An Open Letter to the Open Minded

Every abortion decision involves a conflict of values. The rights of the developing unborn child are in conflict with the rights of the pregnant woman. Every physician who cares for pregnant women is caring for two patients—the pregnant woman herself and the unborn child. The pregnant woman frequently is called upon to act in a way that primarily is oriented toward the welfare of her unborn child. She may be asked to optimize her diet, abstain from smoking, or drink alcohol in moderation to protect her fetus. She may even be called upon to submit to procedures such as intrauterine transfusion or various fetal surgical measures to improve the condition of the infant without producing any direct benefit to herself. There is some disagreement about the ethical obligations of the mother in each instance, but few would claim that a mother may act with callous discard for the welfare of the fetus. No one would claim for example, that a woman is free to take Thalidomide during the first trimester of pregnancy.

The long tradition of legal constraints against the practice of abortion in the United States was derivative of English common law, operative in colonial times during the framing of the Constitution, and codified into laws of every state for over a century. This tradition was interrupted in 1973 by the Supreme Court in its Roe v. Wade and Doe v. Bolton decisions. The legalization of abortion was based on a constitutional right to privacy, but it was contingent on a declaration by the Court that the pre-viable fetus lacked personhood. It should be emphasized that the Court was discussing “personhood” in the legal sense of standing before the Court. It was not considering personhood in a broader philosophical or metaphysical sense and, in fact, specifically refrained from a decision as to when life begins.

The existence of biologically independent life in the unborn from the time of conception is supported by the following observations:

  • Human life can be made to begin under in-vitro conditions by the fertilization of an ovum by sperm.

  • The zygote and embryo thus produced are independently viable and not “part-of” the Petri dish or the uterus into which they will be eventually implanted.

  • Criteria widely recognized as characteristic of “life” rather than “death”  (e.g., heartbeat. electroencephalographic activity) are present early in the first trimester.

Unborn children have a unique dependency on their mothers, and they will continue to be totally dependent on others long after they are born.

The existence of life is intrinsic and demonstrable. The existence of “personhood” is extrinsic and conferred by consensus, at times arbitrarily (the Supreme Court, for example, in the Dred Scott decision declared black slaves to be non-persons or chattel for purposes of the law). The Harvard Conference on Abortion, in both its ethical and medical committees, concluded unanimously that life begins at fertilization. Expert testimony before the East Committee in the senate regarding the beginning of life fell into two categories: 1) life begins at conception (majority view) or 2) when life begins is uncertain (minority view).

If we conclude that when life begins is uncertain, we have a serious quandary. If we conclude that a human life or a human person does not exist until some arbitrary stage of life after conception (e.g., implantation, nervous system development, viability, or birth) we may feel free to carry out lethal measures against pre-born individuals against whom we have passed this judgment. If we are incorrect, there is no remedy for the individual who has thus suffered wrongful death. If, on the other hand, we extend protection to all stages in the human continuum, we avoid the wrongful death without causing any injustice to the unborn individual in the process. It has been customary in other contexts in the American experience to act in favor of life where the existence of life is uncertain. When there is a coalmine cave-in, for example, we do not board up the shaft but rather we dig for survivors. In almost every instance, we continue to dig even when we are morally convinced that the oxygen supply has been long exhausted. It would seem reasonable to act similarly with regard to unborn children. That is, presume that they qualify for protection unless and until we can be certain that they are not live human persons.

Recently, in San Francisco, an unborn child was partially removed from the womb in order to have a renal tract obstruction repaired. After the surgery, the child was replaced in the womb to continue the pregnancy. Was this a person while out of the womb and then a non-person again when back inside? Or, since the procedure involves the removal of the lower half of the body from the womb, did the child achieve personhood for its buttocks but not for its brain? These are the scientific anomalies of the Supreme Court's decision.  No wonder Justice Sandra Day O’Connor has said that Roe v. Wade is on a collision course with itself.