Finding Compromise on Abortion

Seeking a sensible middle ground in the post-Roe landscape

I confess this willingly: I took up a free subscription to the Washington Post’s online edition early in the pandemic. While this may erode my centrist credentials in the eyes of some, I found it helpful to see what the mainstream media had to say about Covid. Last weekend, said subscription led me to an unusually titled opinion piece:

I had missed Christine Emba’s rise in the world of journalism, despite regular appearances in the lightly-read copies of my alumni magazine, as well as a recent and heavily-promoted book entitled, “Rethinking Sex: A Provocation.” (I observe as the father of two rapidly growing daughters that I am grateful for efforts at distinguishing between consensual sex and healthy sex.) But here, in her op-ed on the matter of abortion rights in America, she struck a tone that resonated with me: most Americans want a middle ground when it comes to abortion, and the discussion has been inflamed by those with outlier viewpoints.

But what would a middle ground on abortion even look like? Thinking and researching the subject led to some uncomfortable realizations for me. I, along with most all my peers in our family medicine residency program in northern California, had been trained in providing abortions by some of the most inspiring physicians (and support staff) I met along my entire medical journey. I believed in their mission, and still do. I’ve found the efforts to fill the Supreme Court with young, anti-abortion justices to be some of the most distasteful political theatre I’ve witnessed; and I was distressed when I heard the news of the leaked document portending the Supreme Court’s imminent rejection of Roe v. Wade. All that said, I had to admit that, with Roe v. Wade as an intellectual cloak over my eyes, I had never really thought about what the law should be in this country.

Perhaps I had gotten a bit “inflamed” along the way. An unforgettable memory from an early session in our abortion training was when a very passionate abortion provider asked us, “True or False: Is abortion a form of birth control?” Predictably, my classmates’ responses tended to the negative; abortion is way too heavy and ethically fraught to be considered mere birth control, right? Wrong. The question was repeated, and the correct answer (“TRUE!”) provided, until we all got the picture: abortion is birth control, if a woman prefers serial abortions to other forms of contraception. A woman’s right to reproductive freedom is absolute. This was the message, and I bought it, even if the whole session was sufficiently off-putting to still feel uncomfortable recalling it almost 20 years later.

To be clear, most of the abortion rights world does not proclaim abortion to be an option for birth control; on the contrary, even the National Abortion Federation takes pains to differentiate the one from the other:

So why the stridency, and the shaming over my classmates’ initial hesitation to lump abortion in with birth control pills and IUDs? I have to think that the framing of abortion rights as fundamentally about a woman’s right to choice and bodily autonomy are necessary philosophical constructs; constructs essential to shape a very complex discussion into a simple one.

An open-minded inquiry into the medical or ethical questions around abortion will lead to the conclusion that the issue is anything but simple. If the litmus test is truly that a woman should always be allowed to decide what happens to her pregnancy, then the extreme presentation of that argument culminates with a woman deciding to petition for an abortion 39 weeks and 6 days into a healthy pregnancy, solely for deciding that she really didn’t like the idea of having a baby after all. A tiny proportion of abortion rights activists might support her right to seek an abortion in this case, and it might technically be legal in a small handful of states — but truly, this is the realm of extremists.

A slippery slope has to be admitted: if not okay for most at term, would it be okay at 32 weeks? Maybe 24 weeks, when the fetus is still only about the size of an ear of corn, but right after viability? 22 weeks, just before viability? For most people, these are complex questions. The majority of Americans would not defend legal protections for a woman to access an abortion under every possible circumstance simply because the baby resides within her body. After all, if a woman (or man) decides to end their own life due to medical illness, they only possess the “right to choose” to do so with the help of a physician in 11 states, and even then only under strict regulations.

Similarly, heading up the ladder of fetal development, it’s hard to deny an increasingly problematic ethical dilemma as the embryo (before 11 weeks) and then fetus matures. When we performed abortions, part of the post-procedural ritual was piecing together the remaining bits of the products of conception, to be sure that nothing had been retained within the uterus. This was somehow satisfying for a week 5 or 6 abortion, the mark of a job done competently. For the relatively rare 12 week abortions, any satisfaction was uneasy; as we sorted through the remains, body parts instantly recognizable as a hand, or foot, or bit of the face would appear.

