"Abortion: Law, Public Services and Decision"
by Russ Kleinbach  

In SOCIAL DEVELOPMENT ISSUES,  
Volume 7,  Summer 1983,  number 2 

There should be a distinction between (a) proscriptive law, (b) public service programs, and Q personal ethical decisions. With reference to proscriptive law and public services, society should collectively guarantee the rights (and their actualization) of each of us. With reference to personal ethics, we should fulfill our individual obligations to the rest of us. Collectively we ought to provide pregnancy prevention information and materials, abortions, and services for desired term pregnancies.  

This paper is primarily concerned with a social policy on the question of abortion and only secondarily with personal ethics. Therefore, I will begin with a discussion of proscriptive law and public services. I am here thinking of law in its proscriptive or prohibiting function, and of public services in the popular meaning of public taxation for the provision of public services for all who wish to use them, e.g., public school, public libraries, public health clinics and hospitals. After discussing the law and public services, I will address what for me is the most difficult aspect, i.e., the personal decision of whether and when to have an abortion.

The position I am taking includes the following statements:

1. There should be a clear distinction between: (a) proscriptive or prohibiting law, of which there should be as little as possible concerning "personal" decisions; (b) helpful public service programs, of which there should be as many as are necessary; and (c) personal ethical decisions, which should be based on obligations to self and others, and not on self-rights. With reference to proscriptive law and public services, we should collectively attempt to guarantee the rights of each of us. With reference to personal ethics we should attempt to know and fulfill our individual obligations to the rest of US. 
2. Collectively we as members of a society ought to do what we can through (a) education, (b) pregnancy planning and birth control, and (c) the establishment of financial, counseling and adoptive support systems to reduce the number of unwanted pregnancies and give full support to those women 
3. Abortion is a non-preferred medical procedure and, for the well-being of everyone involved, should be done as infrequently as possible. 
4. The 1973 Supreme Court Decision on abortion is essentially a good decision. 
5. Welfare and all medical insurance and disability policies should cover fully both normal pregnancies and elective abortions, and of course complications connected with each.

I am addressing the question of Law and Public Services in the light of the following criteria. I believe that these criteria are (a) reasonable and logical, (b) consistent with an emerging world wide consensus of human experience and testimony, (c) consistent with available empirical evidence. The criteria: 
1. We are co-persons, social in nature and responsible for each other's well-being. 
2. A society is healthy and civilized to the degree that its laws and structures enable, encourage and facilitate its citizens in making healthy decisions and in acting creatively. A society is repressive and uncivilized to the degree that its laws and structures proscribe personal behavior and inhibit creative action. 
3. Every individual should have a right of access to what is necessary for the self-actualization of his/her human potential. This right of access does not include the body or bodily processes of another individual. 
4. Every individual should have the right of effective participation in his/her life decisions. 
5. The principles of justice should be universal, there should be reciprocity and equality of human rights, and respect for the dignity of human beings as individual persons.

To gain a perspective on the desired role of law with respect to abortion, I would, as others have done, like to draw a parallel between pregnancy and the donation of body parts for transplant to save another's life, or the use of one's body to maintain another person's life.1 The example in our recent past is the case of Robert McFall (who died of aplastic anemia) and his cousin, David Shimp.

The Story: Robert McFall developed aplastic anemia, a usually fatal disease in which the bone marrow does not produce enough blood cells and platelets. Doctors recommended a bone marrow transplant. The one person who qualified as donor (McFall's cousin) refused to make the donation. McFall asked the courts to order his cousin to give the donation. The courts refused.

Judge John P. Fleherty said that even though Shimp's decision was "morally indefensible," to force the operation on an unwilling person would defeat the sanctity of the individual, and that to "require forcible submission to a medical procedure and to forcibly extract bodily tissues causes revulsion to the judicial mind."2

I agree with the judge, that the decision to use one's body or parts of one's body to host or maintain another should be a legally free choice of the potential host. Through law we may tax our property, through education we may encourage sharing of our bodies, but we ought not to force the donation of an individual's body. Such law would violate the most elemental aspects of individual integrity and democracy.

In the case of giving parts or all of your body to maintain another person, the decision can be made (and often must be made) before the giving begins. And if this is a long term giving, for example, the giving of a series of blood donations or skin grafts, the donor might conceivably stop giving midway through the program because of mental or physical complications, unless, of course, one were under contract prior to the beginning of the process.

Abortion can be looked upon as the withdrawal of bodily life support on the part of the mother. In the case of planned pregnancies the situation is parallel to the giving of parts of one's body, over a period of time, for maintaining another person, and the same variables apply to the possibilities for stopping the process. However, the parallel changes when we consider the unplanned pregnancy because the maintenance process has begun without intentional decision. And while the decision to abort a planned pregnancy may at times be considered a breach of an assumed responsibility, the situation is very different in the case of the unplanned pregnancy. Ceasing bodily support of a fetus or anyone else cannot be looked at as a breach of duty except where such a duty has been assumed in the first place. In this case, the first moment of real decision is when there is an actual pregnancy about which to decide.

The vast majority of abortions are performed for girls and women who did not plan their pregnancies, and because of age, finances, marital status or career do not desire a child at that time. The few women who plan their pregnancies and then desire an abortion probably do so because of complications in the pregnancy or in their personal or social life which develop after the beginning of the pregnancy.

However, even though the moral questions and the variables to be considered are different between the planned and unplanned pregnancy, I believe the decision in both cases should be free of legal restraints at least to the degree established by the 1973 Court decision. My position on transplants and both types of abortion is still that no one, before or after birth, child or adult, should have the legal right to be dependent upon the bodily processes of another against that person's will. A right to life and the right of access to what is necessary for self-actualization should not guarantee having either a legal right to be given the use of, or a legal right to be allowed the continued use of another person's body, even if one needs it for life itself.

