rights, Democrats are much more likely than Republicans to identify with all three of these statements, as are religiously unaffiliated Americans compared with Catholics and Protestants. Women also are more likely than men to express these views – and especially more likely to say that decisions about abortion should fall solely to pregnant women and that restrictions on abortion will put women in unsafe situations. Younger adults under 30 are particularly likely to express the view that if legal abortions are too hard to get, then it will be difficult for women to get ahead in society.

In the case of the three statements sometimes cited by opponents of abortion, the patterns generally go in the opposite direction. Republicans are more likely than Democrats to say each statement reflects their views “extremely” or “very” well, as are Protestants (especially White evangelical Protestants) and Catholics compared with the religiously unaffiliated. In addition, older Americans are more likely than young adults to say that human life begins at conception and that easy access to abortion encourages unsafe sex.

Gender differences on these questions, however, are muted. In fact, women are just as likely as men to say that human life begins at conception, so a fetus is a person with rights (39% and 38%, respectively).

Analyzing certain statements together allows for an examination of the extent to which individuals can simultaneously hold two views that may seem to some as in conflict. For instance, overall, one-in-three U.S. adults say that  both  the statement “the decision about whether to have an abortion should belong solely to the pregnant woman” and the statement “human life begins at conception, so the fetus is a person with rights” reflect their own views at least somewhat well. This includes 12% of adults who say both statements reflect their views “extremely” or “very” well. 

Republicans are slightly more likely than Democrats to say both statements reflect their own views at least somewhat well (36% vs. 30%), although Republicans are much more likely to say  only  the statement about the fetus being a person with rights reflects their views at least somewhat well (39% vs. 9%) and Democrats are much more likely to say  only  the statement about the decision to have an abortion belonging solely to the pregnant woman reflects their views at least somewhat well (55% vs. 19%).

Additionally, those who take the stance that abortion should be legal in all cases with no exceptions are overwhelmingly likely (76%) to say only the statement about the decision belonging solely to the pregnant woman reflects their views extremely, very or somewhat well, while a nearly identical share (73%) of those who say abortion should be  illegal  in all cases with no exceptions say only the statement about human life beginning at conception reflects their views at least somewhat well.

When asked to describe whether they had any other additional views or feelings about abortion, adults shared a range of strong or complex views about the topic. In many cases, Americans reiterated their strong support – or opposition to – abortion in the U.S. Others reflected on how difficult or nuanced the issue was, offering emotional responses or personal experiences to one of two open-ended questions asked on the survey. 

One open-ended question asked respondents if they wanted to share any other views or feelings about abortion overall. The other open-ended question asked respondents about their feelings or views regarding abortion restrictions. The responses to both questions were similar. 

Overall, about three-in-ten adults offered a response to either of the open-ended questions. There was little difference in the likelihood to respond by party, religion or gender, though people who say they have given a “lot” of thought to the issue were more likely to respond than people who have not. 

Of those who did offer additional comments, about a third of respondents said something in support of legal abortion. By far the most common sentiment expressed was that the decision to have an abortion should be solely a personal decision, or a decision made jointly with a woman and her health care provider, with some saying simply that it “should be between a woman and her doctor.” Others made a more general point, such as one woman who said, “A woman’s body and health should not be subject to legislation.” 

About one-in-five of the people who responded to the question expressed disapproval of abortion – the most common reason being a belief that a fetus is a person or that abortion is murder. As one woman said, “It is my belief that life begins at conception and as much as is humanly possible, we as a society need to support, protect and defend each one of those little lives.” Others in this group pointed to the fact that they felt abortion was too often used as a form of birth control. For example, one man said, “Abortions are too easy to obtain these days. It seems more women are using it as a way of birth control.” 

About a quarter of respondents who opted to answer one of the open-ended questions said that their views about abortion were complex; many described having mixed feelings about the issue or otherwise expressed sympathy for both sides of the issue. One woman said, “I am personally opposed to abortion in most cases, but I think it would be detrimental to society to make it illegal. I was alive before the pill and before legal abortions. Many women died.” And one man said, “While I might feel abortion may be wrong in some cases, it is never my place as a man to tell a woman what to do with her body.” 

The remaining responses were either not related to the topic or were difficult to interpret.

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Nancy Jecker on abortion and bioethics

Nancy Jecker discusses how four principles guide a bioethical approach to abortion care: respecting a patents’ autonomy, nonmaleficence, beneficence and justice. She examines how these four principles are used by doctors and bioethicists, and how settling legal controversies regarding abortion will require reaching moral consensus.

The ethical principle of autonomy states that patients are entitled to make decisions about their own medical care when able. The American Medical Association’s Code of Medical Ethics recognizes a patient’s right to “receive information and ask questions about recommended treatments” in order to “make well-considered decisions about care.” Respect for autonomy is enshrined in laws governing informed consent, which protect patients’ right to know the medical options available and make an informed voluntary decision. Some bioethicists regard respect for autonomy as lending firm support to the right to choose abortion, arguing that if a pregnant person wishes to end their pregnancy, the state should not interfere. According to one interpretation of this view, the principle of autonomy means that a person owns their body and should be free to decide what happens in and to it. Abortion opponents do not necessarily challenge the soundness of respecting people’s autonomy, but may disagree about how to interpret this principle. Some regard a pregnant person as “two patients” – the pregnant person and the fetus. One way to reconcile these views is to say that as an immature human being becomes “increasingly self-conscious, rational and autonomous it is harmed to an increasing degree,” as philosopher Jeff McMahan writes. In this view, a late-stage fetus has more interest in its future than a fertilized egg, and therefore the later in pregnancy an abortion takes place, the more it may hinder the fetus’s developing interests. In the U.S., where 92.7% of abortions occur at or before 13 weeks’ gestation, a pregnant person’s rights may often outweigh those attributed to the fetus. Later in pregnancy, however, rights attributed to the fetus may assume greater weight. Balancing these competing claims remains contentious.

Read the entire article on The Conversation, “ Abortion and bioethics: Principles to guide U.S. abortion debates .”

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• Volume 27, Issue suppl 2
• The new ethics of abortion
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• Joan Greenwood
• British Pregnancy Advisory Service, London

https://doi.org/10.1136/jme.27.suppl_2.ii2

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The papers included in this supplement were first given at a meeting, The New Ethics of Abortion, organised by the British Pregnancy Advisory Service (BPAS) in Senate House at the University of London on 21 February 2000.

The British Pregnancy Advisory Service is primarily a provider of abortion services. Each year, the organisation provides almost 50,000 abortions, more than half of which are performed on behalf of the National Health Service (NHS), which means they are free of charge to women. We are also a major source of comment to the media on issues relating to unwanted pregnancy and so we frequently face the challenge of debating those who insist that abortion is morally wrong and medically unjustifiable.

The New Ethics of Abortion was organised to provide a forum in which pro-choice and anti-choice perspectives could be discussed in an atmosphere of mutual respect. We are aware that advances in technology and changed perspectives on rights—of men, of children, of the fetus, of the disabled—can have an impact on the abortion debate. We are aware that these issues are hotly contested by both those who support and those who oppose the liberal provision of abortion, and we feel that as providers of abortion care to so many women we have an important part to play. The staff at BPAS consultation centres and clinics understand abortion from the perspective of women—not women campaigners (who have their own political agenda)—but women with problem pregnancies in need of abortion care. This is a perspective that is often pushed aside when abortion is regarded as an abstract political or ethical issue.

Abortion has become accepted as a part of British life. Since the 1967 Abortion Act became law in April 1968 more than five million women have benefited from safe, legal abortion in Britain. And, for every woman who has benefited directly from legal abortion, there are thousands more who have been able to enjoy sex, confident that an unwanted pregnancy need not lead to unwanted motherhood.

The British abortion law, which underpins all the contemporary debates, is a complex piece of legislation with a complex history.

David Steel's Bill, which received royal assent on 27 October 1967, made abortion legal in Britain when two doctors agreed in good faith (a) that the continuance of the pregnancy would involve risk to the life of the pregnant women, or risk of injury to the physical or mental health of the pregnant woman or of any existing children in her family, greater than if the pregnancy were terminated; or (b) that there was a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. The law allowed doctors to take into account the woman's “actual or reasonably foreseeable environment”.

Pro-choice critics of the 1967 Abortion Act, which still regulates abortion practice, correctly identify that the legislation did not grant women the right to end an unwanted pregnancy. The act gives doctors the power to decide whether there are medical grounds to support a woman's request for abortion. The law does not allow a woman to end her pregnancy simply because she wants to; there must be evidence that the pregnancy would threaten her physical or mental health or that of her children. As a consequence, women are reliant on the opinion of their doctors.

Nevertheless the law, which appears highly restrictive on paper, can be interpreted liberally by doctors who understand that it is detrimental to a woman's health to force her to endure a pregnancy and become a mother against her will. And, because the law has been interpreted in this way, it has met the needs of many women. The vast majority of abortions end unwanted pregnancies and are carried out by doctors who accept that it is damaging to the mental health of a woman to force her to endure a pregnancy against her will. Indeed, it is arguable that without such liberal interpretation the act would have been unworkable.

The 1967 Act was a product of its times. It reflected and codified the concerns of the 1960s and was shaped by the debates and controversies of its day. Public discussion about abortion in the 1960s took place in the context of the social reforms and more liberal attitudes that have come to be regarded as characteristic of that period. The sixties was the period in which, in Britain, capital punishment was abolished, homosexual acts between consenting adults in private were decriminalised and censorship in the theatre ended. Divorce became easier to obtain and the contraceptive pill became available. The Labour government elected in 1964 and re-elected in 1966 had, with some success, sought to promote a consensus that social conflicts and problems could be resolved through welfare policies. Abortion at that time was framed as a welfare policy—a means to help women who, for one reason or another, could not cope with their pregnancy.

In part the Act was a response to the existing reality of abortion outside the law. Estimates as to how many illegal abortions occurred each year vary from 15,000 to 150,000 but there is no dispute that a large number of pregnancies were ended in this way. Many women, especially those from working class communities, relied on “back-street” abortions and traditional ways to induce menstruation with variable success and safety. It was estimated in 1959 that the treatment of spontaneous and induced abortion accounted for one fifth of gynaecological admissions treated within the NHS. 1 However, throughout the 1960s, abortion was increasingly carried out by “respectable” doctors who believed they could defend their actions. Although abortion was illegal, a defence was available if the act was performed, in good faith, for the purpose of preserving the life of the mother. The Bourne judgment of 1938 affirmed that if an abortion was performed because the continuance of the pregnancy would make the woman a “physical or mental wreck” the doctor was “preserving the life of the mother”. 2

Although many doctors still refused to sanction abortion, by 1967 it has been estimated that almost 10,000 abortions a year were being provided by NHS gynaecologists. In the private sector, abortion was emerging as a lucrative source of income for those prepared to exploit desperate women by charging high fees.

The law was, and was perceived to be, unclear, inadequate and in need of reform. Not surprisingly there was some disagreement about what such reform should be. The seminal account, Abortion Law Reformed by Madeleine Simms and Keith Hindell describes in great detail the different expectations individuals and organisations had of David Steel's Bill. 3 Some viewed it as an opportunity to regulate and restrict abortion, perhaps by limiting those who could perform it to consultants, or by limiting where it could be performed to NHS premises. Others saw it as an important clarification of the circumstances in which pregnancies might or might not be ended and yet others as a means to provide caring doctors with protection from prosecution for humane acts that would give women with unwanted pregnancies a chance to regain control of their lives.

The 1967 Abortion Act has served women reasonably well for the last three decades. Women still experience many problems obtaining abortion in Britain but these are largely caused by problems in the organisation and funding of services rather than by the law itself. The main difficulty women face is that abortion is still stigmatised and not perceived by some health professionals, doctors, and managers as an essential service that should be available within the NHS. Health authorities rarely meet the local need for abortion, leaving women to face either arbitrary rationing criteria or waiting lists.

Certain elements of the law are irritating and anachronistic. The insistence that two doctors must certify the grounds on which the abortion is performed is needlessly bureaucratic and can cause delays in the assessment process. The absence of clear provision for abortion on request in early pregnancy means that women must justify their need in a way that many find to be degrading and intrusive.

There are, however, some aspects of the law that have been of great benefit to women and their doctors. The British law, unlike that of many countries, does not change the criteria for abortion at 12 weeks so that abortion remains available to protect the woman's health up to 24 weeks. In spite of this greater freedom almost 90 per cent of abortions are performed before 13 weeks and fewer than two per cent take place after 19 weeks. The proportion done in the first three months has tended to rise rather than to fall. The relatively liberal provision after the first trimester has been of enormous benefit for those who would not, for a variety of reasons beyond their control, have been able to take advantage of earlier procedures. The small proportion of second trimester abortions has also provided a clear demonstration to the world that legal provision of late abortion does not mean that large numbers of late abortions will occur.

The social significance of the 1967 Abortion Act, and its benefits to women's lives, can be most easily seen in problems faced by women in Northern Ireland—a section of the UK to which the Abortion Act does not apply. In Northern Ireland abortion is regulated by the statute and case laws that applied to the rest of the UK before the Steel bill was passed. Northern Ireland in the 1990s, however, provides a very different social climate from that of Britain in the 1960s and consequently doctors there interpret the law conservatively. Women in Northern Ireland are forced either to accept unwanted pregnancies or travel to clinics in Britain.

It is an indication of the strength and practicability of the 1967 Act that it has endured over three decades of considerable social change with so little amendment. In 1990, a comprehensive codification of law relating to the embryo and artificially assisted reproduction provided an opportunity for parliament to review the abortion law. Few changes were made. The upper limit for abortions to protect physical or mental health was clarified as 24 weeks but the gestation limit was removed when termination was necessary because the pregnancy threatened the woman's life or would result in grave permanent damage to her health, or when there was a substantial risk that the fetus was seriously abnormal.

Although the law has not changed, however, the debates and discussions on abortion as an issue have. We need to meet the challenge of considering these new issues and deciding their relevance to abortion provision.

