ePub 版


Taken from the Appendix of the author's
article, "Abortion and Public Policy:
What Are the Issues?" in the New York
Law Forum, vol. XVII, no. 2, 1971.


NEW YORK, N. Y. 10019


Some of the issues are basic, having to do with tic changes. The reader can casil distinguish these whether abortion should be permissible and legal three categories in the condensed argumentation under any circumstances; others are more specific, below. The author wishes to draw the reader's attendealing with particular aspects of proposed legislation tion to the format of the following presentation. The such as permissible indications, limitations to hospital discussion on the leti paraphrases the issue as presfacilities, etc.; others concern the anticipated difficul- ented by the party raising it; the discussion on the right ties in implementing a law involving moderate or dras- paraphrases the opposing view.


Opponents of liberalization

Proponents of liberalization 1. Life begins at the moment of conception; the 1. Life began eons ago; the question is when does a

fetus has a right to life; abortion is murder human person begin--some say at conception, (**lynching in the womb").

some at nidation, some at quickening, some ar viability, some at birth, some at a later date; the assignment of personhood is arbitrary and disfers among faiths. If abortion were considered by society to be murder, there would be some 30 million women behind bars. It fertilized ora wer considered persons, we would require regis. tration and burial of all spontaneously aborted fetuses (including many expelled with late menstrual flow). A hydatidiform mole starts as a fertilized egg, ends as a mass of cells, and could in no way be described as a person. A blueprint is not a house, an acorn is not an oak, DNA is

not a person. 2. It is just one step from abortion to euthanasia; 2. Abortion and euthanasia are separate issues legal abortion reflects and encourages declining

(though determining the end of the human permorality and loss of reverence for the sanctity

son is as difficult a question as determining the of life.

start); we set speed limits at 60 MPH and do not necessarily then move them to 70 MPH (one step does not necessarily lead to another); reverence for life includes concern for the quality of children born and consideration for the rights

and well-being of women unwillingly pregnant. 3. Promiscuity will be encouraged by legal abortion; 3. Fear of pregnancy is notoriously inefficient

sexual misbehavior should be punished (“she had as a deterrent to sexual behavior. Why should her fun, now let her pay”)

the woman be punished and not the man? Why should an innocent child also be punished? Does the punishment fit the crime?

. B.A., 1959 Cornell University; M.A., 1966 Hunter College; M.S. 1968 Columbia University; Staff Associate, Demographic Division, The Population Council, City of New York.

Proponents of liberalization

Opponents of liberalization 4. In a pluralistic society one religious faith 4. This may be true for less serious issues on which

should not be permitted to impose its views on the various religions differ, but on the question others by law, though it may make every effort of abortion, those who believe it to be equivalent to do so by persuasion.

to murder are duty-bound to make every effort, including legislative restriction, to prevent its occurrence.


Opponents of liberalization

Proponents of liberalization 1. A physician is trained to preserve life, not to I. This is a narrow view of medical responsibility; destroy it.

physicians are also concerned with the quality of life and the preservation of health mental and

physical--of the woman and her family. 2. Abortions in late pregnancy will result in the 2. Late pregnancy abortions are due to a) proced

killing of viable fetuses who will cry in surgical ural delays in hospitals, b) the impossibility of trash cans before they die.

early determination of some forms of deformity and c) changed circumstances or denial of pregnancy--none of which will be legislated away. Improved administration, easier availability of anonymous pregnancy detection and pregnancy counseling, and widespread educational efforts will prevent most women from obtaining abortions-legal or dangerously illegal --late in pregnancy. (Proponents are not in agreement on the issue of determining a permissible gestation limitation by law, many would prefer it to be left to the medical profession's responsibility; others approve a limit of 28 weeks, 26 weeks, 24

weeks, 20 weeks, 18 weeks, 16 weeks, 12 weeks.) 3. Abortions should be limited to hospitals, prefer- 3. These restrictions are mainly attempts to limit

ably with committee approval required and the number of abortions. Proponents are not in weekly or monthly quotas.

