Late abortion: the new clash in the Choice Wars

Ann Furedi says Philadelphia’s ‘Baby Butcher’ scandal shows exactly why we need a principled defence of abortion – as late as necessary.

Ann Furedi

Topics USA

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Anti-choice campaigners were handed a gift last month in Philadelphia, when a Grand Jury indicted Dr Kermit Gosnell for murder in the deaths of one woman and seven infants at an abortion clinic.

Dr Gosnell’s Women’s Medical Society in West Philadelphia carried out very late abortions – badly and unlawfully. This is how Katha Pollitt described it in the Nation: ‘Blood-spattered floors. Cat faeces. Broken equipment. A 15-year-old giving anaesthesia. Two women dead and countless more maimed and injured. Third-trimester fetuses delivered alive whose spines were then severed by the doctor… This is what illegal abortion looks like.’

Illegal abortion is a key phrase here, and Pollitt rightly protests that it has not been pointed out often enough that what Gosnell was doing was illegal. In Pennsylvania it is not legal to perform abortions after 24 weeks, although in some other American states it is. But nowhere is it legal to slit the throats of born-alive fetuses. And nowhere is it legal for untrained, unlicensed employees to carry out medical procedures. Gosnell’s treatment of women was indefensible – both clinically and legally.

Pollitt, who has written a lot about abortion, suggests that this awful clinic could only exist for two reasons. Firstly, because Gosnell’s business was fuelled by desperate, poor women, who accepted such dangerous and degrading treatment because they felt they had no better alternative. Secondly, because legislators in Pennsylvania had been so focused on eliminating abortion that they had failed to regulate it properly as healthcare.

William Saletan, who has also written a lot about abortion, mostly for Slate magazine, sees the episode differently. For him, it is not about a rogue doctor providing illegal, dangerous and degrading care, but rather is an ‘occasion for pro-choice advocates to reflect on the limits of reproductive freedom’. Like Pollitt, Saletan identifies two problems – but they are not the same ones that Pollitt sees. ‘Throwing Gosnell in jail won’t solve the problem’, says Saletan, because ‘the women who came to him at 26, 28 or 30 weeks will show up somewhere else. And if you won’t say no to them, you will have to say yes.’

Saletan sees it like this. Firstly, it’s a problem that some women seek third-trimester abortions. Secondly, it’s a problem that some of us find this understandable and believe these women to be deserving of safe legal services. So he spends a quarter of one of his recent pieces on Gosnell – titled ‘The Baby Butcher: pro-life absolutism and the grisly abortion scandal in Philadelphia’ – railing against my recent spiked essay on the morality of late abortion.

Ultimately, it’s all a matter of individual values and what you think is right and wrong. Was ‘the wrong’ done to the women by a rogue doctor? Or was the wrong done also by the women themselves, who, for whatever reason, were driven to seek a late abortion? And is wrong done by those of us who think that such women should be able to get help – from good doctors who give good legal care? Because such doctors do exist in the US, Britain and elsewhere.

Saletan has turned a scandal of unlawful, incompetent abortion into a grisly show-and-tell, an opportunity to fuel public distaste for later abortion procedures and to demand a ban on the few later abortions that take place legally. If we want to be generous, we could say that he at least has an excuse – after all, his many recent Slate pieces show how little he understands about late abortion and their circumstances. But Saletan has set the tone for others. Frances Kissling, a former pro-choice activist, has followed his lead, claiming in the Washington Post that public support for abortion in the US has declined because some pro-choice activists’ support for late abortion has ‘eroded the “pro-choice” brand’. Kissling, who should understand the reality of late abortion because she once led the US National Abortion Federation, now argues that, ‘We need to firmly and clearly reject post-viability abortions except in the most extreme cases’, and ‘we must end the fiction that an abortion at 26 weeks is no different from one at six weeks’.

I see things somewhat differently. But then, as I’ve explained elsewhere, my support for women’s ability to make, and exercise, reproductive decisions has never been based on the kind of messaging that experts tell us is best for the pro-choice ‘brand’.

Late abortion is something that many people find a problem, even if they support early abortion. But that is usually because they think it is unnecessary, preventable and requested too frequently. None of these things is true, and we have a responsibility to explain what is true rather than collude with ill-informed prejudice. We certainly should not fuel such prejudice.

I am not sure who maintains the fiction that Kissling wants to end, that an ‘abortion at 26 weeks is no different from one at six weeks’. It is mind-numbingly obvious that it is different: obvious to women, obvious to doctors and obvious to policymakers. A woman who is six weeks pregnant is only barely late for her period and can have an early miscarriage induced at home by medication issued by a clinic. A woman at 26 weeks is usually visibly pregnant, feeling fetal movement, and an abortion often means an induced labour.