As Britain's leading provider of abortion services our work is affected by changes in public and political opinion. We need to understand the contemporary debates and we believe we have an important contribution to make to them. It is in this spirit that the following papers are published.

• ↵ Committee on the Working of the Abortion Act (Lane Committee). Report of the Committee on the Working of the Abortion Act. London: HMSO, 1974: vol 1, para 35.
• ↵ R v Bourne [1938] 3 All ER 615.
• ↵ Simms M, Hindell K. Abortion law reformed . London: Peter Owen, 1971.

Joan Greenwood, OBE, is Chairman of the British Pregnancy Advisory Service, London. BPAS would like to extend grateful thanks to Professor David B Morton, Head of the Centre for Biomedical Ethics, Division of Primary Care, Public and Occupational Health, at the University of Birmingham for his invaluable help in editing the papers included in this supplement.

Read the full text or download the PDF:

Other content recommended for you.

• About abortion in Britain , Journal of Medical Ethics, 2001
• ‘A disastrous blow’: psychiatric risk, social indicators and medical authority in abortion reform in post-war Britain Sarah Crook, Medical Humanities, 2019
• The impact of Northern Ireland’s abortion laws on women’s abortion decision-making and experiences Abigail R A Aiken et al., BMJ Sexual & Reproductive Health, 2019
• About BPAS , Journal of Medical Ethics, 2001
• After 50 years of legal abortion in Great Britain, calls grow for further liberalisation Sally Howard, BMJ, 2017
• Reproductive autonomy and the ethics of abortion Barbara Hewson, Journal of Medical Ethics, 2001
• Using evidence to guide abortion law reform on the Isle of Man Abigail R A Aiken et al., BMJ Sexual & Reproductive Health, 2018
• The “abortion trail” to England from the rest of the British Isles is on rocky ground Sally Howard, BMJ, 2023
• Abortions reach highest ever number in England and Wales Allison Barrett, BMJ, 2005
• The barrier to abortion is politics Ann Furedi, Journal of Family Planning and Reproductive Health Care, 2014

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June 23, 2022

Abortion and bioethics: Principles to guide US abortion debates

by Nancy S. Jecker, The Conversation

The U.S. Supreme Court will soon decide the fate of Roe v. Wade , the landmark 1973 decision that established the nationwide right to choose an abortion. If the court's decision hews close to the leaked draft opinion first published by Politico in May 2022, the court's new conservative majority will overturn Roe.

Rancorous debate about the ruling is often dominated by politics . Ethics garners less attention, although it lies at the heart of the legal controversy. As a philosopher and bioethicist , I study moral problems in medicine and health policy , including abortion.

Bioethical approaches to abortion often appeal to four principles : respect patients' autonomy; nonmaleficence, or "do no harm"; beneficence, or provide beneficial care; and justice. These principles were first developed during the 1970s to guide research involving human subjects . Today, they are essential guides for many doctors and ethicists in challenging medical cases .

Patient autonomy

The ethical principle of autonomy states that patients are entitled to make decisions about their own medical care when able. The American Medical Association's Code of Medical Ethics recognizes a patient's right to " receive information and ask questions about recommended treatments " in order to "make well-considered decisions about care." Respect for autonomy is enshrined in laws governing informed consent , which protect patients' right to know the medical options available and make an informed voluntary decision.

Some bioethicists regard respect for autonomy as lending firm support to the right to choose abortion, arguing that if a pregnant person wishes to end their pregnancy, the state should not interfere. According to one interpretation of this view, the principle of autonomy means that a person owns their body and should be free to decide what happens in and to it .

Abortion opponents do not necessarily challenge the soundness of respecting people's autonomy, but may disagree about how to interpret this principle. Some regard a pregnant person as " two patients "—the pregnant person and the fetus .

One way to reconcile these views is to say that as an immature human being becomes " increasingly self-conscious, rational and autonomous it is harmed to an increasing degree ," as philosopher Jeff McMahan writes. In this view, a late-stage fetus has more interest in its future than a fertilized egg, and therefore the later in pregnancy an abortion takes place, the more it may hinder the fetus's developing interests. In the U.S., where 92.7% of abortions occur at or before 13 weeks' gestation , a pregnant person's rights may often outweigh those attributed to the fetus. Later in pregnancy, however, rights attributed to the fetus may assume greater weight. Balancing these competing claims remains contentious.

Nonmaleficence and beneficence

The ethical principle of "do no harm" forbids intentionally harming or injuring a patient. It demands medically competent care that minimizes risks. Nonmaleficence is often paired with a principle of beneficence, a duty to benefit patients. Together, these principles emphasize doing more good than harm .

Minimizing the risk of harm figures prominently in the World Health Organization's opposition to bans on abortion because pregnant people facing barriers to abortion often resort to unsafe methods, which represent a leading cause of avoidable maternal deaths and morbidities worldwide .

Although 97% of unsafe abortions occur in developing countries , developed countries that have narrowed abortion access have produced unintended harms. In Poland , for example, doctors fearing prosecution have hesitated to administer cancer treatments during pregnancy or remove a fetus after a pregnant person's water breaks early in the pregnancy, before the fetus is viable. In the U.S., restrictive abortion laws in some states, like Texas, have complicated care for miscarriages and high-risk pregnancies , putting pregnant people's lives at risk.

However, Americans who favor overturning Roe are primarily concerned about fetal harm. Regardless of whether or not the fetus is considered a person, the fetus might have an interest in avoiding pain. Late in pregnancy, some ethicists think that humane care for pregnant people should include minimizing fetal pain irrespective of whether a pregnancy continues. Neuroscience teaches that the human capacity to experience feeling or sensation requires consciousness, , which develops between 24 and 28 weeks gestation.

Justice, a final principle of bioethics, requires treating similar cases similarly. If the pregnant person and fetus are moral equals, many argue that it would be unjust to kill the fetus except in self-defense, if the fetus threatens the pregnant person's life. Others hold that even in self-defense, terminating the fetus's life is wrong because a fetus is not morally responsible for any threat it poses .

Yet defenders of abortion point out that even if abortion results in the death of an innocent person, that is not its goal. If the ethics of an action is judged by its goals, then abortion might be justified in cases where it realizes an ethical aim, such as saving a woman's life or protecting a family's ability to care for their current children. Defenders of abortion also argue that even if the fetus has a right to life, a person does not have a right to everything they need to stay alive . For example, having a right to life does not entail a right to threaten another's health or life, or ride roughshod over another's life plans and goals.

Justice also deals with the fair distribution of benefits and burdens. Among wealthy countries, the U.S. has the highest rate of deaths linked to pregnancy and childbirth. Without legal protection for abortion, pregnancy and childbirth for Americans could become even more risky. Studies show that women are more likely to die while pregnant or shortly thereafter in states with the most restrictive abortion policies .

Minority groups may have the most to lose if the right to choose abortion is not upheld because they utilize a disproportionate share of abortion services . In Mississippi, for example, people of color represent 44% of the population, but 81% of those receiving abortions . Other states follow a similar pattern, leading some health activists to conclude that "abortion restrictions are racist."

Other marginalized groups, including low-income families, could also be hard hit by abortion restrictions because abortions are expected to get pricier .

Politics aside, abortion raises profound ethical questions that remain unsettled, which courts are left to settle using the blunt instrument of law. In this sense, abortion " begins as a moral argument and ends as a legal argument ," in the words of law and ethics scholar Katherine Watson .

Putting to rest legal controversies surrounding abortion would require reaching moral consensus. Short of that, articulating our own moral views and understanding others' can bring all sides closer to a principled compromise .

Provided by The Conversation

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35 Abortion and Public Health Ethics

Mahmoud F. Fathalla, MD, PhD, Professor, Department of Obstetrics and Gynecology, Assiut University School of Medicine, Assiut, Egypt

• Published: 11 February 2019
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There is an ethical imperative to take public health action to eliminate the global problem of unsafe abortion. The moral obligation is dictated by the magnitude of the problem, the health inequities and social injustices that result from lack of access to safe abortion, the voices of women calling for action, and an international consensus recognizing unsafe abortion as a global health problem. The availability of public health interventions and the cost savings associated with fewer abortion complications reinforce the obligation to address unsafe abortion. Public health actions include reducing the need for abortion through family planning, providing safe abortion to the full extent of the law, managing abortion complications, and providing post-abortion care. These actions intersect with morality, religion, law, justice, and human rights. The public health community has a collective social and ethical responsibility to stand beside and behind women as they claim their human right to health.

Unsafe Abortion: A Global Public Health Challenge

Unsafe abortion has been described as a preventable pandemic (Grimes et al., 2006 ). Each year, approximately 25 million abortions worldwide meet the World Health Organization (WHO) definition of “unsafe abortion”: they are performed either by individuals without the necessary skills or in an environment that does not conform to minimum medical standards, or both (WHO, 2017 ). Importantly, unsafe abortion and illegal abortion are not synonyms. Illegal abortion involves terminating, or attempting to terminate, a pregnancy when doing so is against the law. Illegal abortion is often, but not always, unsafe. In many countries where abortion is illegal, for example, private physicians may perform safe abortions for wealthy patients who can afford their high medical fees (Warriner, 2006 ). Also, not all legal abortions are safe. Some developing countries have liberalized their abortion laws, but because their health care systems are inadequate to meet the demand for abortion, women in those countries may go to medically unqualified abortionists for the procedure (Warriner, 2006 ).

The public health rationale for addressing unsafe abortion was first highlighted in 1967 by the World Health Assembly, which declared that “abortions and . . . high maternal and child mortality constitute a serious public health problem in many countries,” warranting international action (WHO, 1967 , 25). In addition to the public health justification for addressing unsafe abortion, there is an ethical imperative to do so as well. The moral obligation is dictated by the magnitude of the health problems caused by unsafe abortion (in terms of prevalence, mortality, and morbidity), the health inequities and social injustices that poor women experience when they cannot access safe abortion, the many women who have called for action, and an international consensus—including statements and guidelines from the WHO—that recognizes unsafe abortion as a global public health problem. The availability of affordable and appropriate public health interventions, coupled with the cost savings from fewer abortion complications, reinforce the ethical imperative to prevent unsafe abortions.

Magnitude of the Problem

The global prevalence of unsafe abortion is staggering. A 2017 study supported by the WHO and the World Bank, among others, reported that each year between 2010 and 2014, approximately 25 percent of all pregnancies globally ended in an induced abortion, which accounts for an estimated 56 million induced (safe and unsafe) abortions each year worldwide during that time period (WHO, 2017 ; Ganatra et al., 2017 ). Of those induced abortions, more than 25 million met the WHO definition of unsafe abortion, and almost all of these (97 percent) occurred in developing countries (WHO, 2017 ).

When performed safely, induced abortion can be markedly safer than childbirth. Even in a developed country like the United States, the risk of death associated with childbirth is reported to be approximately fourteen times higher than that with safe induced abortion; similarly, the overall morbidity associated with childbirth exceeds that associated with safe abortion (Raymond and Grimes, 2012 ).

Unsafe abortion, however, is a significant factor in maternal morbidity and mortality. The major life-threatening complications resulting from unsafe abortion are hemorrhage, infection, and injury to the genital tract and internal organs. In developing countries, about 7 million women are admitted to the hospital each year for complications related to unsafe abortion (WHO, 2017 ; Singh and Maddow-Zimet, 2016 ). Complications of unsafe abortion are also responsible for approximately 47,000 pregnancy-related deaths each year, accounting for 4.7–13.2 percent of all maternal deaths (Say et al., 2014 ). Because stigma and fear of punishment may deter reliable reporting, particularly following illegal abortion procedures, deaths and disabilities resulting from unsafe abortion are probably underestimated. In addition, unsafe abortion can have major emotional, social, and financial costs for women and their families.

Inequity, Injustice, and Women’s Voices

Public health ethics has always concerned itself with equity and social justice in population health. At the global level, unsafe abortion is a glaring inequity. In developed regions, it is estimated that 30 women die as a consequence of unsafe abortion for every 100,000 abortions performed; that number rises to 220 deaths per 100,000 unsafe abortions in developing regions, and 520 deaths per 100,000 unsafe abortions in sub-Saharan Africa (WHO, 2017 ). Mortality from unsafe abortion disproportionately affects women in Africa. While the continent accounts for 29 percent of all unsafe abortions, it sees 62 percent of unsafe-abortion-related deaths (WHO, 2011b ).

Within countries in which abortion is legal but highly restricted, unequal access to safe abortion can result in socially unjust outcomes. While “[u]nsafe abortions threaten the lives of a large number of women” and represent “a grave public health problem,” the Fourth World Conference on Women in Beijing in 1995 noted that “it is primarily the poorest and youngest [women] who take the highest risk” (UN, 1996 , para. 97). Abortions that meet safety requirements can become the privilege of the rich, while poor women have little choice but to resort to unsafe abortions. Young adolescent girls are especially vulnerable to unsafe abortions, because they may delay the procedure to later in their pregnancies, when there often are more legal restrictions on the procedure and fewer skilled providers offering safe abortion (Woog et al., 2015 ).

Recognizing the inequity and injustice associated with unsafe abortion, women at the Beijing Conference called upon “[a]ll governments and relevant intergovernmental and non-governmental organizations . . . to strengthen their commitment to women’s health, to deal with the health impact of unsafe abortion as a major public health concern” (UN, 1996 , para.106, k).

International Consensus

In 1994 the world government community at the United Nations International Conference on Population and Development recognized unsafe abortion as a major public health concern (UNFPA, 1994 , para. 8.25). A decade later, the World Health Assembly adopted a global reproductive health strategy in which eliminating unsafe abortion is a key component (WHO, 2004 ). The strategy is stated to be “grounded in international human rights treaties and global consensus declarations that call for the respect, protection, and fulfilment of human rights” to health, including “the right of women to have control over, and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, . . . the right of access to relevant health information, and the right of every person to enjoy the benefits of scientific progress and its applications” (WHO, 2012 , sec. 1.2). To realize these rights, and to save women’s lives, the WHO strategy calls on the international community to address the programmatic, legal, and policy aspects of providing safe abortion worldwide.

