Chapter 9

The Lawyer's Perspective

IN THE END, the policy of organized society with regard to abortion will be decided through the legislative process and carried out through the legal process. Clearly the lawyer will have a special interest in these processes, but there is dispute about the precise nature of his role. In one view, which may be analogous to the policy of judicial restraint observed by some members of the judiciary, the lawyer qua lawyer has no special competence to decide which ethical values and political principles should weigh most heavily in the enactment of legislation. His technical skill and learning are needed to help assure that a proposed statute conforms to constitutional requirements and to adapt its approach to the necessities of sound administration. Outside these areas the views of lawyers ought to carry no extraordinary weight.

A contrary opinion is that the training and experience of the lawyer uniquely equip him for the work of reconciling opposing interests and of giving proper' weight to all factors' in attempting to resolve a complex social issue. This second opinion, as well as the first, was represented among participants in the discussions of the legal panel.

This chapter will be devoted to a discussion of those viewpoints on abortion most dearly derived from legal considerations.

One participant in the discussion of the legal panel pointed out that to some lawyers the present state of the law provides a basis for challenging the concept that the fetus is a human being whose right to life is no more subject to cancellation than any other innocent person's. The very existence of a special term for the act--"abortion"--it is argued, dilfferentiates it from murder, and the sanctions applied for illegal abortion are much less serious than the penalties for deliberate homicide. Though the woman who undergoes an abortion is necessarily a party to the act, a conspirator and accessory, she is never prosecuted. This suggests a generalized social percep- tion, implicitly recognized in law, that while pregnancy is ordinarily to be respected and supported, termination of pregnancy is not the same thing as the taking of hurnan life. But it was also pointed out that, while acknowledging the existence of these semantic and legal gradations, they can be interpreted differently. The use of such terms as "abortion" and "infanticide," they argue, simply recognizes the existence of real difference in circumstances; so also does the law's application of differing sanctions. Abortion is punished less severely than murder because it threatens society less seriously--and protection of society, not the assignment of degrees of moral guilt, is the chief business of the law. Further, that in awarding the right to vote at the age of eighteen or twenty-one, society does not suggest that the seventeen-year-old youth is subhuman. The law frequently discriminates among classes of persons, and necessarily in a somewhat arbitrary way; but it reaches the limit of its power of discriminating when the right to life is in question.

The large number of illegal abortions performed annually country occupied the attention of the lawyers as well as the social scientists. To some it suggested a parallel with the nation's experience during the Prohibition era, when an enormous enforcement effort failed because "the people' did not believe in the law. In the case of'abortion, the law is ignored and evaded by many, and in some "legal" abortions it is distorted by interpretation. Dean Bayless Manning of the Stanford University Law School commented: "It cannot be so, I think, that a respect for the rule of law can be significantly furthered by such a process.

"We have had," said Dean Manning, "and we still have in this country, a deep abiding, recurrent, chronic, I would say, instinct to make things criminally offensive, to make them the subject of our criminal codes whenever we decide that we don't like them." Acknowledging that moral values have relevance to law, Dean Manning said that not all acts regarded as socially immoral ought to be proscribed by criminal law. "The criminal provision might be wholly unenforceable and unadministrable. Enforcement might entail a terrible invasion of people's privacy. Or enforcement might require an enormous input of both manpower and funds in the administration of criminal justice," an expenditure out of proportion to the result desired. On the point of public support, he said: "The law and especially the criminal law, gets itself in very serious trouble whenever it grows significantly out of congruence with something like the basic central attitudinal positions and norms of a society which it is seeking to regulate.

Speaking to a related point, Professor Louis B. Schwartz of the University of Pennsylvania Law School said the criminal law is used improperly when it is employed "to force a moral view upon a large body of dissidents. To use the criminal law in this way is to approach heresy trials, and there is a powerful constitutional inhibition against such use of the criminal law. The criminal law is itself an obvious evil. It is designed to hurt people. Sometimes you kill them. Sometimes you put them away in prison. In any event, you disgrace them. The justification lies in the achievement of more good than the harm done immediately, and that is a kind of relativistic morals which is at the heart of our whole [abortion] controversy."

Rebuttals offered to these views can be postponed in this presentation in the interest of grouping related arguments. A Comment with some bearing on Professor Schwartz's was made by Judge Orman W. Ketcham of the Juvenile Court of the District of Columbia. It is clear, he said, that a basis for the abortion laws is 'reverence for life. "But I think," said Judge Ketcham, "that there is also another factor and that is a reverence for human self-determination. I am always skeptical about societies or laws that decide that they know better than the persons most intimately concerned what is best for them,"

On this basis and because he believes that "probably the major cause of our juvenile problem today is unwanted children," Judge Ketcham concludes that "the criminal law should withdraw from its present position in this country of prohibiting the termination of pregancy within the first twenty weeks of pregnancy." Society should see to it, however, that "a mother, before making this important decision...receives judgment and concern and understanding."