agreement on the medical advisability of restriction to hospitals or to hospitals and approved clinics, but they uniformly oppose ob

structive committees and quotas. 4. Abortions should be performed only by licensed 4. This, too, is merely an attempt to limit the

physicians, or only by board-certified obstetri- number of abortions. While proponents ate not cians and gynecologists.

in agreement on the medical advisability of abortions performed by paramedical personnel (nurse midwives) acting under a doctor's supervision, most would agree that an abortion performed by a trained paramed is likely to be safer than one by a psychiatrist or dermatologist; the disagreement lies not in the ability of parameds to perform routine abortions by suction, but in the occasional emergency requiring more highly trained personnel.

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Contraceptive services should be offered instead 5. Of course contraceptives should be more widely of legalizing abortion. (However, not all oppon- available and promoted; however, in the present ents of liberalization would support this sugges- state of contraceptive technology, and given the tion.)

continuing possibility of human error in the use of even the best methods, abortion is needed as a backstop; its use is not preferable to contraception, but once a pregnancy occurs, it is the

only means of birth prevention. 6. There won't be enough physicians and hospital 6. While states which have liberalized abortion

beds to accommodate the mass of women laws may have experienced initial pressure on who will seek abortions.

personnel and facilities, this does not appear to have remained a continuing problem. As deliveries decrease in number and as bungled illegal abortions require less hospital time and space, the legal abortion demand will probably turn out

to be less on balance. 7. Nurses and other hospital personnel will be un- 7. Some may initially find participation repugnant; willing to participate in such an operation.

some may continue to do so; their right to refuse should be granted, but in most situations to date, there have been sufficient personnel to fill in.


Opponents 1. The physician often believes that it is in the best 1. In a matter such as this, it is not moral--or good

interests of the mother to perform an abortion; medical practice-to sacrifice one life unless the good medical practice is deterred by restrictive other is in danger. It would not be correct to laws.

license the killing of other persons, just because some practitioners decided it was good medical

practice to do so. 2. Consider the tremendous costs in hospital staff 2. These may be tragic cases, but alternatives to and facilities and impersonal danger and suffer

legal abortion should be developed instead: adeing of the public health aspects of illegal abor

quate sex information and contraception, facilitions poorly performed; women will abort, one

ties for adoption or homes for unwed mothers, way or another, whatever the law says.

adequate social insurance and housing so that these do not constitute reasons for illegally

aborting 3. Substitute measures will not alleviate the men- 3. Yes they will.

tal and physical health problems associated with unwanted pregnancy, excessive childbear

ing or pregnancies occurring in rapid succession. 4. The original reason for passing restrictive abor- 4. That may be true, but there are now new, com

tion laws was not for the protection of the fetus pelling reasons for retention of the restrictive (there were no or few Catholics in the legisla- laws, whatever the reason for their original pas. ture at the time), nor for the protection of public sage. morality, but for protection of the women from a then-dangerous surgical procedure, more dangerous than childbirth. Since the reverse is now true (childbirth is more risky than hospital abortion), the law ceases to be constitutional.38

* See Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About 10 Arise from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N.Y.L.F. 335 (1971).



Proponents 1. Legalizing abortion in this state will create an 1. This was the warning in Colorado (first state to abortion "mecca" for the entire country.

modify) and each successive state; such has not proved the case. A look at abortion ratios in Hungary, Japan, and even Scandinavia, and a comparative look at ratios in the United States will suffice to set at rest the description of New York, or Baltimore, or Denver as "abortion

capital of the world." 2. Legal abortion abroad has not eliminated illegal 2. Mere modification doesn't, in fact, eliminate ilabortions.

legal abortion; it only makes a dent. But farreaching liberalization (as in Japan and Hungary) does drastically curtail it (as reflected in decreased deaths and hospital admissions for “incompletes”), but the residual can be attributed to remaining restrictions and lack of privacy within the legal registration system.


If abortion had then been legal, Beethoven 3. And possibly Hitler wouldn't have been born wouldn't have been born, and possibly some of either. We do not miss the many persons not you senators here wouldn't have been born, born because they were spontaneously aborted. and my lovely third child wouldn't now exist.