I don’t say this to imply that my discomfort requires a shift in the law as a fetus grows. I say it to express the obvious truth that often goes unspoken, that there is a difference between an early first trimester abortion and a late first trimester abortion, or a second trimester abortion, and we ought at least acknowledge it. When my wife and I looked through images like these below while our babies were developing, unseen, within her body, it was with a sense of wonder at the process of human unfolding. When I look at them now, I see the image from week 6 (a reminder: the first 2 weeks in our obstetric counting are pre-conception, since they begin with the start of the last menstrual period) and feel comfortable with the idea of performing an abortion. Yes, the potential for a human being is all there, but that tail reminds us how far that embryo has to go in its maternal home before becoming a child:

Source: Babycenter

When I look at fetus at 12 weeks, I feel… less comfortable.

Source: Babycenter

What about the other side of this debate? Here, we run into similar, if inverted, problems with our slippery slope. If an unborn child has the same rights as the rest of us, how do we decide at which point an egg, zygote, embryo, or fetus becomes a child, and how on earth do we agree on the matter enough to pass laws?

To review the “pro-life” position, here via the Minnesota Citizens Concerned For Life:

Where does the life of an unborn human being begin? A Catholic accepting church doctrine that life begins at the moment of conception might embrace a ban on contraception, although Griswold v State of Connecticut famously deemed such laws unconstitutional in America. The 2021 Texas S.B. 8 state law supported by Texas Christian organizations, criminalizing those who aid and abet abortions, chose 6 weeks gestational age, roughly when the flutter of an embryo’s developing heart becomes apparent on an ultrasound, as an indicator of “life.” The 2018 Mississippi Gestational Age Act, which appears poised to lead to Roe v. Wade’s overturn by the Supreme Court, cited the “important physiological developments” of the 15 week fetus — by then, organ development is essentially complete — in choosing that particular moment. And, of course, 1973’s Roe v. Wade, clarified by 1992’s Planned Parenthood v. Casey, opted for fetal viability as the dividing line for Constitutional protection, which is generally viewed as 24 weeks into pregnancy. The final line would be birth, and 7 states allow third trimester abortions without restrictions.

So — for those who think abortion is murder, I understand the desire to prohibit it. However, can you get a nation built on religious and moral pluralism to agree on the exact point at which abortion becomes murder? If laws are to be made by popularly-elected legislators and interpreted by the courts, rather than arising from the teachings of any one group’s religious text of choice, no single point in the path from conception to birth could possibly represent an intellectually and morally cohesive “start to life” for anti-abortion legislation.

What we’re left with is a complicated mess.

Roe v. Wade largely shielded us from having to choose our precise location along the spectrum of a woman’s right to do as she wishes with her own body and the rights of an unborn being. That shield is almost certainly about to be lifted.

Even the most steadfast pro-choice advocate has to admit that reasonable people can disagree about the merits of Roe v. Wade as constitutional law. While professing no talents as a legal scholar, the more I read the more I have to acknowledge that it is hardly clear that the Constitution was designed to protect women from having their access to abortion restricted via the invocation of a “right to privacy.”

It hardly matters, though. That federal protection via the Constitution is going away, barring an unexpected about-face from our Supreme Court. That will leave us with the states to decide the future of abortion rights, and we can guess how this will go. These maps from the New York Times give a graphic look into the future:

I used to assume it would be political suicide to vote to limit access to abortions; but that was just geopolitical ignorance on my part. On the contrary, a lot of state legislators in red states would be sticking their necks out just to oppose abortion restrictions.

The oft-cited statistic of “60% of Americans support Roe v. Wade” gave me a false sense of security. Many Americans simply didn’t understand Roe v. Wade; most Americans do not support access to second trimester abortions. Every poll I see shows similar numbers, numbers that have barely budged over decades, like this from Gallup:

About two-thirds of Americans think second trimester abortions “should be illegal.” In other surveys, this number landed at 66% in an AP-NORC poll, 54% in a FOX news survey, and 72% via the Kaiser Family Foundation. Conversely, roughly the same proportion thinks first trimester abortions “should be legal.”

These polls imply where the real battlefield will be for the future of abortion rights. They also show how utterly out of touch recent Democrat-led efforts have been. The Women’s Health Protection Act sought to “codify” Roe’s protection of second trimester abortion — and then some — via federal law despite it being rather clear that the average American doesn’t endorse Roe’s protections up to the point of fetal viability. Republican Senators Collin’s and Murkowski’s more tempered bill, the Reproductive Choice Act, strays less from the holdings of Roe v. Wade, but similarly would have no chance at reaching 60 votes in the Senate, and also fails to match the sentiments of the American public.

That Bernie Sanders suggested nixing the filibuster in order to pass “the strongest possible” laws protecting abortion rights via a simple majority is perhaps the most alarming example of political grandstanding completely out of touch with reality on this issue. Since the Republicans are heavily favored to win Congressional majorities in 2022, and modest favorites to secure the Presidency in 2024, it is quite possible that the first order of business in January 2025 would be passing a federal law banning second trimester abortions.