However, whether these two kinds of abortion are morally different is a separate and contentious matter. It depends on whether you are prepared to accord the early embryo the same moral status as a potential person as the late fetus. Personally, I believe early and late abortions carry the same moral burden because I believe that all abortions end a potential human life. And further to that, I believe that the moral responsibility of decision-making, whatever the gestation, should rest with women and their doctors, because they most understand their circumstances and the results of their actions. Others, Kissling and Saletan among them, seem to believe that early abortion is okay but late abortion is not because the early embryo is less of a human. And Saletan and Kissling, like many politicians, seem to think that the responsibility for deciding what is right and wrong should rest with them.

As for rejecting post-viability abortions ‘except in the most extreme cases’ – isn’t that simply what women who request late abortion feel already, along with doctors, advocates and policymakers? Even where third-trimester abortion is legal, the numbers are tiny (even when the number of early abortions are many) – because women who do not feel their circumstances are extreme do not request them and because doctors who do not feel a request is extremely justified do not agree to it. Do we think that the women who exposed themselves to Gosnell’s butchery would have done so unless their circumstances were extreme?

The issue comes down to who should decide what is an ‘extreme case’ and whether the moral reasoning of women and their doctors must be policed.

Of course, clinical practice must be regulated and the law must be upheld. But where later abortions are permitted by law, and where clinics perform them well, why should we demand that they cease?

If Kissling is right, and public support for late abortion has been eroded, perhaps it is evidence that we need to challenge public perception, not acquiesce to it. Perhaps we need to explain why these late abortions are necessary and why women and their doctors are competent to make moral decisions and to act on them responsibly. This is not a matter of ‘messaging’, or staying true to an abstract pro-choice principle. It is because nothing else meets what women, and society, need.

To accept that doctors can run responsible late-abortion services is to extend our own ethical imagination and vision and our trust of others.

Fifteen years ago, there was huge controversy in Britain when, for the first time, official statistics were published breaking down the grounds for third-trimester abortion in Britain and the exact week of gestation in which the pregnancy was terminated.

All the abortions were carried out on grounds of fetal abnormality – abortions for other reasons are not permitted after 24 weeks in the UK (except to save the life of the woman). The range of abnormalities read like a litany of human misery. Twenty-eight late abortions involved fetuses affected by severe brain malformations, 19 had chromosomal abnormalities such as Down’s syndrome. The rest had malformations of the skeleton, urinary system, heart and lungs, blood disorders or a congenital infectious disease.

I balked on seeing the lateness of the gestation at which some of these pregnancies were terminated: six at 35 weeks or later. The one that really jolted me was the abortion at 38 weeks, because my own son had been born just months before at 38 weeks – just two weeks before he was due and not even early enough to be called ‘premature’. So, what to think about this anonymous woman?

You may see this woman as somebody who needed to be constrained by law and forced to complete the rest of her pregnancy. You may think that she did not realise the enormity of the decision she was making, or that she and her doctors thought no more of her pregnancy than she had in its earliest weeks. You may think that she is less capable of ethical reasoning than you are, and therefore needs you to intercede against her amorality. You may feel that, regardless of her circumstances, she is a problem because she is helping to erode the pro-choice ‘brand’.

Alternatively, you can wonder at the awfulness of the situation that made this woman, with her doctors’ approval, decide that it was better that the pregnancy ended without a live birth, even so close to term. In which case, you might conclude that she must have been the most desperate woman in the world, and the most deserving of all the help she could be given.

Of course, the scandal of Gosnell’s clinic undermines public trust and confidence in abortion doctors. And it is not surprising that public tolerance of later abortion is fragile. Those of us who understand abortion have a duty to explain late abortion – as it is – and to justify it. Thinking about that 38-week abortion, and what that woman and her care team must have thought and felt, is what keeps me committed to support for abortion ‘as late as necessary’.

An American feminist once said that a woman does not want an abortion like she wants an ice-cream cone or a Porsche. She wants an abortion like an animal caught in a trap wants to chew off its leg to be free of the trap. This is never truer than of late abortion. The likes of Saletan and Kissling should consider restraining their personal desire to interfere in the nuanced and intimate considerations of abortion doctors and their patients: their decisions are hard enough as it is.

Ann Furedi is chief executive of BPAS, the British Pregnancy Advisory Service

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Topics USA


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