While I have spoken of law in terms of the prohibition of abortion, I see social service programs (which are also established by law) in terms of their helping function. Community services for individuals in need are developing in western liberal capitalist societies as the means for guaranteeing every individual in society at least minimal access to those goods and services necessary for his/her human development and for living a reasonably comfortable life.

Public services as a concept and policy accepts social stratification, but also accepts the liberal position that, among other things, to be human requires that a person effectively participate in decisions concerning his/her life. To effectively participate in decisions requires at least (a) absence of legal restraints, (b) access to all relevant information, and (c) access to material resources necessary to actualize the decisions. Without the material resources one can have only the idea of decisions and not actual decisions.

Access to necessary material resources as a right has been explicitly denied by the U.S. Legislature and U.S. Supreme Court in the Hyde Amendment and the Maher (1977) and McRae (1980) decisions. What these decisions in effect say is that (a) although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation, i.e., poverty and (b) the constitution does not confer entitlement to such funds as may be necessary to realize all the advantages of the freedom of choice.3

With reference to abortions, what the community is or should be doing is providing all women access to the material resources and services necessary to actualize a life decision. As in all other cases of public services, some members or groups may disagree for various reasons with the decisions of users. However, of overriding importance is the democratic principle that each citizen be able to effectively participate in his/her life decisions. This is particularly true in issues involving one's body and self.

In this context I believe that public services should be concerned with the prevention of unwanted pregnancies, and provide all people of puberty age with full information on pregnancy prevention. I also believe we should guarantee a pregnant woman full free optimal pre-natal and delivery care, and adoption placement if she wishes to deliver and put the child up for adoption, or full free optimal counseling and abortion services if she wishes to have an abortion. ,

If there are no restrictions on elective abortions beyond those of the 1973 Supreme Court decision, and if social and health care programs provide all citizens with (a) a thorough education on and easily available pregnancy prevention material and devices, and, (b) a full range of counseling and financial support systems for both those women who seek abortions and those who wish to carry their babies to term, then there will be many fewer abortion decisions to be made and those that are made will be much less restricted by legal and financial considerations, and thus more open to social and ethical considerations.

The discussion thus far has dealt with social responsibilities of the rest of us toward those people making personal decisions regarding the having or performing of abortions. Let us now turn to the problem facing a person making the decision of whether or not to have an abortion, and by extension the problem facing those who are close to a woman facing this decision.

I know of no better or healthier criteria than Paul Tillich's understanding of "love" and of "'justice."4 I understand Tillich to mean that to do the "loving" thing would be to do that which brings about the most fulfilling relationship between (a) self and Self, (b) self and others, and (c) self and the rest of nature/world/God. And to do the "just" thing is to do that which brings about the "fulfillment" of individuals "within the unity of universal fulfillment."5  This perspective differs from one which focuses on one's rights, and instead focuses on an obligation to the fulfillment of self and others, and the care and nurturing of relationships.

Using these criteria, an individual ought, in my opinion, to do that which is most supportive and creative with reference to: 
(a) One's relationship to the people around one, with whom one lives, works and plays. This usually means one's spouse, relatives (including present and future children), friends and colleagues. The overall relationship to one's children may be enhanced by an abortion, if for example, one is 16 years old and not yet ready to have a child, or one is 32 years old with 6 children, and at the limits of one's physical, emotional and financial parenting capacities. The important point here is to evaluate a particular decision in terms of one's life long involvement in all relevant relationships. Parenthetically, from what I know of the situation, it is this criterion which should have obligated the cousin to give the bone marrow transplant to Robert McFall. 
(b) One's relationship to the larger society and the rest of nature. It is at this point that questions of population growth rates, and the social costs of unwanted children must be addressed. It is also the point where one is aware of the desires of non-fertile parents who wish to adopt, and the effect of abortions on those who perform them. 
(c) One's own mental, emotional and physical well-being. It is at this point that one weighs such things as one's physical and emotional maturity, one's parental readiness, and one's educational and career development. 
(d) The maximal fulfillment of all members of the society. If we as individuals are to make particular decisions with reference to abortion, in a patterned way to further this universal fulfillment, we will have to make the particular decisions so that persons become parents when they are ready and desire to become parents.  This will mean that particular potential people will never be born.  However, over generations of time people will be born and develop, and if the patterns of conception and parenting are planned and desired by parents, the overall fulfillment level of the general population will rise.

It is hard and somewhat tragic when these criteria are brought to bear and a decision is made to abort a particular fetus. And there are clearly times when this sense of tragedy should outweigh other considerations, such as personal feelings, convenience and financial cost. But these decisions should be made by the persons involved and as free as possible from legal and financial restraints.

We should also remember that we cannot avoid making these hard decisions about the beginning, quality and ending of life. Right now we are continually deciding who shall live and how well, or who shall die and how rapidly. We do this in wars, in courts, in school systems and in hospitals. We make decisions about abortion, IUDs, birth control pills, the rhythm method, and sterilization. We cannot avoid these hard decisions and therefore we should make them in the light of criteria which provide for the maximum democracy and human fulfillment for everyone.

In 1969 a couple I know well, living in Vietnam, selected and adopted two orphans from among the abandoned children in Saigon. They chose relatively healthy ones, because 50% of the children from which they were choosing would die before the age of five anyway. They reasoned that since so many would die anyway it was better to save two of the healthier ones for survival. In the same manner as individuals/couples are choosing to have only two children rather than "however many God chooses to send them," these families are preventing the births of countless individuals, and they are choosing the optimal time in their own lives to become parents. I believe this pattern of planning is necessary for the maximal fulfillment of all members of the society and I believe that abortion as an option is necessary for that planning to be carried out to its fullest.

Footnotes