Abortion

[Jonathan Buhacoff]

Proposal:

No female shall be prevented from using contraceptives to prevent a pregnancy. This would violate the female’s right to parental control. This includes a “morning after” pill to prevent a pregnancy before an embryo is formed.

No female shall be forced to abort a pregnancy. This would violate the mother’s right to life and the unborn child’s right to life.

No female shall be prevented from aborting a pregnancy that threatens the life of the mother. This would violate the mother’s right to defense. While the unborn child’s right to life is a concern, any attempt to save the child without the mother’s consent which results in harming or killing the mother is a violation of the mother’s right to life. The mother is uniquely and solely qualified to make such a difficult choice. The choice itself is only available when an assessment by a qualified medical professional indicates the pregnancy threatens the life of the mother and that it’s not possible or highly unlikely for both the mother and the child to survive childbirth. The right to defense can be exercised any time after such a qualified assessment is made and only while it remains valid. A qualified assessment is invalidated if a more recent qualified assessment finds that it is possible for both mother and child to survive childbirth, or that it is possible to save the child but not the mother.

No female shall be prevented from aborting a pregnancy that would result in a child with a genetic disorder or incurable disease that would result in early death or a lifetime of suffering. This would violate the mother’s right to parental control. The mother is uniquely and solely qualified to make such a difficult choice. The choice itself is only available when an assessment by a qualified medical professional indicates the pregnancy would result in a child with a genetic disorder or incurable disease that would result in early death or a lifetime of suffering. Currently this can happen as early as the 10th week of pregnancy and as late as the 22nd week of pregnancy, but these markers are not intended to limit the choice — the assessment may happen any time new information is available. There are people who believe this is morally wrong and that there should be an obligation to give birth and care for the child no matter the circumstance. Such people may offer mothers in this situation to immediately adopt the newborn child and care for the child for as long as the child lives. Such offers are subject to the mother’s right to consent. If a mother accepts such an offer, it should be in the form of an irrevocable signed contract that if childbirth is successful the adoption is immediately in effect and the adoptive parents have legal custody of the child from the moment of birth.

No female shall be prevented from aborting a pregnancy caused by rape or incest. This would violate the mother’s right to parental control. This choice is only available if the mother reported a rape or incestuous relationship and a paternity test confirms the identity of the father as the rapist or incestuous father. To balance the right to life of the unborn child, this choice is only available if the mother reported a rape or incestuous relationship and a paternity test is initiated at the earliest possible opportunity, and must be exercised within a week of obtaining the results. Currently the earliest opportunity to confirm the identity of the father is with a non-invasive paternity test as early as the 7th week of pregnancy, and for which the results may take a week to obtain. The unborn child is still an embryo in the 8th week.

No female shall be prevented from aborting an unwanted pregnancy. This would violate the mother’s right to parental control. To balance the right to life of the unborn child, this choice is only available from the moment of conception until the unborn child becomes a fetus. This transformation happens in the 9th and 10th weeks of pregnancy. A pregnant female may notice a missed menstrual period or start experiencing morning sickness, and at-home pregnancy tests will show a positive result as early as the 5th week of pregnancy. This means a mother typically has 2-3 weeks to make this choice from the day the pregnancy was noticed or confirmed, between the 5th week and the 8th week.

After childbirth, no mother shall be prevented from waiving all parental rights and placing with qualified adoptive parents a child afflicted by a genetic disorder or incurable disease, a child conceived by rape or incest, or an unwanted child. This would violate the mother’s right to parental control. The mother is uniquely and solely qualified to make such a difficult choice.

No female shall be prevented from traveling to another state or country for the purpose of seeking an abortion where it’s legal and available. This would violate the female’s right to travel.

Discussion:

This topic is related to reproduction.

The topic of abortion is multi-faceted and many people have strong beliefs on this topic. The following discussion attempts to apply principles used throughout the other proposals to create the proposal that, hopefully, would be acceptable to a most people.

The term female in this proposal refers to the sex that has the capability to become pregnant and birth children. It refers to a physical condition regardless of the female’s gender identity. The overwhelming majority of females identify as women. The term mother in this proposal refers to the pregnant female, or female parent, regardless of the female’s gender identity. The term unborn child in this proposal refers to embryo or fetus at any stage of pregnancy from conception to immediately before birth.

The balanced approach is to allow abortions while protecting the mother’s right to life, right to defense, or right to parental control; and to prohibit abortions at all other times to protect the unborn child’s right to life.