Preventing Unsafe Abortion: The Practical and Economic Rationale

The ethical imperative to address unsafe abortion is further bolstered by practical and economic considerations. A variety of public health actions, including effective contraception services, provision of safe and legal induced abortion, timely management of complications, and provision of post-abortion care are feasible steps toward preventing almost every death and disability caused by unsafe abortion (WHO, 2017 ).

One of the ethical challenges in public health is the rationing of limited resources for different health and disease conditions. In countries that face competing demands for the limited resources their health systems can afford, safe abortion is rarely, if ever, a top priority, and unsafe abortion is thus more likely to become a public health problem. Treating complications of unsafe abortion is costly and can overwhelm health systems in low-income countries (WHO, 2012 ). For example, estimates suggest that the total annual cost to the health system in the developing world for management of serious, post-abortion medical complications that require hospitalization lies between $375 and $838 million, with a central estimate of around $500 million (Vlassoff et al., 2008 ). If the millions of women who currently receive no treatment from a health system for serious, post-abortion complications were to do so, approximately $375 million more would be required each year to cover their care. The cost of long-term morbidities, mainly infertility and chronic reproductive tract infections, may cost many billions of dollars annually. In addition, estimates suggest that women and their families may pay $600 million in out-of-pocket expenses, and developing countries may face economic losses of more than $400 million each year from lower productivity caused by unsafe abortion.

Against this background, it is important to emphasize that safe abortion services are a cost-saving measure. For example, unsafe abortion was estimated to cost the Mexico City health system $2.6 million in 2005, prior to the legalization of abortion (Levin et al., 2009 ). Although studies to document cost savings are needed, it was estimated that with access to safe abortion, the system could potentially save $1.7 million annually, by shifting abortion management from emergency in-patient procedures to routine outpatient procedures as well as use of medical abortion (Levin et al., 2009 ). Eliminating unsafe abortion would result in significant savings that health systems could then conserve and redirect to other urgent public health needs.

Abortion at the Intersection of Morality, Religion, Law, and Human Rights

Abortion has been, and continues to be, a controversial topic in reproductive health (Cook, Dickens, and Fathalla, 2003 ). The ethical obligation of public health to eliminate unsafe abortion must, therefore, consider the ways in which abortion intersects with morality, religion, law, and human rights.

The public debate on the moral status of the human embryo and fetus, as a person requiring protection independent of the mother, remains, and probably will remain, unsettled (Araujo et al., 2015 ; Catlin, 2015 ). Some people believe the fetus lacks personhood status until birth, while others believe it warrants protection as a person from the moment of conception. This debate can have a potential impact on public health policy, which led the American Public Health Association (APHA) to issue a statement renouncing the adoption or misapplication of laws to recognize fetuses as independent of pregnant women (APHA, 2013 ).

Although world religions have not been silent on the question of induced abortion, there is not a unanimous view shared by all religions. Religious perspectives on induced abortion range from very conservative to more permissive, with leniency—where allowed—more likely for early-term abortions (Maguire, 2016 ). There can also be a variety of views within individual religious traditions. From a public health perspective, institutionalized religions may influence laws and policies limiting access to abortion (Marecek, Macleod, and Hoggart, 2017 ).

Because abortion laws and policies vary by country, any global public health efforts to stem unsafe abortions must consider the legal context in which unsafe abortions are occurring. At the start of the twentieth century, abortion was illegal in almost every country of the world. During the second half of the twentieth century, as a part of the social movement for women’s rights, countries that otherwise prohibited abortion began to enact laws that allow abortion on specified grounds. Currently, the exceptions for which abortion is allowed vary widely by country, and may include risk to the woman’s life; risk to her physical and, sometimes, mental health; pregnancy resulting from rape or sexual abuse; serious fetal anomaly; social and economic reasons; and permission by request. The permissibility of abortion on each of those grounds also varies greatly between regions. For example, recent studies report that abortion is permitted upon request in 65 percent of developed countries but only 14 percent of developing countries, and for economic and social reasons in 75 percent of developed countries but only 19 percent of developing countries (Berer, 2017 ).

Where abortion is not against the law, abortion access may still be restricted by legally introduced procedural barriers, such as mandatory and biased counseling requirements, waiting periods, third-party consent and notification requirements, limitations on the range of permissible abortion methods, and limitations on public funding (Finer and Fine, 2013 ). In June 2017, to enhance global and country-specific efforts to address unsafe abortion, the WHO Human Reproduction Programme, in collaboration with the Population Division of the United Nations Department of Economic and Social Affairs, launched the open-access Global Abortion Policies Database (Human Reproduction Programme, 2017 ). The database is a tool that tracks evolving abortion policies by country and is intended to inform policymaking and advocacy to eliminate unsafe abortion.

When prohibitions and restrictions on abortion threaten women’s lives and conflict with their individual liberty, human rights violations may occur. Recognizing women as competent and conscientious decision makers in their own lives, one legal view places abortion as one procedure within a spectrum of services to which women should have safe access as a matter of human rights and social justice (Cook and Dickens, 2003 ). Abortion policies should be geared to respecting, protecting, and fulfilling the human rights of women (WHO, 2012 ). Offering access to safe abortion also recognizes women as competent and conscientious decision-makers in their own lives. A tension in public health ethics may occur, however, when abortion policies appear to contravene human rights, which can occur in two ways.

The first way in which abortion policy can conflict with human rights is when action for a real or perceived public good conflicts with individual liberty. For example, population growth is a legitimate concern, and the state may make voluntary, safe pregnancy termination an option for women. However, human rights “red lines” are crossed when women are forced to terminate wanted pregnancies, as was reported in China during the implementation of its “one-child policy”—a government mandate in effect from 1979 through 2015 to limit families to one child in order to restrain population growth (Howden and Zhou, 2014 ). Human rights were similarly abridged under the authoritarian leadership of Nicolae Ceauşescu in Romania where women were forced to do the opposite under his population-promoting policies; that is, they were compelled to keep unwanted pregnancies for the public good, because the fetus was considered the socialist property of the state, and women who resorted to abortion were viewed as deserters and betrayers (Hord et al., 1991 ).

The second way in which abortion policy can conflict with human rights is when individual liberty conflicts with a perceived public good, as in the case of sex-selective abortion. The availability of ultrasounds and other technologies has enabled parents to detect the sex of a fetus during prenatal screenings. In cultures where son preference prevails, parents may arrange to abort female fetuses. This can result in gender imbalances in the population, which is of increasing concern in some South Asian, East Asian, and Central Asian countries (Fathalla, 1994 ; WHO, 2011a ). The individual liberty to choose sex-selective abortion not only reflects the persistent, low status of women and girls, but it also results in a female deficit that may have damaging effects on societies.

Public Health Actions

Inaction is not an ethical option.

Inaction, by denial or neglect, is not an ethically justifiable response to the global tragedy of unsafe abortion. Denying or neglecting a major health problem does not take it off the ethical radar screen. Whether or not it is wanted by society, abortion is needed by women. They have needed it throughout human history, and they have often risked their health or lives in the process. The oath of Hippocrates, which has at times been taken by those who become physicians, includes an injunction against abortion: “I will not give to a woman a pessary to cause abortion.” However, Hippocrates himself, writing in 400 bce , could not ignore the reality that women nevertheless resort to abortion, often with serious consequences to their health:

When the woman is afflicted with a large wound as a consequence of abortion, or the womb is damaged by strong suppositories, as many women are always doing, doctoring themselves, or when the fetus is aborted and the woman is not purged of the afterbirth, and the wound inflames, closes and is not purged, if she is treated promptly she will be cured but will remain sterile.  (Cited in McLaren, 1990 , 28)

In developed countries, the global public health problem of unsafe abortion may be neglected because it is considered to be only a problem of the poor. In developing countries, the problem may be neglected because it is perceived as a woman’s issue in societies where women are undervalued. It is an inconvenient truth that many “women are not dying because of untreatable conditions . . . [t]hey are dying because societies have yet to make the decision that their lives are worth saving” (Fathalla, 2006 , 409).

Four Components of an Ethical Public Health Strategy

The growing international consensus, as adopted by the United Nations General Assembly, is that unsafe abortion can, and should, be dealt with through a public health strategy with four components: reducing the need for abortion by provision of family planning services, making safe abortion services available to the full extent of the law, offering quality services for management of post-abortion complications, and providing post-abortion care to help avoid repeat abortions (UNFPA, 1999 ).

Reducing the Need for Abortion

Making contraceptive information and services available, accessible, and affordable can reduce women’s need for abortion (Bongaarts and Westoff, 2000 ). In the United States, the availability and appropriate use of affordable, effective, and safe contraception has been associated with decreasing numbers of abortions (Chescheir, 2017 ). Data from countries in Eastern Europe and Central Asia, where induced abortion was once the main method for regulating fertility, show that when the use of modern contraceptive methods increased, the incidence of induced abortion decreased (Westoff, 2005 ). Rates of induced abortion are the lowest in Western Europe, where modern contraceptive use is high and abortion is generally legally available on request (WHO, 2012 ).

Although impressive gains have been made in contraceptive use worldwide, an unmet need for family planning continues to persist. Defined broadly, unmet need for family planning is “the number of women who want to avoid or postpone a pregnancy but are not using any method of contraception” (WHO, 2012 , 23). The WHO ( 2017 ) estimates that 214 million women of reproductive age in developing countries who want to avoid pregnancy are not using a modern contraceptive method. Women will continue to face unintended pregnancies as long as their family planning needs are not met.

Given the reality of gendered power relationships, women are often exposed to unprotected sexual intercourse. This dictates the need for backup methods that women can use in such instances to reduce the need for abortion. Methods for emergency contraception (often referred to as the “morning-after pill”) exist and can be used within a few days of unprotected sexual intercourse to prevent pregnancy. This “retroactive contraception” would also be suited to the particular needs of adolescents, where the decision to contracept may not be made before having sex. Emergency contraception is also greatly needed in refugee situations and cases of sexual assault (Fathalla, 2003 ). It is not enough that services for emergency contraception are made available. Although they cannot be a substitute for regular contraception, information about emergency contraception methods should be widely distributed. A multi-country analysis of the knowledge and use of emergency contraception highlighted the need to broaden the dissemination of information about this service (Palermo, Bleck, and Westley, 2014 ).

Although contraceptive use reduces the number of unintended pregnancies, it does not eliminate the need for access to safe abortion. Data from 2007 on contraceptive prevalence and the typical failure rates of contraceptive methods estimated that approximately 33 million women worldwide experience an accidental pregnancy while using contraception every year (WHO, 2012 ). Some of the accidental pregnancies are terminated by induced abortions, and some end up as unplanned births.

Where Abortion Is Not Against the Law, It Should Be Safe

In 1994 the Programme of Action of the United Nations International Conference on Population and Development stated that in “circumstances where abortion is not against the law, such abortion should be safe” (UNFPA, 1994 , para. 8.25). At a Special Session of the UN General Assembly in June 1999, governments agreed that “in circumstances where abortion is not against the law, health systems should train and equip health-service providers and should take other measures to ensure that such abortion is safe and accessible” (UNFPA, 1999 , para. 63, I, iii).

The legal status of abortion has “no effect on a woman’s need for an abortion, but it dramatically affects her access to safe abortion” (WHO, 2012 , 17). Although laws vary widely by country, they generally permit abortion to save a woman’s life and (in the majority of countries) to preserve the woman’s physical and/or mental health, or on other grounds such as rape or incest and fetal impairment. Safe abortion services, including medication abortion, should be available and accessible for all women, to the full extent of the law. Patients and health care providers should be familiar with conditions where abortion is not against the law. Keeping this information hidden is not ethically justifiable.

The WHO provides and updates technical and policy guidance for safe abortion services (WHO, 2012 ; Fathalla and Cook, 2012 ). There is an ethical responsibility to provide safe abortion services within the limits of the law. Conscientious objection is allowable but should not be used to hide the fear of the stigma associated with abortion (Faúndes, 2017 ). It should be remembered that when women are denied access to legal, safe abortion services, they often resort to an unsafe abortion, and in many cases they suffer its consequences. As asserted by the Committee for the Ethical Aspects of Human Reproduction and Women’s Health of the International Federation of Gynecology and Obstetrics (FIGO, 2012 , 29): “The primary conscientious duty of obstetrician–gynecologists is at all times to treat, or provide benefit and prevent harm, to the patients for whose care they are responsible. Any conscientious objection to treating a patient is secondary to this primary duty.” Pharmacists, too, where abortion is not against the law, cannot ethically justify denying women access to drugs used for medication abortion.

Access to Treatment for Abortion Complications

Health care providers are ethically obliged to provide life-saving medical care to any woman who suffers abortion-related complications, regardless of the legality of abortion in that locality. The WHO ( 2012 ) has developed technical and policy guidance for the provision of these services. From a public health perspective, the practice of extracting confessions from women seeking emergency medical care as a result of illegal abortion is not ethically acceptable. Such a practice puts women’s lives at risk because it prevents women from seeking care. It is also ethically objectionable for a state to conscript health care providers as police informants to report patients who have undergone abortion to relevant authorities. Not only does this practice create a conflict of interests, it also violates patient confidentiality, a central principle of medical ethics and professionalism (WHO, 2017 ).

Post-abortion Care

Following an abortion, women should, at a minimum, receive information and be offered counseling that addresses post-abortion health care, including how to avoid a future abortion. All women should receive contraceptive information and be offered counseling for and methods of post-abortion contraception, including emergency contraception, before leaving the health care facility (WHO, 2015 ).

