Freedom of Choice Isn’t Total : Abortion Stance Yields to Neutral Legal Principles

No national debate since the clash over slavery has generated as much emotion as the struggle over abortion.

Following the Supreme Court’s decision in the Missouri abortion case, Webster vs. Reproductive Health Services, and its promise (or threat) to hear several more abortion cases this fall, the clamor has reached a near frenzy. Reflecting the intense passions of the protagonists, the dialogue involves ear-splitting accusations that each side is invading fundamental rights.

In place of reasoned analysis, however, each camp wraps itself in a slogan that, standing alone, everyone would embrace. Yet somehow everyone must choose between being “pro-choice” or “pro-life.”

Part of the problem is that each warring faction seems more intent on declaring its self-righteous position to be self-evidently correct than on testing it according to any set of principles and values that apply outside the abortion arena.

Tested by “neutral principles” that would otherwise command virtually unanimous support under the American legal system, it is the pro-choice position that crumbles--at least to the extent that pro-choice forces insist that society has no right to enact restrictions on the opportunity to elect abortion.

Freedom of choice is not itself a principle that either public law or private morality treats as an absolute. Rather, the true principle is a bit more complicated. We have the right only to choose between alternatives that are legally and morally permissible. Thus, to focus exclusively on the “right to choose” begs the question whether society may properly limit the options.

This principle applies with full force even in matters as intimate and personal as family status and child-rearing, the setting for the abortion issue. A woman may choose to marry or not, but she is not permitted to choose to marry a man who already has a wife. Similarly, if the man has tired of his marriage, he may choose to divorce his wife, but society may properly deny him the right to choose to free himself by murdering her.

Similar values constrain the definitions affecting child-rearing. The pro-choice position involves the general proposition with which few people could disagree--that a woman has the fundamental right to decide whether to have a child. Once again, however, it becomes necessary to acknowledge that other values may appropriately control the timing of that choice and the method of exercising it.

Even when the U.S. solicitor general was urging the Supreme Court to abandon its recognition of a fundamental constitutional right to obtain an abortion, he agreed that the court should not retreat from the earlier ruling on which the Roe vs. Wade abortion decision rested. In that earlier case, the court had decided that the constitutional interest in protecting the privacy of the marital bedroom made it intolerable for the government to forbid the use of birth control techniques and thus to prevent conception. That aspect of the right to choose not to conceive a child is not seriously under attack.

The abortion debate simply frames the question: What other mechanisms are open to implement a woman’s decision not to raise a child? Putting aside for a moment the period of pregnancy, it is well established in our society that a woman may properly deal with an unplanned--or rethought--pregnancy at least by offering the child for adoption, but not by deliberate infanticide or even casual abandonment.

The right to choose to have a child is no less precious than the right not to, but this right is equally subject to restriction. Even an earnest but childless couple may not offer their infertility to justify kidnaping. Thus, it does not really advance the inquiry very far to label the issue a matter of choice, since these obvious examples illustrate that the right to choose is not absolute.

Pro-choice proponents suggest that constraints of these types have no legitimate relevance. They assert that abortion is fundamentally different because the decision whether to allow a fetus, once conceived, to come to term involves no clash or interests or competing personal rights. It is said to be merely a matter of a woman’s “right to control her own body.”

Yet virtually everyone agrees that once the interests of another “person” enters the picture, the abortion equation shifts dramatically. This prompts the elusive quest to decide when “human life” begins. Unfortunately, the answer to that inquiry involves so many medical, philosophical and moral assumptions that it may not provide much useful guidance for determining when society may properly restrict abortion.

The pro-choice position emphasizes that at the early stages of pregnancy, the fetus has little or no capacity for thought, as measured by brain-wave activity. That fact is irrelevant to the pro-life groups, who rely on their adamant but unprovable insistence that a fetus is “human life” from the moment of conception, because that is when God infuses the fertilized ovum with a human soul. Based on observable physical characteristics, the pro-choice advocates conclude that during those early stages there is no other human life involved.

Is this sincerely held doubt that a fetus represents human life a legitimate basis for the assertion of an absolute right to obtain an abortion? The law generally goes to extremes to avoid even a serious risk of danger to a person, even where there is some doubt about whether a human being is in danger. Thus, if a hunter hears something rustling in the brush, we expect him to hold his fire if there is a real chance that it is a toddler (or another hunter) on the other side of the woods, not a deer.