When the mother or child is at risk

Pregnancy sometimes results in the death of the mother, the death of the unborn child, or the death of the child during or shortly after childbirth. Without some level of medical knowledge and technology, it’s not possible to know with any certainty what will happen and if tragedy strikes we must bear the sorrow and live on. But knowledge and technology allow us to predict with a significant amount of certainty that a pregnancy will be successful, and even react to save the mother or the child if something unexpected happens. This ability to predict and react brings with it a moral dilemma: if it’s not possible for both the mother and the child to survive the pregnancy, but it is possible for one or the other to survive, what do we do?

It’s important to note that if it’s possible for both the mother and child to survive, that must be the goal and there’s no dilemma. And if it’s not possible for either of them to survive, then it’s a sorrowful situation but also without dilemma. The dilemma only exists when we are certain that only one can survive and that it could be either the mother or the child.

When the dilemma exists, someone must make a choice. Before we discuss the choice itself, we must first identify who must make the choice. Who has the moral, ethical, and legal authority to decide who lives and who dies? Who would be most impacted by that choice, possibly for the rest of their lives? The person most impacted by that choice is the mother. It is the mother who must choose. If someone has the opinion that the unborn child is also a person, and therefore a candidate for person who would be most impacted by that choice, the immediate practical problem is that the unborn child is unable make that choice. If the mother is unconscious or otherwise mentally impaired, then the closest caretaker of the mother and child must make the choice because that person will be living with it for the rest of his or her life — a partner, or parents, or siblings, or close family. If none of those people are present or able to make the choice, or if they refuse to choose a course of action, the doctor must do it.

A first possible course of action is to dismiss the medical prediction and attempt to deliver the child and if something goes wrong, to live with the sorrow. The decision to attempt to deliver anyway is protected by the right to life of the mother and the child. No person shall harm or kill another except in defense, or law enforcement, or lawful combat. If the decision is to continue, then there’s no need for defense and the other two exceptions are not applicable to a childbirth situation. This is the decision that can be made when there is genuine optimism about things turning out well, and also is the decision that can be made when nobody wants to make a difficult choice.

A second possible course of action is to save the child. This is only a distinct course of action if there is something that can be deliberately done, other than attempting to continue the pregnancy or childbirth to save both the mother and the child, that can be predicted with some certainty to result in the death of the mother and the life of the child. If the mother makes this decision, it is heroic self-sacrifice. If a future mother knows that this is the choice she would make, it’s a good idea to put it in writing so that, in case the mother becomes unable to make a choice in the critical moment, the mother’s partner or parents or doctors can in good conscience make the choice on the mother’s behalf.

A third possible course of action is to save the mother. This decision is controversial to some people, but it shouldn’t be. People who would not want to make this decision should not do it. They are in control of their own bodies. They don’t have any moral, ethical, or legal authority to prevent someone else from making their own decision. Consider a person who has just been in a car accident that was not their fault. If they stay in the car they will die, so they want to get out. Does anyone have the moral, ethical, or legal authority to force them to stay in the car and die? To not even try to save themselves? Or to force them to save any other passenger at the risk that they themselves would die in that attempt? The victim must make their own choice. Not everyone would make the same choice, and that’s a benefit of living in a free country. It’s important to remember that in this situation, the decision to abort the pregnancy is the mother’s choice, and that choice is only possible if a qualified medical professional predicts that continuing the pregnancy or the delivery is highly likely to result in the death of the mother or the child and presents this choice to the mother (or the mother’s delegate if the mother is unable to make the choice). This could happen any time up to and including childbirth.

The right to life prohibits harming or killing an unborn child except in defense, or law enforcement action, or lawful combat. In all of these cases the harming or killing of an unborn child would not be the intent of the action, but it would be a consequence of the violence inherent in an attack or defense. If the mother’s life is at risk due to the pregnancy, an abortion is considered a defense of the mother and would be allowed (but not mandated) at any time that, in the opinion of a competent medical professional, the mother is likely to die before, during, or shortly after childbirth if the mother continues the pregnancy. Defense of the mother is an exception to the right to life of the unborn child, and the doctor is protected from liability by the right to defense when performing an abortion to save the mother’s life.

When there is no threat to the life of the mother

The right to parental control prohibits forcing someone to reproduce. This means if a female becomes pregnant by accident or without consent, the female may choose to abort the pregnancy. Examples include rape, incest, contraceptive failure, or failure to use contraceptives.