An Ethical and Social Duty for the Public Health Community

Abortion laws and policies impact women’s lives and health. The public health community has an ethical and social duty to educate legislators, policymakers, health administrators, and the public at large about any adverse health impact of such laws and policies. Examples of such collective public health action include the APHA’s statement “urging federal and state legislatures, law enforcement and judiciary bodies, election commissions, and health care providers to renounce any and all personhood claims or misapplications of child welfare laws that recognize fetuses as persons and infringe on women’s reproductive, constitutional, and human rights” (APHA, 2013 ), as well as the association’s position that “restricted access to abortion violates human rights, precludes reproductive justice, and demands public health intervention” (APHA, 2015 ).

There will always be ideological views opposed to any attempt to interrupt the establishment of pregnancy after an ovum has been fertilized, or even to any form of artificial contraception. Those views are entitled to full respect. They should not, however, be imposed on those who do not share them, nor should they be enforced to adversely impact women’s lives, rights, and health.

Unsafe abortion is a global public health problem requiring worldwide attention and the necessity of a multi-actor response. Members of the health profession should be among those at the forefront. Women trust their health and life to the health profession. They expect more than technicians and services to fix their diseased body, organs, and systems. They expect a health profession that stands beside them and behind them as they claim the human rights voiced by women when they gathered at the Fourth World Conference on Women in Beijing in 1995: “The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence” (UN, 1996 , para. 96).

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WHO (World Health Organization). 2011 a. Preventing Gender-Biased Sex Selection: An OHCHR, UNFPA, UNICEF, UN Women and WHO Interagency Statement (Geneva: WHO). http://www.who.int/reproductivehealth/publications/gender_rights/9789241501460/en/ .

WHO (World Health Organization). 2011 b. Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008 . 6th ed. (Geneva: Department of Reproductive Health and Research). http://www.who.int/reproductivehealth/publications/unsafe_abortion/9789241501118/en/ .

WHO (World Health Organization). 2012 . Safe Abortion: Technical and Policy Guidance for Health Systems . 2nd ed. (Geneva: WHO). http://who.int/reproductivehealth/publications/unsafe_abortion/9789241548434/en/ .

WHO (World Health Organization). 2015 . Health Worker Roles in Providing Safe Abortion Care and Post-abortion Contraception (Geneva: WHO). http://www.who.int/reproductivehealth/publications/unsafe_abortion/abortion-task-shifting/en/ .

WHO (World Health Organization). 2017. “Preventing Unsafe Abortion.” WHO Fact Sheet. http://www.who.int/mediacentre/factsheets/fs388/en/ .

Woog, V. , Singh, S. , Browne, A. , and Philbin, J.   2015 . Adolescent Women’s Need for and Use of Sexual and Reproductive Health Services in Developing Countries (New York: Guttmacher Institute). www.guttmacher.org/pubs/Adolescent-SRHS-Need-Developing-Countries.pdf .

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Reproductive rights in America

For doctors, abortion restrictions create an 'impossible choice' when providing care.

Selena Simmons-Duffin

Now that the Supreme Court has overturned Roe v. Wade, medical ethics experts say many physicians will be caught in a bind: unable to fulfill their professional obligations to provide care to their pregnant patients because of state laws that forbid it.

Physicians take an oath to "do no harm" as part of their medical training. They learn about how to stay up to date, throughout their careers, on the best standards of care for treatment. And they learn about patient privacy and safety, and how patients should have a say in their care based on their values and lived experience.

"The goal is for a patient to make a decision for themselves about what's right," says Dr. Stephanie Mischell , a family physician in Dallas who is a fellow with Physicians for Reproductive Health .

But too often, Mischell says, the conversations she has with pregnant patients have less to do with their values and health and more to do with navigating a labyrinth of legal requirements. "There's a running list of different types of restrictions and bans that exist on abortion care, whether it's pre-viability bans, mandatory waiting periods, mandatory counseling, bans on telehealth – Texas really has all of them," she says.

Under the 6-week abortion restriction in Texas, many patients don't know they're pregnant early enough to get a legal abortion. "Every single day I have a conversation with a patient in which I say, 'Abortion would be a really safe and valid option for you and I'm so sorry that I can't do it here,' " she says.

Two dozen medical groups, including the American Medical Association and the American College of Obstetricians and Gynecologists, laid out the ethical dilemma faced by physicians in an amicus brief to the Supreme Court in the case Dobbs v. Jackson : "The ban forces clinicians to make an impossible choice between upholding their ethical obligations and following the law," the brief reads.

That "impossible choice" has already been a feature of reproductive health care in the South for years, says Dr. Louise King , an obstetrician and gynecologist at Brigham and Women's Hospital in Boston, who's also an attorney and ethicist. "It's just going to get much, much worse," she says.

"Laws will exist that ask [physicians] to deprioritize the person in front of them and to act in a way that is medically harmful. And the penalty for not doing so will be loss of license, money loss, potentially even criminal sanctions," King explains. "How can you possibly resolve that conflict?"

Watching patients get 'sicker and sicker'

Clinicians in states with abortion restrictions that have just gone into effect – or will imminently – are racing to understand the exact outlines of the restrictions in cases where complications arise in pregnancy.

"It's very frightening and confusing for physicians and the whole team that cares for patients to know, what can we do, what is OK and what's not OK?" says Dr. Lisa Harris , an ob-gyn and professor at the University of Michigan who joined a university task force last December to prepare for Roe to be overturned. She wrote about their work for the New England Journal of Medicine in May, and her arguments were cited in the Dobbs dissent .

She has been puzzling over the language in Michigan's decades-old abortion law – currently on hold – which makes abortion a felony except when it "shall have been necessary to preserve the life of such woman." A variation of that language is included in most abortion restrictions in other states.

"How imminent must death be?" Harris asks. "There are many conditions that people have that when they become pregnant, they're OK in early pregnancy, but as pregnancy progresses, it puts enormous stress on all of the body's organ systems – the heart, the lungs, the kidneys. So they may be fine right now – there's no life-threatening emergency now – but three or four or five months from now, they may have life-threatening consequences."

So, she asks, does the language in these laws allow for abortion early in pregnancy if a life-threatening complication could arise later?

If not, the laws put both the physician and patient in the position of just standing there to "watch somebody get sicker and sicker and sicker until some point – and where is that point? – where it's OK to intervene and we won't be exposed to criminal liability," says King, who is vice chair of ACOG's Committee on Ethics.

Cancer diagnoses raise questions as well, Harris says. "There are some cancers that the hormones of pregnancy make grow and spread faster, and people will choose to end a pregnancy because of that or because the treatment that their oncologist is recommending would be toxic or potentially lethal to a developing baby," she says.

If abortion is not an option in their state, then must they carry their pregnancy to term and delay treatment? "That might mean their cancer is more serious and more widespread than early in the pregnancy, and so they may indeed have a higher risk of dying, but it's not a risk that's going to happen immediately – it might be a recurrence in months or years."

If Michigan's abortion ban does take effect, Harris also wonders if it would be legal for her to prepare patients to receive abortions out of state by doing bloodwork and ultrasounds in Michigan.

Even for providers in states where abortion is reliably legal, like King in Massachusetts, there are legal and ethical questions. "Let's say that I'm providing abortion care to persons that I know that are traveling to me from out of state – does that mean then that I can't travel, for example, to Texas?" she asks.

"Nobody has the answers right now, and my fear is that the fear that doctors and nurses and health care administrators and leaders will feel – their fear of intervening – will mean that some patients will die when they didn't need to," says Harris.

A 33-year-old mother of three from central Texas is escorted down the hall by a clinic administrator prior to getting an abortion in October of 2021 at Hope Medical Group for Women in Shreveport, La. Rebecca Blackwell/AP hide caption

A 33-year-old mother of three from central Texas is escorted down the hall by a clinic administrator prior to getting an abortion in October of 2021 at Hope Medical Group for Women in Shreveport, La.

Messiness and fear in the months to come

The path to clarity on these questions is itself unclear.

"They could be resolved by a legislature trying to engage in more specificity, which they will not do," predicts Kim Mutcherson , co-dean of Rutgers Law School whose scholarship focuses on bioethics and reproductive justice. In places where abortion is illegal, legislators will broadly "want to make it as difficult as possible, and one of the ways that you do that is [by] creating a standard where people don't know with specificity whether what they're doing is right or wrong."

Instead, she says, "You have to wait until somebody gets in trouble. You have to wait until there's a case. You have to wait until somebody gets arrested. And then you start to understand, 'OK, this is what the parameters are.'" Clarity through the court system is likely to take months, if not years.

In the meantime, Dr. Amy Addante , an ob-gyn based in Illinois who's also a fellow with Physicians for Reproductive Health, suspects the new legal restrictions on abortion will have a chilling effect on health care institutions and medical providers. "From a medical malpractice and legal standpoint, I think a lot of health care systems, and even individuals, are going to be very risk averse," she says.

"I'm scared for my colleagues who are providing [obstetrical care] in these states where they can't just make medical decisions based on good clinical judgment and evidence, but also have to consider 'What is the law?'" she says. In most medical schools and residencies "there is no class on 'How to make sure what you're doing is legal in obstetrics,' " she adds.

"I have no interest in going to jail – I did not go to medical school to go to jail," Dr. DeShawn Taylor , an ob-gyn who provides abortions in Arizona told NPR in May . Arizona is one of many states with an abortion ban that could be enforced if Roe is overturned.

"I'm just going to be honest – I don't have the complexion to assume the risk and say, slap my hand later. We see the [pregnant] people who have been criminalized already – they have not been white," she said. "So I have no illusions about where I stand on the issue and what type of risk I can take and not take."

King says, from an ethical standpoint, "I can only help patients if I keep my license, so if you're a utilitarian, you'll say, 'Well, the greater good demands that I just comply with these laws because if we all get our licenses taken, there'll be nobody to care for anyone,' " she explains.

With all of this uncertainty, how things actually play out may depend on what jurisdiction you're in, says Harris. "I think it's just going to be profoundly local," she predicts – state by state or even county by county. "You'll see some prosecutors in some counties will say, 'I'm not prosecuting this, it doesn't break the law,' or 'I don't want to enforce the law.' "

"It's going to be very messy," she adds.

Physicians and medical groups didn't always champion abortion

Doctors played a key role in the movement to outlaw abortion in the U.S. in the 1860s – specifically, doctors who were members of the American Medical Association. Today's AMA has become increasingly vocal in support of abortion rights. A few years ago, it sued North Dakota over an abortion ban.

In a statement released Friday , AMA President Dr. Jack Resneck Jr. condemned the Dobbs ruling and said it is "a direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients' rights to evidence-based reproductive health services." He also said the AMA would fight these restrictions, which may signal more legal action from the group on abortion.

Former AMA president Dr. Gerald Harmon told NPR in early June that the AMA hasn't surveyed its 270,000 dues-paying doctors about abortion specifically — and he says individual physicians may have religious or conscience-based objections to abortions — but as an organization, the AMA is united in fighting excessive government intrusions into medical care.

"We speak with one voice against government – politicians and lawyers and judges – in the exam room, whether it's maternal fetal medicine, women's reproductive health, gender [identity] medical treatments," he said. "We need to be more outspoken and protect our ability to perform medically appropriate safe abortions and be able to teach that."

Not all physicians subscribe to this view, nor do they see physicians as having an ethical conflict when treating patients in places that restrict abortion. In fact, the American Association of Pro-Life Obstetricians and Gynecologists filed its own amicus brief to the court enumerating the risks of abortion and saying opposition among doctors is part of the medical tradition. "In declining to perform abortions, doctors are keeping with the longstanding tradition of their profession. Abortion has been deemed contrary to sound medicine for thousands of years," the brief reads.

But most medical groups and journals defend access to abortion as a legitimate and safe health care option, especially in recent weeks. "The fact is that if the US Supreme Court confirms its draft decision, women will die. The Justices who vote to strike down Roe will not succeed in ending abortion, they will only succeed in ending safe abortion. Alito and his supporters will have women's blood on their hands," the Lancet editorial board wrote in May .

King says physicians, hospitals and medical groups haven't always spoken "loudly enough" in defense of abortion. "I've always been outspoken, but I'm in the minority," she says. "Typically, hospitals are not vocal about providing abortion care because they don't want to invite controversy and protests on the street. That makes sense – we don't want to disrupt patient care," she says.

But the country has reached a tipping point, she argues. Abortion providers like her "should all be very proud of the care that we provide and very vocal about how we all believe it to be essential health care."

Pien Huang contributed to this reporting.

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The Unlikely Women Fighting for Abortion Rights

The end of Roe has turned women who terminated pregnancies for medical reasons into a political force.

Riata Little Walker, right, with her husband, Ian Walker, and their family in Casper, Wyo. Credit... Jimena Peck for The New York Times

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By Kate Zernike

Kate Zernike covers abortion for The Times.

• May 27, 2024

For a long time, many women who had abortions because of catastrophic fetal diagnoses told their stories only privately. Grieving pregnancies they dearly wanted and fearing the stigma of abortion, they sought the closely guarded comfort of online communities identified by the way many doctors had described the procedure — TFMR, or “termination for medical reasons.”

In the two years since the Supreme Court overturned Roe v. Wade, their pain has been compounded into anger by new abortion bans across the country. While these women account for a fraction of abortions in the United States, they have emerged as the most powerful voices in the nation’s post-Roe debate, speaking out against bans with their stories of being forced across state lines and left to feel like criminals in seeking care.

Many of these women started out opposing abortion, but as they have changed their minds, they have changed the way Americans speak about it. Shifting from private anguish to public outrage, they have also helped shift public opinion toward more support for abortion.

“After going through all this I wondered, why are we not the poster child for abortion rights?” said Riata Little Walker, who traveled from her home in Casper, Wyo., for an abortion in Colorado at 22 weeks, after doctors diagnosed Down syndrome and a heart defect in her fetus, which they said would require surgery and later a transplant if it survived until delivery.

“Yes, your body, your choice, but that’s not the story that pulls people in,” she said. “We have to bring our stories to the front because otherwise it’s so easy for those over here to do, ‘But they’re killing babies.’”