The neutral principle involved is that reasonable doubts are to be resolved in favor of protecting what may be a human being. Although regard for this principle may not oblige society to outlaw abortion at any stage of pregnancy--and on that issue the absolutist pro-life position also goes too far--it is certainly consistent with traditional legal principles for the legislature to decide to give the “benefit of the doubt” to the fetus.

Other generally recognized principles apply even more clearly to some of the other disputes that are swirling around courts and legislatures. One highly charged dilemma involves the clash between the woman’s claim to assert complete control over her body and the biological father’s interest in the fate of the fetus. Pro-choice proponents challenge laws that would give the father a veto over the proposed abortion or at least require notice and an opportunity to dissuade the woman from choosing to abort the fetus. Those restrictions are viewed as improperly interfering with the woman’s dominion over her person.

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Even without focusing on whether the fetus has protectable interests of its own, that argument conflicts with other traditionally accepted principles. At the very least, creation of the fetus involves what the law--and biology--would treat as a joint venture. Especially in a marriage, the very creation of the fetus is the result of what is aptly regarded as a partnership. It is fatuous to assert that the biological father has no interest in the decision whether to abort the fetus. Although the fetus is growing in the woman’s womb, the father has contributed half of its genetic material. If the abortion does not occur (and no other misadventure intervenes), the fetus will be the father’s child.

In any joint venture or partnership, the parties have obligations to one another, including the duty to exercise reasonable care in safeguarding the fruits of the partnership. Of course, with the rights of partnership come obligations. If the woman brings the fetus to full term, the father has not only the moral obligation but also the legal duty to nurture and support the child. While it is true that in some instances the natural father may default in performing those obligations, those lapses by some hardly support the conclusion that no biological father is entitled to participate in the abortion decision.

Even clearer is the legitimacy of laws requiring parental notification and consent before a minor may have an abortion. Even on the premises invoked by pro-choice advocates, it is difficult to see why a minor must be constitutionally immune from this kind of parental supervision--even though, by definition, it is coming rather late. Assume that abortion involves nothing more than an ordinary medical procedure to remove unwanted tissue from the young woman’s body and that there is otherwise a “right” to undergo such a procedure. Tested by those premises, though, the right to an abortion cannot be meaningfully distinguished from the right to have a “nose job” or breast reduction (or enlargement) surgery.

Perhaps those surgical procedures would be in the minor’s best interests, perhaps they would not. But few people regard it as an unconscionable, much less unconstitutional, infringement on the young woman’s capacity to elect surgery if the law tells both the girl and her doctor that they may only proceed if her parents approve. That is the neutral principle that validates the requirement of parental notice and consent in the abortion setting.

There is one other volatile issue on which neutral principles, honestly applied, undercut the pro-choice advocates’ furious response to the Supreme Court’s Webster decision. In that case the court decided that the government has no constitutional obligation to make public money available for abortions. The attack on that decision brands it as callously frustrating the fundamental right to an abortion, especially the right of poor women to choose this course.

The legs of this argument are too wobbly to support it. From the pro-choice perspective, abortion is a fundamental right that flows from a woman’s right to control her own body. That right, so the argument runs, includes the right to choose elective surgery when the woman concludes, in consultation with her doctor, that she would be well off to take that step. If the decision is that prosaic, though, it is difficult to understand why the “right” stands on any different footing from the right to have otherwise desirable elective surgery--a tummy tuck or a tightening of the skin around the eyelids or neck.

Comparison with these other types of elective surgery is not intended to be flip or patronizing. Rather, it shows that according to relatively clear, neutral principles the conclusion that a person has a “right” to choose to have elective surgery does not mean that the government is trampling on that right when the legislature decides not to subsidize its exercise. Thus, the Supreme Court has firmly settled that there is a constitutional right to engage in interstate and foreign travel, and the government may not affirmatively interfere with its exercise. But no one seriously contends that respect for this principle requires taxpayers to fund trips to Disneyland or Paris.

This comparison with otherwise applicable and accepted principles of public policy makes it unnecessary to resolve the sincerely held but inherently unprovable antitheses on such value-laden questions as when “human life” begins. Whether resting on religious beliefs or secular presuppositions, that debate involves articles of faith. History has shown that the law is too blunt an instrument to change personal tenets, and it should rarely even try to do so.

If this highly personalized issue is cast loose from these principles and addressed in myopic isolation, the pro-choice battle cry appears compelling. Yet when measured by conventional principles, neutrally applied, virtually all forms of abortion regulation have ample justification in American constitutional law.