Respect for individual freedom is also an important component of the position articulated by the American Civil Liberties Union. The ACLU holds that the decision to have an abortion is a private decision in which the state should not interfere. In this view it is a civil right of a woman to seek to terminate a pregnancy; a physician likewise has the right to perform or to refuse to perform an abortion, without the threat of criminal sanctions. The ACLU believes that abortions should be performed only by doctors, governed by the same considerations as other medical practices. The Union questions the constitutionality of laws which permit abortion only to save the life of the mother, offering these grounds: such laws are vague; as applied, they deny equal protection of the law to the lower socioeconomic groups; they are so unreasonable and abitrary as to constitute a deprivation of life and liberty without due process of law; they arbitrarily deny to physicians the liberty to practice their profession in accordance with their best professional judgment; they are a denial of the right of marital privacy, with its concomitant right to decide whether and when to have children, in violation of various constitutional provisions held to have been contravened in the Griswold case by the Connecticut statute forbidding the use of contraceptives; they are possibly violative of the First Amendment clause forbidding the establishment of religion and guaranteeing separation of church and state.

Opposition to the arguments just reviewed derives in part from dissent on the facts, in part from differing interpretations of the meaning of the facts, in part from philosophical considerations. Four arguments based on "legal consideration" for change might be considered. One is the argument: "The law is often violated, therefore, repeal it" If this logic were accepted, the fact that there are millions of car thefts a year would indicate that we would repeal the law against larceny as far as it applies to automobiles. Second, a variant of this argument is: "The law is not enforced, therefore, repeal it." If this argument had basis, the laws against perjury, bribery, and gambling would all be candidates for repeal. Every lawyer knows that the perjury statutes are flouted every day in American trial courts and only if perjury is committed in an important criminal case is prosecution ever attempted. Why aren't the perjury laws repealed? For three reasons: (1) they do provide a restraint on the worst professional perjury; (2) they prevent perjury from becoming a way of life in court; (3) above all they educate the well-intentioned average man and tell him plainly that perjury is antisocial even if often committed by a large minority of witnesses. Similarly, opponents of liberalization of the abortion laws argue that the laws constitute a restraint on the worst professional abortion mills. Above all, they educate the well-intentioned average man seeking society's judgment, The educative force of the law is, indeed, always more important than the specific criminal penalties it imposes.

Advocates of change reply that abortion is not like perjury. They say that unlike perjury, there is no minority group which believes perjury ethical, while with abortion, there is. Those who believe that the legal repression of abortion is justifiable as an educational device compare the abortion legislation to civil rights legislation.

The massive program of school desegregation--enforced by the civil and criminal contempt powers of the Federal courts--is exactly such an attempt to educate the minority who conscientiously objected to desegregation. If the advocates of civil rights believe that criminal contempt power can be used to educate those who oppose civil rights, they had no reason to object on libertarian grounds to the use of criminal law to inform citizens that abortion is an infringement of the rights of others.

A fourth argument advanced for change is that the law is enforced chiefly against the poor. To this, opponents reply that nearly all of the criminal laws bear most heavily on the poor both in terms of the poor being more likely to be apprehended and more. likely to be inadequately defended and so more likely to be punished. To say that the criminal law is unequal in its effect is a reason for reforming our system of criminal justice. Opponents of change argue that it is absurd to pick out one law --The abortion law--and say "repeal this because it is unequal." There is no reason for picking out this law unless on other grounds one favors abortion.

The argument that abortion laws resemble those permitting heresy trials calls forth the rejoinder that heresy trials attempted to control belief and opinion, whereas abortion laws are concerned with behavior. As has been noted, some maintain the behavior to be controlled should he regarded as private conduct, not the concern of the state. Proponents of this approach also point out that they are urging a permissive role for organized society; no one is saying that parents should be coerced into having abortions. Here the most fundamental conflict comes into view once more. Critics of the movement for change say that a "permissive" law, or the withdrawal of criminal law from the field, would grant to two or more persons the right to conspire against the life of another. By this kind of permissiveness, they believe, society would abdicate its re- sponsibilities. Since life and death are in question, the argu- ment runs, the burden of proof lies heavily on the side which says the act of abortion should be regarded as private conduct of no concern to society. In support of this view, Professor John T. Noonan of the University of California School of Law at Berkeley cites the relatively recent progress of the law in developing the concept that tbe child is not merely the property of its parents. "The problem of the battered child is a common problem today," he says, "and the necessity of law intervening to protect against parental cruelty is recognized in this area. One cannot trust every child to its parents' instincts. All of human history shows the need to educate many parents not to treat their child as their thing, disposable of at their will.' The laws against abortion are a basic protection against parental. egotism. These laws prevent the embryo from being treated as the property of the parents because the parents engendered it.