Ms. Walker is Catholic and had worked for Wyoming Republicans, including Senator John Barrasso. She opposed abortion, and did not realize she was having one because doctors called it “termination.” In the months that followed, she came to support abortion whatever the reason, and after Roe was overturned in June 2022, she testified against the ban on abortion passed by the Wyoming Legislature.

Although most bans allow abortions to save the life or health of the pregnant woman, few women have been granted these exceptions, and only a handful of bans allow abortions for fatal fetal anomalies. There are no bright lines to define “fatal,” or “medical reason,” and the procedure is the same whether it’s described as termination, TFMR, or abortion.

That makes these cases complicated for doctors, lawmakers, and for the women themselves: What qualifies as a medical reason?

The women speaking out say their experiences made them believe that the law can’t and shouldn’t try to address complex and endlessly varying medical cases. In this, they appeal to rare common ground in what has been a bitter, decades-long debate: Regardless of whether they identify as “pro-life” or “pro-choice” in polls, Americans overwhelmingly say that the decision to have an abortion should be up to women and doctors, not the government.

These women say they now feel compelled not only to speak out but to use the word “abortion,” to remove the stigma they themselves put on it.

“All these things we never even knew before, because before all of this it was never spoken about,” said Kimberly Manzano, who flew from Texas for an abortion in New Mexico at 18 weeks after scans showed her fetus was missing limbs, organs and genitalia.

Ms. Manzano describes herself and her husband as “big Christians,” who thought abortion was something “promiscuous women” did to end unwanted pregnancies. Their pastor assumed they would qualify as a medical exception to Texas’ ban. They did not.

“We feel it’s our calling to our child that we lost that we do need to talk about it, to educate people, because I feel that we were so uneducated,” she said.

Some of the women are appearing in ads in favor of abortion rights ballot measures or candidates . Others are confronting politicians on the campaign trail, testifying or joining lawsuits . But mostly, they are talking to friends, family members and colleagues.

Polls show that people who have heard stories about women who had to cross state lines for abortions because of severe pregnancy complications are more likely to support legalized abortion. That is true even for Republicans or those who think that abortion should be illegal in most cases. Stories like these have also moved voters who oppose abortion to support ballot measures that have enshrined broad abortion rights in conservative states like Ohio and Kansas.

“By telling people’s stories, it makes it reality,” said Megan Kling, who traveled from her home in Wisconsin to Minnesota for an abortion at 23 weeks after a scan revealed that her fetus had no kidneys , so was not creating amniotic fluid, and would die after delivery, if not in utero. “You want to think every woman is perfectly healthy, every pregnancy is perfectly healthy, when in reality there’s a lot of things that can go wrong.”

Ms. Kling said some family members have argued that her situation is different: They support abortion if the fetus has a devastating condition, they just don’t want women using it as birth control. She understands, because she never thought of herself as someone who would choose abortion. “But women need health care options, and that’s what they don’t understand: Abortion is health care,” she said. “That’s what these stories raise up.”

Researchers say it’s not clear how many of the roughly one million abortions each year in the United States would be considered “for medical reasons,” but that they are rare.

Still, TFMR or “ending wanted pregnancy” communities have flourished online, with websites , private groups on social media where thousands of women share their stories — and separate sites for their partners — as well as podcasts and psychotherapists devoted solely to TFMR, and an awareness day in early May.

Many of these women don’t fit the usual angles of the abortion debate. They bristle at the clinical language of abortion rights groups; instead of saying “fetus,” they speak of the pregnancies they lost as unborn children. They name them, mark birthdays and imprint their tiny feet on keepsakes.

Ms. Kling found herself in an awkward position after she wrote letters to her state legislators, including the Republicans who represent her, in an attempt to move beyond her grief and anger after losing her pregnancy. She heard back only from a Democrat, and later, from Planned Parenthood and other groups who asked her to speak at events in support of President Biden. She agreed, but explained that she did not necessarily support him. She doesn’t think of herself as a Democrat, but she doesn’t feel like a Republican anymore, either.

“I feel like most people feel that way,” she said. “All the extremists are so loud you almost feel like you can’t speak up.”

Anti-abortion groups argue that bans prohibit only what they call “elective abortions” for unwanted pregnancies, and that any woman who needs an abortion for medical reasons can get one under the exceptions in those bans. They accuse Democrats of manipulating medical patients for political ends.

“Women have been falsely told this is a compassionate option, however, it feeds into the growing trend of disability discrimination and the pressure women face from the medical community to abort children who might have a disability,” said Dr. Ingrid Skop, of the American Association of Pro-Life Obstetricians and Gynecologists.

On the other side, abortion rights groups fear that elevating TFMR stories promotes the message that abortion should be protected only if it is “justified,” not that it should be every woman’s right. “People need abortions for all kinds of reasons — financial, medical, life circumstances — and none should be stigmatized,” said Nancy Northup, the president of the Center for Reproductive Rights.

Even within online communities, there is debate: Is it acceptable to terminate if a child would live only a few hours? A few days, a few years? What about the “gray” diagnoses — where a fetus is likely to survive into childhood but live a life severely constrained by surgeries, medications, machinery and hospitalizations?

Women describe weeks of waiting for additional scans, hoping for miracles, poring over statistics on survival rates and research on quality of life. Some elect to continue their pregnancies.

“Theoretically, if I had a Down syndrome diagnosis, I would keep them,” said Martha Sheppard. She and her husband, a teacher, learned on a 20-week anatomy scan that their daughter’s spine had not fused — the diagnosis was spina bifida — and would require an unknown number of surgeries, the first in utero. They moved from their home in Virginia to a Ronald McDonald House near a hospital in North Carolina for further tests, and researched. Three weeks later, they decided to terminate.

“To keep a child with spina bifida is also a loving decision,” Ms. Sheppard said, “but my husband and I decided that it was a loving decision not to bring her into the world with the body that she had.”

The women might seem to be making the case for medical exceptions — dozens have joined lawsuits filed by the Center for Reproductive Rights in four states , seeking to clarify what conditions qualify as exceptions under abortion bans. Instead, “Exceptions don’t work, is what we’re proving,” said Ashley Brandt, a plaintiff in Texas.

Ms. Brandt traveled to Colorado to abort a twin that had acrania — it had no skull — and posed a threat to her other fetus. “It wasn’t just me at risk, it was my viable daughter,” she said. “We still were not an exception.”

She learned of the option to selectively abort only from a TFMR group online; her doctors had been afraid to mention termination for fear of prosecution. She saw the shame and isolation that women in those groups felt, and felt it herself. Some of the harshest comments, Ms. Brandt said, came from women struggling with infertility who cannot imagine choosing to end any pregnancy. Like many of the women now telling their stories in public, she said her experience has made her feel more compassion for women who choose abortion no matter what the reason.

“Picking and choosing, it has to stop,” she said. “We need to trust people to make their own decisions.”

But the women say it remains a fight simply to explain that what they had was an abortion.

Months after Ms. Manzano’s abortion, she noticed her doctor had recorded it as “spontaneous miscarriage” on her chart.

“We had to travel to New Mexico,” Ms. Manzano said. “There was nothing spontaneous about it.”

She has been seeing a grief counselor, who refers to it as her “medical miscarriage,” even after Ms. Manzano told him she prefers to say “abortion.”

“Neither one of us corrects the other,” she said. Still, “for me to be able to grieve and heal through the process, I have to be able to say what it is.”

Kate Zernike is a national reporter at The Times. More about Kate Zernike

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• v.79(1); 2012 Feb

Book Review: The Ethics of Abortion: Women's Rights, Human Life, and the Question of Justice

William e. may.

Emeritus Pontifical John Paul II Institute For Studies on Marriage and Family Washington, D.C.

The Ethics of Abortion: Women's Rights, Human Life, and the Question of Justice by  Christopher Kaczor. New York:. Routledge,  2011.  x+246. pp. 

Christopher Kaczor's thorough study of “the ethics of abortion” is logically organized as follows: 1) introduction (1–12); 2) “Does Personhood Begin after Birth?” (14–37); 3) “Does Personhood Begin at Birth?” (38–55); 4) “Does Personhood Begin During Pregnancy?” (56–90); 5) “Does Personhood Begin at Conception?” (91–120); 6) “Does the Human Embryo Have Rights?” (121–144); 7) “Is It Wrong to Abort a Person?” (145–176); 8) “Is Abortion Permissible in Hard Cases?” (177–214); 9) “Could Artificial Wombs End the Abortion Debate?” (215–230). He answers “no” to numbers 2, 3, and 4, and “yes” to number 5. His own answer to numbers 6, 7, and 9 is “yes,” but his strategy is to consider and reject arguments answering “no” to these questions; his own answer to number 8 is “no,” but again his strategy is to consider and rebut arguments for a “yes” answer.

Kaczor asks whether “personhood,” not “human life,” begins at different points. He does so because today many claim that not all living members of the human species are persons with rights; only “persons” have rights, and killing human beings who are not persons does not violate any “right” to life.

First let us examine the rich contents of Kaczor's book. I will then close with an evaluative critique.

1. The Introduction

Kaczor believes that sound philosophical reasoning informed by a careful examination of the evidence can show that the vast majority of abortions are morally unjust (12). But he is convinced that meaningful and respectful dialogue between defenders and critics of abortion is possible if two key truths are honored. The first is the difference between the subjective culpability of the agent and the objective morality of the act as determined by relevant moral principles and norms. We must not, indeed cannot, judge those who choose to have or defend abortions. “Whatever one's view of abortion itself, refraining from making judgments about the character of those touched by abortion (in whatever way) is helpful in treating the topic properly, and more importantly, I believe (but won't defend here), that it is an essential part of being a decent human being” (5). The second is to avoid loaded language such as anti-life, anti-choice , etc. and use instead terms such as defenders of abortion, critics of abortion (6).

2. Does Personhood Begin after Birth?

Defenders of the claim that personhood begins after birth include Michael Tooley and others who accept the definition (or varieties and nuances thereof) of person given by Peter Singer: namely, “a being is a person if and only if the being has 1) an awareness of his or her own existence, 2) over time and in different places with 3) the capacity to have wants, and 4) plans for the future” (17–18). Kaczor provides an exhaustive critique of this definition and the four “person-making” criteria it stipulates, along with a critique of the efforts of many (Julian Savulescu, Galen Strawson, David Boonin, a “later” Tooley and his colleague Laura Purdy, and others) to “nuance” this definition and offer more sophisticated versions of it in order to answer objections, among them the criticism that, if strictly interpreted, Singer's definition would include among non-persons those who are sleeping or anesthetized, and if more loosely interpreted would include those in deep coma or severely mentally disabled (24–32).

A common claim is that the unborn and newly born are not actual persons but only “potential persons.” Responding to this claim, Kaczor distinguishes between a “passive potency” and an “active potency.” The former requires the intervention of an agent extrinsic to the being to effect the change from potential to actual (e.g., a sapling has a passive potency to become the leg of a chair) whereas the sapling has the active potency to become a mature tree (24). In defending this distinction Kaczor shows the absurdity of scenarios invented by writers like Nicole Hassoun and Uriah Kriegel to show how an oyster could develop its own rational powers if it were transported to Mars and if living on Mars made oysters capable of this (24–25).

Kaczor counters Jeff McMahan's argument that neonates and young children are not “persons” by a reductio ad absurdum. McMahan argued that since rational functioning determines moral worth, then there are degrees of personhood, and some persons are of greater value not only than non-rational humans but also than some rational ones. He further argued that there is no logical reason why rational entities with rational capacities might not be manufactured. In fact, McMahan himself had to admit that his idea that those persons whose rational capacities are greater than others have more rights than other persons is “dangerously invidious” (23).

Kaczor also shows that the acceptance of the Dutch “Gronigen Protocol” by Hilde Lindemann and Marian Verkerk is rooted in the a priori and falsifiable presupposition that the most humane way to treat severely handicapped newborns is to kill them to save them from a life of “hopeless and unbearable suffering.” This view presupposes that there is such a thing as a life not worth living and that one can judge that another human being is better off dead than alive. But empirical studies show that individuals who have suffered a lifetime because of a genetically-caused serious handicap or accident do not want to be so killed (33–34).

3. Does Personhood Begin at Birth?

Kaczor's procedure in showing that the answer to this question is “no” is to summarize and criticize the specific views of different authors (e.g., Mary Ann Warren, David Boonin, H. Tristam Englehardt, Ronald Green, Lawrence Tribe), playing them off against each other and showing their inconsistencies and in particular the inconsistencies in the changing views of Warren; he likewise briefly examines the nature of partial-birth abortion, and the Supreme Court's ruling affirming a constitutional right to this procedure and by that ruling reaffirming the conventional pro-choice view that abortion ought to be legally permissible throughout the nine months of pregnancy until the human being has been entirely removed from the woman's body (38–55).

4. Does Personhood Begin during Pregnancy?

Kaczor examines the following stages during pregnancy when different authors think the living human being becomes a “person” with a serious right to life: conscious desires/interests (Bonnie Steinbock); viability ( Roe v. Wade ); quickening/fetal movement (Kaczor names no one who holds this but simply proposes and then disposes of arguments claiming this); sentience (Ronald Green, David Overberg, et al.); human appearance (Roger Wertheimer; Jane English); brain development (Baruch Brody who, however, completely repudiates abortion after the brain appears, although Kaczor fails to note this); implantation (Bernard Nathanson prior to his conversion; Stephan Coleman). Kaczor rebuts these proposals by appealing to relevant scientific studies and to the infighting among defenders of abortion over these criteria for determining the beginning of personhood. In criticizing the claim that the human organism becomes a person when the brain is developed, Kaczor appeals to D. Alan Shewmon's refutation of the rationale used to claim that the brain is the central organizing element in the human person (79–81).

