Project Wittenberg

Abortion in Perspective

Part II

A Report of the
Commission on Theology and Church Relations
of the Lutheran Church--Missouri Synod
as prepared by its Social Concerns Committee

May 1984

A. The Legal Status of Abortion

In this section we offer a brief overview of the legal status of abortion and the legal problems it continues to raise in the United States. [13] We recognize, of course, that Christians often differ in their political judgments, and, since moral principles cannot always be translated into legal requirements, such differences are not ordinarily a matter for concern. However, on issues of great moral significance like abortion, it is imperative that we take more than the usual amount of care to understand and reflect upon what the law permits and prohibits.

Certainly the most important legal decisions in the matter of abortion have been the 1973 decisions of the Supreme Court in Roe v. Wade and Doe v. Bolton. [14] Although it is incorrect to say that these decisions permit abortion-on-demand, their practical effect has approached that. In the case of Roe v. Wade, the structure of the Court's decision can be outlined fairly simply. The Court held that abortion could not simply be prohibited, such prohibition being a violation of the woman's constitutionally guaranteed right of personal privacy. The Court also held, however, that this right was not unqualified but was limited by other important interests of the states, if such could be shown to be pertinent here. The question then arises, are there such compelling state interests which should limit the woman's right to abortion?

The Court found two compelling state interests which might justify regulation of and restrictions on abortion: (1) the states' interest in protecting the health of the pregnant woman; and (2) the states' interest in protecting the potentiality of human life.

With respect to (1) the Court, maintaining that in the first trimester of pregnancy mortality rates in abortion are less than in normal childbirth, [15] held that the states' interest in safeguarding maternal health could justify no regulation of abortion during the first trimester. After that point the Court permitted states to establish regulations designed to protect the health of the pregnant woman--e.g, a requirement that abortions be performed only in licensed medical facilities.

With respect to (2) the Court held that states could have no compelling interest in protecting the potentiality of human life prior to the time of viability (when the fetus can exist outside the uterus of the mother). The Court set the time of viability at 24 to 28 weeks of gestational development--that is, approximately the end of the second trimester of pregnancy.

Thus, the force of the Court's decision was to divide a pregnancy into trimesters and to see the potential for regulating abortion grow as each trimester passed. In the first trimester of pregnancy the Court held, in effect, that no restrictions could be placed on a woman's right to procure an abortion (assuming she could find a doctor willing to perform it). In the second three months states could pass regulations designed to protect the health of the pregnant woman but not to protect fetal life. And in the last trimester of pregnancy the states could, if they wished, protect fetal life by going "so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother." (However, Doe v.Bolton [1973] at the same time extended the term "health" far beyond the mere physical well- being of the mother. [16]) Hence, the Court's decision in Roe v.Wade did not require that the unborn child be given protection at any time during pregnancy. It merely permitted such protection to be given during the final three months of pregnancy.

In the decade since Roe v. Wade state legislatures have passed laws regulating abortion, the federal government has been involved in questions concerning the funding of abortion, and new cases have made their way to the Supreme Court. New issues of substantial significance have arisen, issues which had not been specifically addressed in Roe v. Wade.

In Colautti v. Franklin (1979) the Court appeared to modify one determination made in Roe v. Wade. The Court now recognized that the time when the fetus is viable outside the womb is relative to the progress of medical science and cannot be set forever at 24 to 28 weeks gestational development. Hence, in Colautti v. Franklin the Court specifically recognized that relativity and left the determination of viability to the judgment of physicians. The potentially explosive force of this seemingly minor modification becomes apparent when we consider the likelihood that development of an artificial placenta will, in the near future, permit fetuses to live outside the womb earlier even than 20 weeks of gestational development. When that becomes possible, the Court's division according to trimesters will seem increasingly untenable The question as to whether a physician has an obligation only to the pregnant woman or whether the well-being of the fetus (when it is viable) must also be considered has not yet been resolved.

This issue quickly arose in one of the most important decisions to follow Roe v. Wade. In Planned Parenthood of Central Missouri v. Danforth (1976) the Court considered and rejected a Missouri statute which prohibited use of the saline method after the first trimester and required, instead, the newer method of prostaglandin injection. The Court overturned this, holding that it was a requirement not reasonably related to maternal health. Of interest, however, is the fact that the Missouri law clearly sought to view abortion primarily as a "severance procedure" intended to permit the woman to be relieved of carrying the child, but not necessarily intended to result in a dead child. If, especially in the second trimester, some methods of abortion offer greater hope that the fetus may survive the abortion procedure, and if medical advance increasingly makes such fetuses possibly viable, it may be possible to seek legal ways to encourage the use of these methods and to stress the responsibilities of physicians and other medical personnel toward possibly viable infants who may survive an abortion.

The Court has not, however, been eager to face such questions. In Akron v.Akron Center for Reproductive Health (1983) the Court took note of the increasing safety of second trimester abortions and overturned an Akron ordinance which--seemingly in accord with the Roe v. Wade schema--required that second trimester abortions be done in hospitals. The Court held that, because these abortions could now be safely done in abortion clinics, an interest in maternal health could no longer justify a requirement that they be done in hospitals. The Court did not, however, take notice of the other side of medical advance: namely, that viability has been pushed back into the second trimester and that, therefore, greater regulation to protect potential life might be needed. In a related decision, Planned Parenthood Association of Kansas City, Mo., Inc.v. Ashcroft (1983), the Court did uphold a Missouri statute which required the presence of a second physician--to protect the interests of a possibly viable fetus--in third trimester abortions. The day is surely at hand, however, when clear thinking will force the Court to ask whether a similar requirement is not appropriate also in the second trimester.