Speaking from a similar perspective, Professor David W. Louisell of the University of California School of Law at Berkeley introduces the notion of due process, pointing out that the law forfeits the legal right to life only for grave reason and with procedural safeguards. In a comment on the ALl code, Professor Louisell has written: "The proposed legislation may forfeit life for reasons potentially not grave in relation to the seriousness of the forfeiting itself, and wholly without any process of law--unless the opinion of two physicians can he considered as such. The proponents of the legislation sometimes seem to submerge the legal and moral issues by categorizing the entire problem as one for medical judg- ment. He believes the law should carry the presumption that the unborn child would want its chance at life. "If the child's right to life is to be weighed for example against a parent's desire to avoid the prospect of a gravely defective child, the ethos of our law would seem to require that the scales be judicial ones, which should register decision only after due process of law. The unborn child, like the infant after birth-- and like a defendant, even one whose guilt of a serious crime may appear obvious--is entitled to representation."

Against the view that abortion laws, to the extent they are founded on belief that the fetus is a person, constitutes an establishment of religion, it is evident that this belief need not derive from specifically theological tenets.

Obviously [Professor Noonan observes], in the assumption that abortion is a loveless act is involved a belief that some- thing approximating a human person is being destroyed, and I suppose that that is in some ways part of the difficulty. Does that assumption about a human person require some kind of theological insight or theological belief? My own inclination is to answer that it does not except in the very broadest way in which a belief that other men are to be respected as equals requires some belief that there is a sacredness in man. I suppose that many humanists will believe in a sacredness of man whether they believe in a Creator of that man or not. To put it another way, the basic assumption is that there is an equality among human beings, which means that you cannot take one being's life to benefit another's. That equality would seem to be the foundation of 6ur democtatic society. So, without. speaking of souls at all, one must have some kind of concept of humanity which makes possible this equality of treatment of beings. If the fetus is to be treated as different, real distinctions have to be developed which can show the difference.

That improbable creature the impartial observer, having reviewed the debate, may conclude that some of the arguments pro and con are put forth more as debating points than as substantive, seriously intended observations. The debate, however, is not endless; it will reach a conclusion through the political process. In society the most fundamental conflicts, insofar as they affect practical social policy, must finally be resolved through legislative decision. In fact, this kind of conflict leads to one of the most important functions of law, its role as an instrument of compromise. In this case, as in so many others, there is no middle ground wholly congenial to both contending factions, since there is no midway position between acknowledging and denying the humanity of the fetus. The eventual solution will reflect in some part the quahty~of the argumentation, but perhaps depend more on the tactics adopted and the factions' estimates of their own and their rivals' strength and unity. Concessions made in such circuinstances need not be construed as compromises of principle; they reflect informed judgments of what is achievable in given circumstances through politics, the art of the possible.

At the center of most debates over changing the abortion laws is the proposal of the American Law Institute. The ALl proposal, to recapitulate briefly, would permit abortions in cases where physicians believe there is substantial risk to the physical or mental health of the mother, substantial risk that the child would be born with a grave physical or mental defect, or when the pregnancy resulted from rape, statutory rape, or incest.

The American Law Institute proposal provides a legal guide which depends, partly and unavoidably, on medical opinions regarding health. The philosophy behind the ALl proposal was that since it is doctors who perform the operation, and since they are as expert as any other group, they constitute the logical point of control. Others, induding some doctors, question this philosophy. Professor Louisell's objection that' the ALI proposal neglects the element of due process and wrongly reduces abortion to a purely medical matter has already been cited.

The inclusion of rape as a justification for abortion apparently raises fewer theoretical difficulties. There is some concern, however, that this provision enhances the possibility of false claims of rape. The states which have broadened their abortion laws have confronted this by requiring that the rape be reported to law-enforcement officers, or that law-enforcement officers certify that they believe a rape did take place. Some believe, however, that this burden of proof is too great and too susceptible to delay, and some doctors have therefore proposed that the specific indication of rape be subsumed under provisions permitting abortion for reasons of health or mental health.