Of special interest in this chapter is Kaczor's presentation of and refutation of the developmental view or the multicriterial approach of Mary Anne Warren in her later writings, which is endorsed by Green and others. According to this approach, each of the criteria noted earlier fails as a sufficient criterion for determining personhood if taken individually. However, if they are taken together they lead to the conclusion that the right to life (a right of “persons”) gradually gains strength as pregnancy progresses, and the more similar the human being in utero is to “full-fledged” persons like those of us who are born, the greater the protection it deserves. Nonetheless before birth this being is not , Warren claims, a full-fledged person with a serious right to life (83–85).

Her claim ignores the vast difference in the right to life and other rights. There are age restrictions on voting, driving, and being elected to public office because these rights imply abilities to discharge specific responsibilities. But the right to life does not imply any corresponding responsibilities and so can be enjoyed regardless of age or mental capacities. And Warren's view has other problems as well.

Since Kaczor had shown in the earlier chapter that personhood does not begin after birth , he ends this chapter by saying that inconsistencies and inner contradictions of the most important arguments that personhood arises during pregnancy point to the logical conclusion that personhood begins at conception, the issue of the following chapter (90).

5. Does Personhood Begin at Conception?

Kaczor begins his yes answer to the question by saying that he will address not one but two questions. The first is “a moral question that inquires as to who is a member of the moral community; the second is a biological question that seeks to know when human life begins” (91). The first question is extremely important, not only for the abortion issue and other ethical issues but also because its answer presupposes or reinforces at least implicitly a general theory of personhood. Kaczor draws on Robert Spitzer's Healing the Culture: A Commonsense Philosophy of Happiness, Freedom, and Life Issues and John Kavanaugh's Who Count as Persons? Human Identity and the Ethics of Killing to contrast the endowment account of personhood and the performance account of personhood (93). After criticizing efforts (e.g., by Jeff McMahan, S. Matthew Liao) to defend the performance account of personhood and efforts to discredit the endowment account (e.g., by Martha Nussbaum), Kaczor argues that every human being is a rational animal (Aristotle's definition centuries ago; man is the zoon logikon , animal rationale ). Moreover every human being is not potentially a rational being, but a currently existing actual rational being. Kaczor illustrates this by using examples from pathology—for instance, some men are sterile and cannot therefore reproduce when united in the bodily act of genital intercourse with a woman. But this is a pathological condition, and these men's generative organs remain generative even if they cannot be exercised. Thus human beings from conception on are the kind of beings who are actual existing rational beings even if these rational powers, rooted in their being, must be developed in order to be exercised, but they could not be developed if they were not there to begin with, etc. (98–102).

The second question, when does a human being begin to exist, is a biological or scientific question and Kaczor, making his own the scientific studies cited by Patrick Lee, 1 shows that this evidence leaves no doubt about the beginning of human beings; they come to be at conception, when the sperm from the man fuses with the oocyte of the woman and a new organism, distinct from mother and father, begins to be, with the active potency to develop into an embryo, fetus, newborn … senile old person. Kaczor then offers another argument, which he calls the “constitutive property” argument, to support this conclusion (105–120). (Kaczor notes that David Boonin had articulated this argument. He does not, however, point out that Boonin's articulation of the argument is in essence a misreading of the argument proposed by Paul Ramsey years ago; Boonin discusses this argument in his widely ac-claimed A Defense of Abortion 2 ). The “constitutive property” is that all human beings from conception on are rational animals , i.e., bodily beings with the active potency to develop and exercise the rational acts of forming concepts, judgments, and arguments, and of making free choices.

6. Does the Human Embryo Have Rights?

In answering “yes” to this question, Kaczor does not give arguments to show that embryos have rights. His strategy is to consider and answer “several major objections to the view that the human embryo is a person, a being due fundamental respect” (121). He had examined those objections and rejected them in chapters 2, 3, and 4. This chapter is thus somewhat repetitious. It focuses on twelve arguments proposed by defenders of abortion to deny personal rights to human embryos: the acorn analogy; the size of the embryo; twinning; embryo fusion; the high embryo mortality rate; hylomorphism (the “delayed hominization theory”); the anti-abortion, anti-contraception argument; the argument that cells are not persons; the embryo rescue case; the bag of marbles analogy; cost-benefit analysis; the uncertainty argument.

I will not consider these objections and Kaczor's replies to them in any detail, but I will illustrate his strategy in his replies to the arguments based on monozygotic twinning and on fusion, as well as the high embryo mortality rate, or “wastage,” argument.

Some (Mary Warnock, Jeff McMahan) argue that the phenomenon of monozygotic twinning proves that an individual human being cannot exist in the early stages of pregnancy. Kaczor's basic reply is that even if one being can be divided into two, this does not mean that it was never an individual being, something demonstrated by cloning, an artificial kind of twinning. He stresses the difference between individuation and indivisibility : the fact that one being can be divided into two does not mean that it was never an individual being. It is also possible that the original human zygote died and in doing so gave rise to two or more individual human beings (127–129).

It may be possible that two human zygotes can fuse into one. The argument (Harris, Green) is that two human beings cannot fuse into one; therefore two human zygotes cannot so fuse but rather become “humanized” with the appearance of the primitive streak fourteen days after conception. All this case shows is that two human beings were in existence prior to fusion (and no instances of the fusing of human embryos have been recorded so far as I know, although Kaczor does not note this), and now the two human beings cease to exist and a new human being takes their place (129–130).

Embryo wastage or high embryo mortality

The argument (Green, McMahan) is that if embryos were truly human beings and especially if they were persons, parents would grieve over miscarriages as they do over the death of a toddler or aunt or beloved friend, whereas they do not. But most women do grieve over miscarriages. Far more important, however, is that grieving a death is itself irrelevant to whether an entity is a human being or person. There seems to be a relatively high rate of “embryo” wastage. But, Kaczor argues, experts think that this is the result of gross abnormalities and serious deficiencies in the reproductive process because of incomplete fertilization. In a majority of cases, it is likely that no human being or person was “wasted” or lost but rather some non-human organism. In addition, all human beings die, some during pregnancy, others at birth, others at different stages of their lives, but their deaths in no way show that they were not human beings or persons when they died (131–133).

7. Is it Wrong to Abort a Person?

Kaczor begins this chapter by declaring: “If every human fetus is a person, is abortion always wrong? It would seem so. Since having others respect one's right to life is a necessary condition for the possibility of enjoying all other rights (including the right to privacy and bodily integrity), it has a necessary priority over all other rights [with a reference to Spitzer's Healing the Culture ]” (145). But Kaczor does not show precisely why intentionally aborting a person, including unborn persons, is always morally wrong. Rather he criticizes some major arguments proposed by defenders of abortion justifying the killing of the unborn. The arguments are the following: the violinist analogy (of Judith Thomson), the burglar analogy (Thomson's), the “no worse off” analogy (Francis Kamm), the “special duties to children but not to fetuses” argument (Thomson), the comparative burdens objection (Thomson, Martha Nussbaum), the “does killing make the fetus worse off” argument (Kamm). Kaczor analyzes and criticizes these arguments from page 150 through page 176, giving special attention to Thomson's different “arguments/analogies” (150–167); in analyzing Thomson's thought he shows the significant moral distinction between foreseeing an evil effect and intending that effect, a distinction Thomson rejects.

I will not consider Kaczor's critique of all these arguments but rather show his procedure by briefly summing up his critique of Thomson's violinist analogy and his treatment of the key difference between foreseeing and intending. Most readers are familiar with the violinist analogy that Thomson used in her famous article “The Rights and Wrongs of Abortion,” published in the inaugural issue of Princeton University's Philosophy and Public Affairs in 1971, two years before Roe v. Wade. Just as a person does not have a moral obligation to allow the violinist plugged into her body while she is sleeping so that his blood can be purified by her kidneys to use her body for this purpose for nine months, so a woman who gets pregnant, perhaps after taking precautions (e.g., contraceptives) not to, has no obligation to allow the unborn child to continue to use her body for nurture for nine months; rather she has a right to have the child removed from her body even if its death is foreseen as an effect of its removal.

Thomson tries to buttress this analogy by referring to the Gospel story of the Good Samaritan. She thinks that if the woman were a “good” or “very good” Samaritan she would permit the violinist to remain plugged into her and the fetus to remain in her body for nurture until birth. But she says we are not obliged to be “good” or “very good” Samaritans, only “decent” Samaritans, and that a decent Samaritan would not be obliged to sustain the life of either violinist or fetus at such a severe cost to his own life.

Kaczor's criticism focuses on the Good Samaritan story. He says that the strength (or initial plausibility) of the analogy rests on the intuition that one may unplug oneself from the violinist, but he argues that Thomson's reference to the Good Samaritan considerably weakens her analogy. He stresses that the point of the story is moral and not legal . Thomson appeals to it as offering us moral wisdom (not religious faith). “Using the Good Samaritan story to justify not helping someone in need is,” Kaczor writes, “rather like using the race between the tortoise and the hare to justify a lack of perseverance” (150–151). He goes on to argue that the violinist analogy can be attacked on other grounds, for instance, on the right of the violinist and fetus to bodily integrity. Unplugging yourself from the violinist suggests that you are not violating his bodily integrity. But what if you could unplug yourself from him only by chopping him up or tearing him limb from limb or suctioning him away by a machine that grinds him to pieces? If one does this, is not one violating his right to bodily integrity, the same right the one to whom he is attached possesses? And to separate herself from the fetus, does not the woman have to have it ripped apart by a curette, or sucked out by a machine that grinds it into pieces, and in so doing she violates its right to bodily integrity? (151–152).

Kaczor emphasizes that Thomson's analogies proceed on the assumption that there is no moral difference between foreseeing and intending the evil effects of our actions, e.g., the death of a human person, say the violinist, the fetus, or an innocent non-combatant in war. But Kaczor goes on to show the centrality of this distinction for morality. We are in some way responsible for the unintended evil effects of our actions, for they would not take place if we did not choose to do the deeds that cause those effects (e.g., the deaths of innocent non-combatants caused by dropping bombs on a military target—what is now called “collateral damage”). However, we have a much greater moral responsibility for the actions we freely choose—i.e., intend—to do, as examples clarify, and here I offer some of my own. For instance, if I drive a car to go to the store, my chosen deed here and now is to drive the car to the store; in driving it I foresee that I will use up gasoline, wear out my tires, and pollute the atmosphere. But I do not intend these evil effects; indeed I would prefer that they not occur. Similarly, a dentist may foresee that he will cause me pain in doing some procedure on my teeth, but he is not intending that I experience the pain; if he does I will go to a different dentist. Many abortion defenders (e.g., Boonin, Thomson) reject this key distinction, and Kaczor takes up their objections in detail and answers them (157–162).

8. Is Abortion Permissible in Hard Cases?

Kaczor answers “no” to this question. He divides the chapter into two lengthy sections separated by a shorter one. The first major section discusses “Hard Cases for Critics of Abortion” (178–191), and these include the following: difficult circumstances, fetal deformity, abortion for the child's good, cases of rape and incest, abortion to save the mother's life. The second major section takes up “Hard Cases for Defenders of Abortion” (193–214), and these include the following: murder of pregnant women; sex selection abortion; abortion for frivolous reasons; safe and legal, but why rare? why parental opposition? prenatal bonding with “our baby”; morally permissible vs. morally objectionable; intermediate moral worth of the human fetus. The third and shorter section concerns “Cases of Conscience” (191–193). It will be useful to consider all of these.

Hard Cases for Critics of Abortion

Difficult circumstances.

The most common reason for abortion is that the circumstances of the pregnancy are not felt to be right either for the mother or for the child to be born. Typical circumstances of formidable difficulties are broken homes, drug abuse, crushing poverty, abusive relationships, fear of public humiliation, inability to complete education or do one's work. It would be arrogant and wrong to judge women seeking abortion because of these circumstances; what they need is support, not condemnation. But these circumstances can and do exist after a child is born and can even be worse. But even defenders of abortion would not use these circumstances to justify the intentional killing of a six-year-old child. Commonly accepted morality holds that such killing of innocent persons or helping others to do so is not ethically permissible even in the worst circumstances. Doing the right thing may be difficult and even heroic, but one is obliged not to do or facilitate such intentional killing (178–179).

Fetal deformity

Kaczor uses the same kind of reasoning to answer this difficulty. He notes the exceptional difficult case when prenatal testing shows that the unborn child has a disease or malady known to be fatal shortly after birth. Even if abortion is not chosen, the unborn child is doomed to death. Abortion will spare the mother the burden of continuing the pregnancy, the burden of giving birth, and the agony of waiting for the child to die after birth. Abortion seems justified by the principle that in such circumstances we should salvage the best out of a difficult situation. But Kaczor notes that abortion itself imposes serious burdens on the woman; more important ethically is that the expected lifespan of a person does not affect the permissibility of killing him. Thus if the human being in utero is a person, then intentionally killing him or her is impermissible even if he or she will shortly die (180–181).

Abortion for the child's good

This difficulty, similar to the previous one, appeals to the emotions and shows that the motives of those who abort unborn children for this reason are used to justify the intentional killing of innocent unborn persons. But good motives are not sufficient to justify freely chosen human acts. They cannot justify the intentional killing of innocent human persons whose lives are integral to their being (181–183).

Cases of rape and incest

In such cases (Kaczor treats incest as often the same as rape, since it usually occurs against the free consent of the woman) abortion is justified as the necessary means to protect the good of the mother. Kaczor first points out that if conception can be prevented, this is morally acceptable because the means chosen is not contraceptive (to impede the beginning of new life through a freely chosen genital act) but is rather to protect the woman from suffering further bodily violence from the rapist. (Kaczor does not himself spell this out in his text, but his footnote reference is to John Finnis's treatment of the matter in his Moral Absolutes of 1991, and Finnis clearly sets forth the reasons why this is true.) Kaczor emphasizes that most women who conceive a child after rape do not abort the child but bring it to birth and either place the child for adoption or raise him or her themselves.