Another important issue which has arisen in the years since Roe v. Wade concerns government responsibility to fund abortions just as it funds other medical procedures (in particular, childbirth) for people receiving government assistance. In Maher v. Roe (1977) the Supreme Court upheld a decision by the Welfare Department of the state of Connecticut not to fund an elective abortion unless it was medically necessary to safeguard the mother's life or health. In a related case, Poelker v. Doe (1977), the Court upheld the city of St. Louis' decision that its municipal hospitals were not required to provide nontherapeutic abortions, even though they provided care for childbirth. Three years later, in Harris v. McRae (1980), the Court upheld the constitutionality of the "Hyde Amendment" and, in doing so, extended its ruling in Maher v. Roe. The Court now held that the federal and state governments had no obligation to pay even for certain medically necessary abortions. And the Court reiterated its view, first expressed in Maher v. Roe, that the issue of funding was a political question to be settled in the legislatures of the several states and that it was even within the power of the states to seek to make childbirth a more attractive option than abortion. In its decisions about funding, therefore, the Court has made clear that the right of a woman to seek an abortion--a right enunciated in Roe v. Wade--is a liberty, not an entitlement. The distinction is important and is one we should affirm and support. It says nothing, however, about the many abortions which are not publicly funded.

In Roe v. Wade a woman's liberty to seek an abortion was grounded in her right to privacy. The Court began, therefore, by viewing the woman as an isolated individual. It was inevitable that this starting point should raise difficult questions about the relation of a pregnant woman to her husband or (if she is a minor) to her parents. In the decade since Roe a. Wade the Court has also struggled with this issue. In Planned Parenthood of Central Missouri v. Danforth (1976) the Court ruled unconstitutional any attempt to require consent of the pregnant woman's husband to an abortion. Given the starting point of Roe v. Wade, with an individual right to privacy made central, it was no surprise that the Court refused to permit the husband what, from its perspective, would appear to be veto power over a woman's constitutionally guaranteed right. At the same time,we cannot avoid noting that the Court's starting point undercuts the sharing and mutual responsibility inherent in the "one flesh" bond of marriage as enunciated in Scripture.

The issue of parental consent for a minor daughter to have an abortion has proved intractable. In Planned Parenthood . . . the Court overturned a Missouri statute which had required the consent of one parent before an abortion could be performed upon an unmarried woman under 18 years of age (unless the abortion was necessary to preserve her life). In Bellotti v. Baird (1977) the Court considered a slightly more complicated Massachusetts law--which required parental consent for a minor's abortion but also provided for judicial recourse if the parents refused their consent. This too the Court found unconstitutional, holding that it still too nearly granted the parents a veto power. However, in H.L. v. Matheson (1981) the Court upheld a Utah statute which required physicians to notify (not to seek the consent of) parents before performing an abortion on a pregnant minor. The Court held, in addition, that the minor must always have the option of going directly to court to argue that she is mature enough to make the decision herself and that parental notification is unnecessary or damaging. This issue has proved so intractable precisely because the Court has been unable to deny the importance placed upon the family bond in our society. Yet the Court's original decision in Roe v. Wade had recognized the importance only of a woman's right to privacy and of the states' interests in protecting maternal life and the potential life of the fetus. Given that starting point in an ideology of individualism, it has been difficult to find ways to support the family bond within the bounds set down in Roe v. Wade. There may, in fact, be no way to offer such support, short of constitutional amendment.

B. Possibilities Worthy of Christian Support

The legal decisions discussed above, of course, are not to be viewed as providing moral determinations for decisions regarding abortion. However, the legal struggles of the past decade have suggested several possibilities for reducing the impact of these decisions. (1) We should stress the fact that the Court in Roe v. Wade does not in any way attempt to justify abortion morally. The Court only speaks to the issue of whether a state can constitutionally interfere with or impose restrictions on abortion. (2) We should emphasize that the Court has specifically held in Roe v. Wade that abortion on demand is not a protected constitutional right. (3) We should affirm that the grant of power to the woman recognized in Roe v. Wade is a liberty, not an entitlement, and that the government has no obligation to fund abortion. (4) We should work toward recognition of an earlier date for viability, since Roe v. Wade recognizes the power of the state to give some protection to the fetus from the date of viability. (5) We should learn to think of a woman's court-established ability to obtain an abortion as the right to a "severance procedure" aimed not at procuring a dead infant but at relieving her of the burden, perceived or otherwise, of carrying a child she does not wish to carry. That is, even if a woman may have the ability to terminate a pregnancy, she may well not have the right to terminate the life of a child. Thus, a state may impose obligations on all concerned to do all in their power to enable the fetus to survive. (6) We should encourage legislative and administrative attempts to involve parents in abortion decisions made by a minor daughter. The moral requirements of the Fourth Commandment apply here as well as the prohibition given in the Fifth Commandment. (7) We should strive for greater change in the structure of Roe v. Wade, recognizing that such change may be accomplished by means of constitutional amendment, by change in the views of the membership of the Supreme Court, by legislative actions, or by changes in medical knowledge, e.g. earlier viability dates.