If Beethoven's father had coughed at the critical moment, a being other than Ludwig would have been born instead.

4. Legal abortions should be limited to state resi- 4. If the abortion "mecca" argument fails to predents only.

vent liberalization, then last-ditch efforts to curb the numbers of abortions performed takes the form of suggestions for residency requirements. Not only are they probably unconstitutional but the medical delivery system has been found adequate to handle the influx of non-resi

dents wherever laws have so far been liberalized. 5. Abortion is genocide; it is an attempt by people 5. Under restrictive laws, poor women suffer

in power to eliminate poor and Third World most, as reflected in their disproportionate people.

mortality and underrepresentation in the few hospital abortions performed under restrictive laws. Legal abortion will be made available on a voluntary basis to those women who want to use it-there is no suggestion for coercive measures in a call for liberalization.

Proponents 1. Legal abortion will decrease the number of un

wanted children, battered children, child abuse cases, and possibly subsequent delinquency, drug addiction, and a host of social ills believed to be associated with neglectful parenthood.

Opponents 1. Society would do better to make substitute

provision for unwanted children with adequate institutions and benefits to enable each child to have a warm and loving home. Many women who do not want a child when they discover their pregnancy do change their minds and love the child when it is born--and vice versa. It cannot Proponents

Opponents statistically be proven that children born to women denied legal abortion fare any worse than those presumably willingly conceived; irresponsible parenthood stems from many causes and should be dealt with accordingly; unwanted children can turn out to be creative

genuises, contributing much to society. 2. Legal abortion will decrease the number of ille- 2. Although we are alarmed by the surging ingitimate births.

crease in illegitimacy, society must find alternate ways of preventing it sex education, adequale contraception or of dealing with it once it occurs adoption services, child care allow

ance, jobs for uriwed women. 3. Legal abortion could decrease the tragedy of the 3. Deformed children have as much right to live as birth of deformed children.

others; many deformed persons Icad normal and constructive lives. If you sanction the disposal of deformed fetuses, you may soon also decide to do away with the elderly and the useless, or the

non-productive adult. 4. Legal abortion provides the only humane dis- 4. Tragic as these cases may be, that is not

position of a pregnancy resulting from rape or adequate justification for the destruction of incest.

human life. (Opponents do, however, sometimes find rape so abhorrent that they would make

an exception.) 5. Under restrictive laws, rich women with know- 5. That is a matter of discriminatory application

how obtain safe legal or quasi-legal abortions, of the law, not of its substance. Neither group while poor women bear unwanted children or are should seek or obtain an abortion, safe or unsafe, butchered by back-street abortionists.

legal or illegal. 6. A bad law, unenforced and unenforceable, fos- 6. Many laws are difficult to enforce; that is not ters disrespect for the law in general.

sufficient justification for their eradication. The population explosion compels us to take 7. The United States is not experiencing a populaevery means necessary to curb our growth rate. tion explosion. Problems of pollution and enSince contraception alone seems insufficient to vironmental degradation are due more to other reduce fertility to the point of no-growth, and causes (increased affluence) than to population since population experts tell us that eliminating growth. Growth is good for business. If growth unwanted fertilty would go a long way toward seems detrimental to our quality of life, then we achieving replacement ferility, we should permit should step up family planning programs utilizall voluntary means of birth control (including ing contraception only, avoiding the necessity for abortion) so as to avert the necessity for coer- including abortion. If you can use abortion to cive measures.

control the size of the population, then you will

also justify eunthanasia and genocide. 8. Legal abortion will result in a reduction in wel- 8. There you are--genocide, the elimination of

fare rolls. (As has often been remarked, the “undesirables." Society must make adequate abortion reform effort makes strange bed- provision for its needy --not merely ensure their fellows.)




Proponents 1. The father should have some say, or equal 1. He's not a “father” (any more than she's a say, since it's his fetus too.

“mother") until a child is born. He may contribute 50% of the genes, but he does not have to bear and care for the outcome. A husband's consent clause violates the woman's right to

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