But if the woman wants the abortion so that she will not be reminded of the suffering she endured by being raped, nonetheless the truth remains that the unborn child is an innocent human person with the same inviolable right to life as the pregnant woman. Like all other human persons, the mother has the corresponding duty to refuse to intentionally kill that person, which is what she does if she consents to abortion. Some (e.g., Thomson) object that this would require heroic virtue on the part of the woman. Kaczor acknowledges this, but he then affirms a most important truth, writing: “[S]ome circumstances, including those created by the evil choices of others, can sometimes remove the category of the merely permissible, leaving us with a choice between the morally wrong and the morally heroic. If a dictator orders you to torture your mother to death or face a firing squad, you will be faced with a choice between the morally wrong and the morally heroic” (184–185). And this, one will correctly infer, is the same situation for the woman made pregnant by being raped.

Abortion to save a mother's life

Kaczor addresses these cases by using what he calls “DER,” double effect reasoning, and he then briefly summarizes the requirements of this reasoning as summed up in the principle of double effect by Thomas Cavanaugh. 3 According to this summary of the principle of double effect and of double effect reasoning, performing an act with two morally significant effects is justified if “(1) the evil effect is not intended as a means or as an end; and (2) there is a proportionately serious reason allowing for the evil effect” (186).

Kaczor says that if we apply double effect reasoning to abortion, its first condition shows us the moral difference between “direct” and “indirect” abortion, and it is crucially important to distinguish abortions where fetal death is intentionally brought about (frequently called “direct” abortion) and procedures in which the death of the human being in utero is not intentionally brought about but is the side effect of what a person brings about intentionally (frequently called “indirect” abortion). Direct abortion is not justifiable because it is the intentional killing of an unborn human person. The second condition of double effect reasoning is fulfilled if the mother's life is at risk, because saving her life is a proportionately serious reason for allowing or tolerating the death of the unborn child. Kaczor then examines three cases in which the mother's life it at risk: ectopic pregnancy, cancer of the uterus, and the case when the baby has trouble exiting the birth canal.

He judges that abortion in the first two cases is “indirect” and the death of the unborn child a foreseen but not intended effect, and that therefore abortion in such cases is morally justifiable. He notes some debate among reputable writers who reject all intentional killing of innocent persons over different methods of coping with ectopic pregnancies, especially by use of the drug methotrexate. But he says that the majority of contemporary writers now accept salpingostomy: splitting of the fallopian tube in which the fetus has implanted, removing the unborn child, and sewing the tube up in order to increase the woman's chances of conceiving in the future. This method had been repudiated many years ago by J. Lincoln Bouscaren, a Jesuit canon lawyer who first developed an argument justifying salpingectomy as a morally permissible way to save the life of a mother if endangered by an ectopic pregnancy—a salpingectomy is the excision of the fallopian tube where the fetus had implanted rather than in the womb.

Kaczor also judges morally right radiation therapy or a hysterectomy, that is, removal of the uterus, to save the life of a pregnant woman suffering from cancer of the uterus and for whom life-saving treatment of the cancer cannot be postponed until the baby is born. In such a case, use of radiation therapy that would have as a side effect the death of the unborn baby, or a hysterectomy that would also result in its death, is justifiable insofar as the death of the unborn child is not intended but only the life-preserving therapy done to the mother (186–189).

The third case, when the unborn child cannot exit the birth canal because it is stuck in it and the pressure it exerts can cause the mother to die, is also called the craniotomy case because the unborn child can exit the birth canal if a craniotomy is performed on it, and this requires that the baby's skull be crushed. If the craniotomy is not done then both mother and baby will die; if it is done, the mother's life can be saved. Kaczor identifies four possible outcomes, the first three resulting if the doctor does nothing and the fourth resulting from his intervention: 1) both mother and child will die; 2) the baby will die, and then removing its corpse by crushing its head is not immoral; 3) the mother will die and then the child can be removed safely; and 4) the mother will be saved if a craniotomy is performed on the baby.

Kaczor notes that Germain Grisez, John Finnis, and Joseph A. Boyle have argued that in both the hysterectomy and craniotomy cases the death of the unborn child is neither the means nor the end intended and that there is no moral obstacle to engaging in these performances to save the life of the mother. 4 Kaczor thinks that one could argue that “even if the crushing of the baby's skull is not killing as a means to save the mother's life it may involve another evil means, namely the mutilation or violation of the physical integrity of the child,” and one could thus distinguish the craniotomy case from the hysterectomy case. But he then goes on to consider arguments for and against the claim that crushing the baby's skull is an unjustifiable mutilation because it results in the baby's death and the questions these arguments raise. He judges these questions to be of great importance and difficulty and leaves them as open questions (190–191).

Cases of Conscience

This brief section concerns the debate between critics of abortion and defenders of abortion about the place of conscience. Kaczor criticizes the 2007 paper “The Limits of Conscientious Refusal in Reproductive Medicine” issued by the Committee on Ethics of the American College of Obstetricians and Gynecologists (ACOG). This document shows that ACOG considers conscience not as one's best judgment concluding a process of moral deliberation from basic moral principles to practical conclusions about what one is obliged to do or not to do here and now. Rather, it regards conscience as someone's own private opinion about what he personally ought to do without any appeal to basic principles to justify that opinion. Conscience is more of a belief that must not be imposed on others. The ACOG document also requires doctors and other health-care personnel to refer patients to others if they feel that they cannot personally provide the standard reproductive services—these include artificially making children in the laboratory, providing contraceptives, and abortion. The ACOG document not only unfairly limits a doctor's liberty in action but also infringes on his right of free speech. For these and other reasons this position regarding the role of conscience must be repudiated (191–193).

Hard Cases for Defenders of Abortion

Murder of pregnant women.

Most people find the raping of women morally abhorrent and particularly odious if the woman is pregnant and even more so if it causes her to have a miscarriage. So true is this that even proponents of capital punishment balk at executing a pregnant woman. At times the male who has caused a woman to become pregnant assaults her in order to cause a miscarriage if she refuses to abort the child. A notorious example occurred when Scott Peterson killed his wife Luci, eight months pregnant with their son Connor. Missing from Christmas Eve, 2002, their bodies, separately, washed to shore on April 14, 2003, and Connor's umbilical cord was still attached. Despite protests by abortion rights advocates, the husband was legally charged by the California Court with two counts of murder, with “special circumstances” calling for tougher penalties. Laws similar to the one in California charging the murderer with two homicides are in effect in many states (193–194).

Sex-selection abortion

If abortion is done because a child of unwanted sex is known to be in the womb, another serious problem for defenders of abortion is posed. Sex-selection abortion almost always means the elimination of females and in some countries/cultures extends to their infanticide should they survive until birth. In the U.S., for instance, eighty-five percent of women and ninety-five percent of men want a male child for the first baby and the first baby may well be the last wanted. If abortion is not the killing of a person, it poses no problem different from the killing of a guppy (as Warren holds), but this kind of abortion troubles female defenders of abortion. But how could they criticize such abortions without implying that abortion itself is problematic? In fact, the American College of Gynecologists and Obstetricians (ACOG) opposes sex-selection abortion. Kaczor gives other good reasons for opposing sex-selection abortion (e.g., it leads to further violence against women) and concludes, “It is not a simple matter to condemn SSA [sex-selection abortion] while upholding abortion for other reasons” (194–200).

Abortion for frivolous reasons

Abortions are frequently done for very frivolous reasons—parents want a child conceived during a certain astrological sign, a Leo, say, rather than an Aries; or they want a child of a certain hair color. Kaczor cites Naomi Wolf, who identified some frivolous reasons used by classmates in her high school during the 1970s (for instance, a girl would try to get pregnant just to find out if she could; and if she did, she would abort the pregnancy). This is enough to illustrate the problem (200).

Safe and legal, but rare?

Abortion defenders frequently claim that they want to make abortion “safe, legal, and rare. “ But if there is nothing wrong with abortion and if it is a woman's right, what difference does it make how often a woman has one? Some sexually active women simply do not want to use contraceptives (and some begin their sexually active lives during their teens), and such women may want to have abortions rather frequently before they reach menopause. Some may say that abortion is bad for their health, physical and psychological, and that they therefore ought to practice birth control to avoid abortions. Certainly abortion is much more invasive and expensive than using contraceptives. But does this championing of contraception over abortion for health reasons not show that the emotional trauma frequently caused by abortion is perhaps due to the recognition that birth control prevents a new human life from coming into existence whereas abortion destroys one that has already come to be (200–202)?

Why personal opposition?

Many abortion advocates say that they are personally opposed to abortion but do not want to impose their views on others and want to keep abortion legal and safe. But presumably one is personally opposed because abortion is the unjust taking of a human life. A rebuttal of this argument is suggested by some defenders of abortion (e.g., McMahan). According to this rebuttal the critic of abortion is inconsistent if he says he is “personally opposed” to killing abortionists. If abortion really is a gravely unjust killing of the innocent, then violence to stop that killing seems morally required. To condemn this violence shows the inconistency of opposition to abortion. Kaczor answers this objection by noting, for instance, that many people think that the war against Iraq initiated by President Bush in 2003 was unjust and led to the unjust killing of many innocent persons. They did not, however, seek to assassinate him, and they have not been accused of inconsistency. So why make this charge against critics of abortion if they do not choose to kill abortionists? Kaczor offers other arguments of a similar kind to answer this problem (202–206).

Prenatal bonding with “our baby.”

Many parents immediately begin to love the unborn human being in the woman's womb as a person. But if this entity is not a person or has no moral worth, as abortion defenders claim, it is difficult to explain why these parents can be so terribly mistaken; in fact, many parents like this grieve deeply over a miscarriage, and if the unborn is not a person, their behavior seems silly or stupid, but it does not seem right to accuse them of this.

Elizabeth Harman offers a sophisticated argument to reply to this objection; her argument is based on what she terms the “Actual Future Principle.” According to this principle, if an early fetus has an actual future in which he or she will be conscious, then this human fetus has moral worth; but if an early fetus does not have an actual future of which he or she will be conscious, then the fetus has no moral worth. Parents who immediately love the unborn human being are acting reasonably since it is likely that this fetus will have an actual future of which it will be conscious, but obviously fetuses to be aborted will not have such an actual future. Kaczor rebuts this argument with four cogent considerations, and there is no need to set them forth here (206–209).

Morally permissible vs. morally objectionable

On this view abortion is legally permissible but morally objectionable. This distinction might help defenders of abortion respond to many of the hard cases and could even be extended to all abortions. Kaczor doubts that this distinction is a real one. There is a real distinction between the morally permissible and the morally heroic, between the obligatory and the supererogatory. Earlier (150–158, pages to which Kaczor now refers), he had shown that at times circumstances so shape a situation that one must choose between a heroic act and seriously violating an innocent person's inviolable right to life, and he suggests that this is the situation here (209–210).

Intermediate moral worth of the human fetus

Kaczor begins this section by writing: “[T]he defender of abortion can respond to all these [previous] cases with one rejoinder. The murder of pregnant women, a condemnation of sex-selection abortion, the moral impermissibility of abortion for insignificant reasons, personal opposition, the desire to see the practice of abortion become rare, and parental love for their prenatal children do not presuppose the personhood of the fetus, but rather that the human fetus has some value” (210). But if the human fetus has some value, so does a puppy, but we do not respect puppies as we do persons, so there is no reason to respect human fetuses as persons.

There are many objections to this claim and Kaczor neatly summarizes them, but in essence this claim was shown to be arbitrary in the chapters of his book showing that personhood does not begin after birth or at some time during gestation (211–214).

9. Could Artificial Wombs End the Abortion Debate?

Kaczor gives a “yes” answer to this question, but examines the issue first from the perspective of ardent defenders of abortion and then from that of ardent critics of abortion, answering objections to a yes answer.

From the Perspective of Ardent Defenders of Abortion

Kaczor asks what is meant by a “right to abortion.” It could mean a right to terminate the human embryo/fetus or a right to extricate it from the woman's body. They seem to be linked at present because methods used to extricate the fetus from the womb invariably kill it. But if an artificial womb becomes available, the distinction would be meaningful. Kaczor's reading of the literature convinced him that many ardent defenders of abortion in fact advocate only a right to evacuate the embryo/fetus and not to kill it, and he refers to many well-known defenders of abortion to show this (the American College of Obstetricians and Gynecologists, Warren, Thomson, Boonin). Even some ardent defenders of abortion who also defend infanticide (Singer) think that if someone wants to adopt a healthy fetus brought to term in such an artificial womb it is difficult to see why it should die. Kaczor concludes that if ardent supporters of abortion like those named are willing to let live a fetus brought to term in this way, then artificial wombs could surely end the abortion debate for them (214–219).

From the Perspective of Ardent Critics of Abortion

Kaczor identifies some major objections to the use of artificial wombs by ardent critics of abortion: the artificiality objection, the IVF objection, the deprivation of maternal shelter objection, the birth within marriage objection, the integrative parenthood objection, the surrogate motherhood objection, the wrongful experimentation objection, the objection from the right of the child to develop within the womb of the mother.

The artificiality objection

Kaczor answers this by noting that neonatal intensive care units are highly artificial and are not ethically impermissible, and an artificial womb seems simply to be a further development along the same lines. Moreover, in the case of a pregnant woman about to have a hysterectomy because of cancer to protect her life, she would prefer to have her baby moved to such a womb than die as the foreseen but not intended effect of her cancer treatment.

The IVF objection

This objection fails to distinguish between complete ectogenesis, required by IVF, and partial ectogenesis when an unborn child is already in his mother's womb and is transferred to an artificial womb rather than being killed by direct abortion or as the unintended effect of a legitimate therapy (radiation therapy or hysterectomy for uterine cancer) on the mother.

The deprivation of the mother's sheltering womb objection

This is more serious and difficult to answer. However, unborn children whose lives are at risk in utero (e.g., if the mother is poisoned) are sometimes removed by doctors and cared for outside the maternal womb and there is no objection to this; some cases may become complicated but there is no reason in principle , to exclude use of an artificial womb to preserve the life of an unborn child whose life is in grave danger if he remains in his mother's womb.