Among those who believe abortion is sometimes or always permissible, and who are dissatisfied with present abortion laws, attitudes toward the ALl proposal are divided. It should be noted, first, that the ALI formulation would not grant abortion to married women who do not want more children, whether for socioeconomic reasons for other reasons of personal circumstances, nor would it legalize abortion for unmarried women who do not want to bear an illegitimate child. The proposal, then, covers only a minimal percentage of current abortion cases; it would not make a substantial reduction in the number of abortion cases and would not significantly equalize the opportunity to obtain an abortion.

Some supporters of the ALl plan agree with its approach because they believe the specific indications it recognizes are those most justifiable in ethical terms. They would reject abortion on request, or abortion on socioeconomic grounds, as reflecting either inadequate respect for the fetus or a radically egalitarian and libertarian social philosophy. The ALl code also draws support, however, from some who believe it moves ahead as far as possible at this time either toward further liberalization or toward complete withdrawal of the criminal law from concern with abortion. But some backers of liberalization believe that the effect of adopting the ALl proposal will be to ease the pressure for reform rather than to solve the problem as they see it, especially the problern of demands for abortion rising out of depressed soda! and economic conditions.

Opponents of abortion are likewise somewhat divided in their response to the ALl suggestion. As mentioned in chapter ~, Father Robert F. Drinan, S.J., Dean of the Boston College Law school, would prefer to see the criminal law withdraw entirely from abortion control rather than enact any statute specifically approving certain kinds of abortions. "Such a repeal," he has written, "would not mean that the state approves of abortion but only that it declines to regulate it. If one assumes that the law teaches minds as well as regulates conduct the potential teaching impact of a law which exalts the su: I periority of a mother's health over her child's right to be born and of a legal system which specifically permits the annihilation of predictably deformed or retarded children can hardly be exaggerated. Such a system creates a new and revolutionary hierarchy of rights in which the rights of the living to happi ness transcend the rights of the unborn to existence. A law which is silent about the abortion of nonviable fetuses says no such things."

This thesis, however, is challenged by others who share Father Drinan's basic attitude toward abortion. Existing abortion law, it is pointed Out, already enumerates one ground for abortion-to protect the life of the mother-without evident disastrous consequences in other aspects of American law. They argue also that his counterplan is not a true compromise but would permanently remove all legal protection from all nonviable fetuses. They believe that if compromise is necessary it should be aimed at saving as many fetuses as possible, and at as rational regulation of abortion as possible.

By extension it apppears that adherents of this approach, if forced to choose, would tend to favor a compromise following the Swedish model, since under this plan it is possible to have an administrative process which is at least quasi-judicial and in which some representation of the rights of the fetus is possible. Under such a plan there would be specifically indicated grounds for abortion, with panels of doctors, or of doctors, social workers, and others, making the decision in each case; there would also be provision for social services women making abortion requests. Persons responsible for - authorised abortions would be suhject to civil penalties--a fine or conceivably, a suit for damages. Though the key issue of fixing the grounds for abortion would still be sublect to debate, the system would remove abortion from the field of criminal law and would serve to express the interest of society in the fetus, the mother, and the famlly.

A compromise approach, not necessarily associated with any fixed position on the morality of abortion, calls for postponement of further changes in abortion laws pending the availability of more information. In this perspective, our present knowledge of the whole range of issues connected with abortion is inadequate and gives no assurance that we can legislate appropriately. The enormous range between the upper and lower limits in estimates of the number of legal abortions is one indicator of this. In addition, some psychiatrists believe that far more research must be done to learn the mental-health effects of granting or withholding permission to terminate pregnancy. The full effects of varying abortion policies in other regions--Scandinavia, Japan, Eastern Europe--have not been measured; despite cultural differences it should be possible to accumulate data relevant to our own situation. It has also been suggested that further action should await compilation of results in the three states which recently broadened their abortion laws, thereby treating the states, as Justice Holmes put it, as laboratories of social experiment.

Pressure for change in existing law generally rises from the contention that the law as it stands prevents or impedes amelioration of significant problems of society, and/or that it works injustice on some elements of the community. In the case of abortion, those who oppose changes in the laws would not necessarily deny the existence of a social problem or of individual inequalities. They are likely to maintain, however, that easing of restrictions on abortion is a shortcut solution, both wrong in itself and likely to lead to further deterioration of social and moral values. They would urge instead direct attack on the social problems connected with the demand for abortion: an intensification of the war on poverty, better care for defective children and support for their families, efforts to remove the stigma of illegitimacy and to lessen the strain on motherhood outside marriage, social services specifically aimed at serving the needs of women for whom a new pregnancy creates intolerable burdens. Such measures, they believe, would give evidence that our society both respects the sanctity of life and wishes to enhance thc quality of life for all.

Epilogue