When the pregnancy does not pose a risk to the mother’s life, the right to defense does not apply and there are two conflicting rights that must be balanced: the female’s right to parental control and the unborn child’s right to life. For this reason, it’s important to define stages of pregnancy in which an abortion is protected by the right to parental control.

Before becoming pregnant, the use of contraceptives to avoid pregnancy must be allowed. This includes a “morning after” pill to prevent a pregnancy.

The second month of pregnancy is when most pregnant females realize they are pregnant because of missing a menstrual period and starting to experience morning sickness. There are no externally visible signs of pregnancy yet and at this stage the future child is still an embryo. By the fifth week of pregnancy (counted from the day after the last menstrual period), an at-home pregnancy test will show as positive.

Non-invasive prenatal paternity testing can be done as soon as seven weeks into pregnancy. It might take up to a week to get the results of this test. If the mother is uncertain about the father’s identity, it can be confirmed in the seventh and eighth weeks of pregnancy.

Genetic testing to identify life-threatening or serious medical conditions that will affect the child can be done starting the 10th week of pregnancy but not all tests can be done that early and some information might not be available until the 22nd week of pregnancy.

To balance the protection of the mother’s right to parental control and the unborn child’s right to life, the mother must have an opportunity to notice the pregnancy and exercise the right to parental control by making a decision to have an abortion during an early stage of pregnancy for any reason, followed by the ability to exercise the right to parental control by making a decision to have an abortion later in pregnancy if it is discovered that the child has a genetic condition that would prevent the child from developing and living normally.

In this proposal, there is no specific point at which the right to parental control is outweighed by the unborn child’s right to life, but instead there phases with different criteria for balancing these two rights.

The first phase is early pregnancy, starting at conception and ending when the embryo becomes a fetus. For the purpose of this discussion we will assume that is the end of the 8th week of pregnancy, although the transformation may not be complete until the end of the 10th week. This phase is defined for at least two reasons. First, the fetus has an umbilical cord and heart beat. Second, it’s far enough along so the mother is able to complete a non-invasive prenatal parental test to confirm the identity of the father if there is uncertainty.

In this proposal, after the eighth week, an abortion would only be allowed to protect the mother’s right to life as discussed above unless the mother finds out that the pregnancy was due to rape or incest or discovers that the unborn child has a genetic condition that would prevent the child from developing and living normally. There are a variety of reasons why this not be apparent to the mother at first. This means it’s possible to determine that a pregnancy is due to rape or incest before the eighth week and exercise the right to parental control during that time.

No right to abortion

To be clear, in this proposal there is no “right to abortion” and no person shall be compelled to assist a pregnant female with an abortion. This means the legislature may enact laws limiting the conditions under which licensed medical professionals may assist with an abortion, as discussed above. The lack of a right to abortion means that if a female seeks an abortion but there is nobody available or willing to help with it, there is no liability. For example, if it’s late in the pregnancy and the mother’s life is not at risk and there is a law prohibiting elective abortions at that stage, a doctor would be criminally liable for assisting in that situation. Or, for example, if there are no doctors willing to assist with any abortions in that area, even if the law allows it.

The right to travel allows the female to seek out doctors in other areas that may be allowed and willing to assist. It would be a violation of rights for a state to prohibit travel for the purpose of seeking an abortion where it’s legal and available.

Adoption of a child who has already been born is different. Placing a child with adoptive parents must happen legally in the state or country where the mother lives. If a mother travels to another state or country with a child and returns without the child because of placing the child with adoption, the mother could be charged with child abandonment.

Other perspectives

The following extreme perspectives are presented for contrast with the approach outlined above.

No abortions allowed. Some people consider the fetus to be an unborn child immediately upon conception and are against abortions for any reason. A complete ban on all abortions would violate the right to life, right to defense, and right to parental control. People with such a perspective must be limited to declining to have an abortion themselves, and must not be allowed to violate the rights of others.

No abortions allowed except to save the life of the mother. This is an improvement over a total ban, but would still violate the right to parental control of the mother in cases of rape and incest. In these cases, the mother would know early in the pregnancy that it is a result of rape or incest, so a law restricting when an abortion can be made for this reason would not be violating the right to parental control.

All abortions allowed. Some people have the opposite view, that a female should have complete control over her body and should be able to choose an abortion any time before the child is born, even just before delivery. This perspective implies a belief that the unborn child is not a person and does not have individual rights. While this perspective accepts the possibility of abortion in protection of the mother’s right to life, defense, and parental control, it does not accept limitations on abortion in protection of the rights of the unborn child and from that perspective it is deficient.

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