The birth within marriage objection

Some critics of abortion emphasize that Donum vitae judges immoral birth outside of marriage as achieved by IVF and warns that IVF techniques can open the way to other forms of biological and genetic manipulation. Critics argue that use of artificial wombs is such manipulation. In fact, the document explicitly mentions the possibility of making such wombs and seems to condemn ectogenesis. But this passage does not condemn partial ectogenesis that in many ways simply extends the value of NICUs (newborn intensive care units) to protecting lives of unborn babies if those lives are in imminent danger of being lost.

The integrative parenthood objection

This objection is based on this passage of Donum vitae in particular: “a child has the right to be conceived, carried in the womb , brought into the world and brought up within marriage.” 5 This text and some others seem to exclude partial ectogenesis as undermining gestational parenthood. But this interpretation does not stand scrutiny. Were it to be understood as absolutely unexceptionable, it would follow that all women who become pregnant as a result of rape or incest ought to marry the unborn baby's father. But marriage after any pregnancy out of wedlock is not a good solution. It would be far better for the child if its mother gave it up for adoption after birth, and this requires heroic action on the mother's part and on that of the adopting parents.

The surrogate motherhood objection

This is based on the truth that surrogate motherhood is clearly wrong and strongly condemned by Donum vitae. But none of that document's definitions of surrogate motherhood include partial ectogenesis as a form of surrogacy.

The wrongful experimentation objection

Kaczor thinks that this is the most powerful objection against use of an artificial womb by women seeking abortion. One ought never subject unborn human persons to risky experiments that are not undertaken for their good but rather for the sake of their mothers, who want to rid themselves of their unborn children. Kaczor argues that basic bioethical principles justifying experimental procedures intended to save the lives of individuals in imminent danger of death could be applied to use of artificial wombs to protect the lives of unborn human persons who would otherwise be killed by abortion. If such experimentation led to the improvement of these techniques, use of an artificial womb would no longer be experimental but a common procedure subjecting a person to no unacceptable risks.

The objection of the right of the child to develop in his mother's womb

This seems a good one in the light of a passage from Pope John Paul II's Centessimus annus : “Among the most important of these [basic human rights] mention must be made of the right to life, an integral part of which is the right of the child to develop in the mother's womb from the moment of conception.” 6 “But,” Kaczor writes, “it is not evident from this or from other passages from John Paul II that he even considered the possibility of an artificial womb as a way of overcoming the impasse over abortion, let alone that he had considered and rejected this possibility” (227). He thus concludes that using this passage as a definitive magisterial judgment against use of an artificial womb for partial ectogenesis is not licit.

Kaczor's conclusion, after sorting through objections and offering responses to them, is that use of artificial wombs might well be a way to end the abortion debate (215–231).

10. Evaluative Conclusion

Kaczor's book gives good arguments to show that individual personal life begins at conception. He likewise shows, by a host of arguments, many of them playing defenders of abortion off against each other, that the distinction between being a living human being and being a “person” is based on erecting arbitrary criteria for personhood, criteria constantly subject to change. He also considers in some depth and with fairness specific arguments by a wide variety of scholars attempting to justify the practice of abortion and the right of women to abort the unborn at any time during their pregnancy. His work, moreover, is based on a comprehensive study of the literature; the bibliography is twelve pages long and references more than 250 items. His bibliography, however, does ignore some older and still important studies, including Germain Grisez's massive 1970 work Abortion: The Myths, the Realities, and the Arguments . 7

A good, strong point of this work, I think, is Kaczor's commentary and conclusion regarding the current dispute among Catholic scholars on the moral licitness of craniotomy as a means of saving the mother's life if the baby is stuck in the birth canal and pressure exerted on her can kill her.

There are some serious weaknesses in Kaczor's study, however. The chapters on the rights of the human embryo and on whether it is wrong to abort a person (chs. 6 and 7) are in my judgment very weak. In chapter 6, Kaczor defends the rights of the human embryo negatively by offering criticisms, many of them good in their own way, of arguments claiming that the human embryo is not a person and hence does not enjoy rights, as we have seen in the earlier presentation of the contents of that chapter. I think he could and should have offered a stronger positive defense of the rights enjoyed by human embryos, in particular the right not to be killed intentionally by others, if he had summarized or briefly mentioned with references, the brilliant work of Wesley Hohfeld, professor of legal ethics at Harvard University in the first half of the twentieth century, which is central to John Finnis's analysis of rights in his Natural Law and Natural Rights . 8 Hohfeld sharply distinguished between a “claim right,” or right in the strict sense, and a “liberty,” or “liberty right.” To distinguish these rights from each other, it is necessary to speak of a three-term relationship between two persons (or groups of persons) and an act of a specific type. If we do, we can speak of a claim-right as follows: A (=a person or group of persons, or all persons if we are speaking of basic human and inalienable rights of human persons) has a right (a “claim right”) that B (=another person, group of persons, or all persons) should x (=some specifiable act), if and only if B has a duty to A to x.

Thus innocent human persons (=A) have a right in the sense of a claim right to life if and only if innocent human persons (=A) have a right that all other persons (=B) have a duty to innocent human persons (=A) to forbear intentionally killing them (=x). In other words, the right of innocent human persons to life, if genuine, means that all other persons have an obligation or duty not to kill them intentionally. Applying this argument to unborn children, we can say: unborn children have a strict right or claim right to life if and only if unborn children (=A) have a right that their mothers and other persons (=B) have a duty to unborn children to forbear aborting them, i.e., intentionally killing them (=x). This right is genuine because all persons, including mothers, have a strict obligation or duty to forbear intentionally killing innocent human persons, and abortion is the intentional killing of an innocent human person.

What of the alleged “right” of a woman to an abortion? Expressed as a three-term relationship between two persons and a specifiable action, we see that the alleged right is really a “liberty” claimed by women. It can be put generally as follows: B (=a person, group of persons, etc.) has a liberty relative to A (=a person, a group of persons, etc.) to x (=some specifiable act), if and only if A has no claim right that B should not x.

Translating a woman's alleged “right” to an abortion into this language we have the following: a woman (= B ) has a liberty relative to the unborn baby (= A ) intentionally to abort it (= x ) if and only if the unborn baby (= A ) has no claim right that the woman (= B ) should not abort it (= x ). But the unborn has the claim right that his or her mother (and others) forbear from aborting it. Consequently, the liberty (and not right) claimed by women to abort is spurious.

Chapter 7 on the wrongness of abortion goes into a minute analysis of many arguments proposed by defenders of abortion to show how specious they are; Kaczor in particular devotes great attention to two analogies used by Judith Jarvis Thomson in her celebrated 1971 article on the rights and wrongs of abortion. But his critique of her reasoning in my judgment is far inferior to the majestic rebuttal of Thomson's entire article by John Finnis in his “Rights and Wrongs of Abortion: A Reply to Judith Jarvis Thomson,” published in 1972 in the same journal in which Thomson's ludicrous essay appeared. Moreover, Kaczor makes no reference whatsoever, either in his text or bibliography, to this masterful article. Kaczor's analyses of some bad arguments to justify abortion are interesting, but they do not develop in any way the great arguments that show why abortion is always wrong.

Other weaknesses are present but not too serious. Moreover, despite the serious weaknesses noted, Kaczor's book is exceptionally valuable and makes a great contribution to the abortion debate.

1 Lee refers to Leslie Arey, Developmental Anatomy , 7th ed. (Philadelphia: W.B. Saunders, 1974); William Larsen, Human Embryology (UK: Churchill, Livingstone, 1993); and Keith Moore, Before We Are Born (Philadelphia: W.B. Saunders, 1998).

2 Cambridge: Cambridge University Press, 2002.

3 Thomas Cavanaugh, “The Intended/Foreseen Distinction's Ethical Relevance,” Philosophical Papers 25:3 (1996): 179–188.

4 Kaczor refers to their article, “‘Direct’ and ‘Indirect’: A Reply to Critics of Our Action Theory,” Thomist 65 (2001): 1–44.

5 Congregation for the Doctrine of the Faith, Donum vitae (Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation, Replies to Certain Questions of the Day) (1987), n. II.A.1, emphasis added, http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-human-life_en.html .

6 Pope John Paul II, Centesimus annus (On the Hundredth Anniversary of Rerum Novarum ) (1991), n. 47, http://www.vatican.va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_01051991_centesimus-annus_en.html .

7 Cleveland/New York: Corpus Books, 1972.

8 John Finnis, Natural Law and Natural Rights (Oxford/New York: Oxford University Press, at the Clarendon Press, 1980), 199–205.

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Texas’ New Plan for Responding to the Horror of Its Abortion Ban: Blame Doctors

Last week, in a widely watched case, the Texas Supreme Court rejected the claims of Amanda Zurawski and her fellow plaintiffs that they had suffered injuries after being denied emergency access to abortion due to lack of clarity in the state’s abortion ban. Zurawski v. State of Texas has offered an important model for lawyers seeking to chip away at sweeping state bans and even eventually undermine Dobbs v. Jackson Women’s Health Organization , the 2022 decision that overturned Roe v. Wade . Now the state Supreme Court’s decision offers a preview of conservatives’ response to the medical tragedies that have been all too common after Dobbs : to blame physicians and hint that the life of the fetus ultimately counts as much as or more than that of the pregnant patient.

From the beginning, Zurawski had significance for patients outside Texas. Republicans have been increasingly hostile to abortion exceptions since 2022, demanding that sexual assault victims report to law enforcement when such exemptions do exist, dropping rape and incest exemptions altogether in many other states, and going so far as to require physicians to prove their innocence rather than necessitating that prosecutors prove their guilt . Nevertheless, exceptions are critical to the post- Dobbs regime: They are popular with voters and offer the hope—in reality the illusion—that abortion bans do not operate as harshly as we may expect.

The Zurawski litigation illuminated how exceptions fail patients in the real world. Physicians, afraid of harsh sentences up to life in prison, turn away even those they feel confident will qualify under exceptions. The exemptions, by their own terms, do not apply to any number of serious medical complications or fetal conditions incompatible with life. The Zurawski plaintiffs argued that Texas’ law should cover these circumstances and that if the opposite was true, it was unconstitutional.

Although this did not succeed in Texas, Zurawski created a blueprint for litigation in other states. It also kicked off a political nightmare for Republicans. Earlier this year, when Kate Cox, a Texas woman who learned that her fetus had trisomy 18, a condition that usually proves fatal within the first year, the state’s Supreme Court denied her petition for an abortion. In the aftermath, Republicans were flummoxed about how to respond.

The Texas Supreme Court offered Republicans one way to address the emergencies Dobbs has produced. The court began by limiting physicians’ discretion about when to intervene. The plaintiffs in Zurawski argued that physicians require protection when they believe in good faith that they need to protect the life or health of their patients. The court disagreed, suggesting that the standard was whether a reasonable physician would believe a particular procedure to be lifesaving.

On the surface, this doesn’t sound so bad. Who doesn’t want doctors to have to act reasonably? But determining how sick a patient must be is never straightforward—and is all the more complicated when the wrong answer will be determined after the fact by a prosecutor and the physicians with whom they consult, and when guessing wrong will result in a penalty of up to life in prison.

The court’s message was that physicians were the problem. They had misunderstood what the court portrayed as a perfectly clear law. Doctors were the ones who had refused to act reasonably and denied help to the patients that the court thought were deserving, like Amanda Zurawski herself. Texas had stressed the same argument throughout litigation in the case.

Republicans may well borrow the same strategy. If Americans don’t like the new reality that Dobbs has brought on, the party will argue, the GOP is not to blame. It is all the doctors’ fault. This allows conservatives to have it both ways: They frighten—or, in the case of Kate Cox’s doctor, block—physicians who might be willing to offer “reasonable” care, then blame the physicians for failing to care for their patients.

The court’s interpretation of the state constitution was just as revealing. The plaintiffs had argued that Texas’ ban discriminated on the basis of sex because only some persons are capable of pregnancy. The court rejected this argument, drawing both on Dobbs and on claims that have emerged in cases about transgender youth. Regulating abortion, the court reasoned, was no different from regulating gender-affirming care—it was a rule governing a specific medical procedure, not discrimination on the basis of sex.

What about the right to life? The Dobbs case held that U.S. citizens have 14 th Amendment rights only when that liberty was deeply rooted in history and tradition. Is there a federal or state right to access abortion to avoid death or serious bodily harm? As Reva Siegel and I have written elsewhere , there seems to be historical evidence to support this argument. And the political case for such a right is strong too. If courts say that there is no constitutional limit on state abortion bans—even if patients bleed to death—that will raise yet more grave questions about what Dobbs permits.

The Texas Supreme Court did not rule out the idea that the state constitution recognizes a right to life for the patient—or deny that high courts in other conservative states had identified a right to lifesaving abortions. But if there was such a right, the court noted, it would account for “the lives of pregnant women experiencing life-threatening complications while also valuing and protecting unborn life.” In other words, the court suggested, fetuses too have rights to life, and that means that the state has every right to deny treatment to pregnant patients in an effort to prioritize the well-being of unborn ones. Texas may not yet have written fetal personhood—the idea that fetuses are rights-holding people—into its constitutional law in clear terms, but the idea of fetal rights has already affected the lives of pregnant patients in the state.

Voters don’t seem to like the idea that fetal rights trump patients’ rights. The Texas Supreme Court has suggested that judges, not voters, may be the ones who decide the question.

But even in dictating what happens to pregnant patients across the state, other Republicans will join the court in pointing the finger at the doctors charged with implementing draconian bans. “The law entrusts physicians,” the court explained, “with the profound weight of the recommendation to end the life of a child.”

The U.S. Supreme Court is likely to make things worse for pregnant patients later this month, when it hands down a ruling on whether the federal Emergency Medical Treatment and Labor Act preempts an Idaho ban with very narrow emergency exceptions . None of this makes Zurawski a waste. It may not have changed the reality on the ground for patients in Texas, but it did tell an important story about the kind of America Dobbs has created—and it delivered voters a reminder that they still have the power to change it.