Circling back to that Washington Post editorial, it’s clear that this country is in a tenuous time in regard to abortion rights. The roughly 20% of Americans who think there should be no restrictions on a woman’s right to access an abortion, at any point in her pregnancy and for any reason, have simply lost, and have dim prospects to regain the nation-wide protections of Roe v. Wade in the decades to come. The nearly 10% of Americans who think all abortions should be illegal are just that: a small minority. And yet, these two groups, outliers from the majority position, are dominating the discussion of the issue and the legislation being considered to fill the void to be left by Roe v. Wade’s overturning. It should not be this way.

Back to Christine Emba:

Constructive engagement requires a degree of transparency and a willingness to compromise. If a public voice supports abortion rights, it’s important to clearly state the limits of those rights, and the rationale behind them. If a pro-lifer wants to restrict abortion, again: define the details like gestational cut-offs and exceptions for cases of rape, incest, and concerns for maternal health, and their reasoning. Ultimately, the states will now be deciding the limits on abortion; the public needs to understand the real positions of the legislators they elect.

There is also space to compromise. Preventing unwanted pregnancies is almost universally desired; shifting from unrealistic approaches (i.e., abstinence) to realistic (i.e., accurate sex education, access to birth control including IUDs, ready availability of the “morning after” pill) can be done in a sensitive way to gain broad support. For the many states that will continue to allow abortions but with new restrictions, there should be general willingness to improve access within the allowed time, to prevent legal and safe abortions from becoming illegal and less safe.

The new reality for people sharing my views is uncomfortable. I favor important life decisions being left between an individual and their physician without government intervention, and appreciated the protections afforded to women by Roe v. Wade. That’s about to be over. Pretending that it’s not, and that we can feel morally smug complaining about the Supreme Court’s composition and the lack of traction behind federal pro-choice laws, will go nowhere. It’s all about discussion and compromise now.

Most blue states, like my very blue Hawaii, will probably make a show of existing or new laws that mimic, or exceed, Roe’s protections. Abortion rights will be guarded in these places. Not antagonizing and risking radicalization of abortion fence-sitters should be the goal of people genuinely hoping to protect access to abortion. Pro-life voices might have to be content in these places to pointing out the gray areas where legislative protections might go beyond public opinion.

Those states in the country’s south and mid-west trending orange in that New York Times graphic I shared earlier are essentially lost causes to pro-choice activists. However, states like Texas and Oklahoma with laws meant to circumvent Roe v. Wade by criminalizing those who help provide access to abortions might walk these laws back with the passage of new bills; here there is space for compromise around these most problematic of abortion laws. Criminalizing abortion results in criminals providing abortions, recalling historical nightmare images of back-alley abortions that I don’t think anyone really wants to relive.

Many red states have committed to so-called “heartbeat bills,” planning to outlaw or severely restrict abortions after 6 weeks. Aside from the suspect physiology underpinning these proposals, there is a pragmatic cost associated with a very early cut-off of this nature: many women do not even know they are pregnant at this point. What’s more, even if a woman has regular periods and the knowledge and interest to track them carefully enough to know that she has missed her period a week or two late, the tiny window between a positive pregnancy test (which are positive about 75% of the time at the week 4 mark, 95% at week 5) and week 6 does not allow much time to organize for an appointment at an abortion clinic that might only perform abortions one day a week (the situation on my island for many years), or for a woman already very busy with work or raising other children who might be asked to have mandatory counseling, ultrasound, or a waiting period as well. It’s not a very reasonable standard unless the true goal is outlawing all abortion, which is not the will of the people in all but the most anti-abortion states.

Campaigns promoting honest conversations about abortion might not be able to shift law in the states most committed to restricting abortion, but possibly could reduce their spread to other states. As per this Kaiser Family Foundation poll, once people were informed that most women do not know they are pregnant at 6 weeks gestational age, those supporting a 6 week abortion ban shifted from an even split to a minority:

Reframing the dialogue on this issue from being fundamentally oppositional to one of respectful and clarifying conversations with education and compromise as the goals might seem pie-in-the-sky in the heat of this moment. However, it is still worthy of pursuit. From the end of Emba’s essay:

There is no single medical, ethical, or philosophical “right answer” to the abortion question upon which our country can agree. We can, however, strive to improve discourse on this contentious subject in order to seek agreements which sincerely reflect prevailing views. We owe women and their pregnancies at least this.