OUTLOOK

Commentary and Opinion

Sunday, June 5, 1992

A Truce for the Abortion War

If Only the Partisans on Both Sides Would Read Roe v. Wade

By Robert S. McElvaine

SO THE abortion wars continue. The Supreme court has kept Roe v. Wade alive for a while yet, though nibbling at the edges. Now combatants are digging in for the next round on Capitol Hill and in the streets. The presidential and congressional campaigns will be full of fury. Increasingly, abortion seems to be a classic either/or conflict that defies compromise.

Yet a satisfactory middle ground does exist -- and in fact is already on the books -- if only we would take notice of it. That middle-ground is Roe v. Wade itself.

Before proceeding, let's take a test. Ask yourself what you think the Supreme Court actually said in its historic 1973 abortion decision. How about this: that "the women's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses." Or maybe this that "one has an unlimited right to do with one's body as one pleases."

Those words probably sum up what millions of American believe the court ruled--in brief, that women have a fundamental right to "abortion on demand." If you're among them, you're wrong. Indeed, the court specifically rejected those very arguments made by appellants in Roe. "With this we do not agree," it said.

Ironically, what the court did rule in Roe could provide a way out of the abortion morass. Most Americans clearly are somewhere in the middle on this question, torn by feelings both for the woman with an unwanted pregnancy and for the potential life in her. Most of us yearn for a way to avoid identifying with the extreme proponents of either side. Roe avoids those extremes, leaning toward the interests of the mother early in the pregnancy and then increasingly toward more equal interests of mother and fetus as birth approaches.

The starting point in finding a sensible middle ground is to understand that both sides in this rancorous dispute base their arguments upon the same fundamental assumption, one that is a central and most troubling feature of the modern world view. Both have so completely bought into the modern idea of humans as separated, isolated individuals or "selves" that they seem incapable of perceiving two lives tied together.

The antiabortion people have gone so far into modern disconnection and atomization that they see the fetus, the embryo, even the just-fertilized ovum, as a separate "individual"--despite the plain fact that is in intimately combined with and utterly dependent upon the body of the mother. Many argue further that life begins at conception and that the embryo therefore is an actual (not just potential) human life equal to that of the mother--even though a fertilized egg or embryo is obviously not yet the same thing as a fully developed person.

When the subject is not abortion, almost everyone recognizes the difference between a potential life and an actual life. No one confuses an acorn with an oak tree or an egg with a chicken. Even our churches make a clear distinction between a potential life and a complete human being. When a woman has a miscarriage in the early stages of pregnancy, no religion of which I am aware suggests that she should search for the fertilized ovum, give it a name, have a clergyman perform a ceremony to prepare it for entry into heaven and place it in a grave. Rather, an early miscarriage is understood by all to be an event that produces sorrow because it ends a potential human life.

For their part, the extreme abortion-rights advocates insist that the "individual" concerns of the woman are the only consideration, that a woman's control over her body is an absolute right and should never be abridged in any way. As much modern believers in disconnection as their antiabortion opponents, they refuse to acknowledge that there are two interests to be considered. I have even heard some refer to the embryo or fetus as a "parasite"--transforming one's own potential offspring into an alien organism and making "its" destruction acceptable.

This would seem to be a classic dualistic argument, pitting two mutually antagonistic and irreconcilable principles against each other. So everyone must pick a side and be either for it or against it; there can be no middle ground, just as one cannot have a "partial abortion" or be "a little pregnant." But in fact this analogy is an excellent one for showing how absolutist, dualistic positions can be avoided by taking into account that two, connected "interests" are involved and both deserve consideration.

On one hand, we might agree that just as an embryo is not a parasite, neither is it merely a bit of organic matter that, like a toenail, may be cut off and discarded without a second thought. It is a potential human being. What happens to it ought to be a matter of very careful consideration. On the other hand, we might also agree that the life to which it is tied is more than a potential one; its interests--her interests--must take precedence.

Therefore, once the interests of the potential human life are weighed, if those of the existing human life are found to be clearly incompatible with the bringing of the potential life to fruition, an early abortion is justified. But the further into a pregnancy one (or "one plus") gets, the more nearly the interests of the potential life come to equaling those of the existing life, and so the less justified an abortion is. Approaching this most difficult question with some understanding of the connectedness of the mother and the potential life inside her enables us to realize that there is, after all, such a thing as "a partial abortion"--one which is performed on someone who is "a little pregnant"--and that this is much more acceptable than "a full abortion" on someone who is "very pregnant."

In the end, an either/or choice cannot be avoided--but it is made only after a good deal of thinking about the combined interests of the existing life and the potential life has been done first. If only we could find a way to put this moderate approach into effect. . . .

But the middle way has already been found. It is precisely the basis of Roe v. Wade antiabortion forces have managed to convince most Americans, regardless of their viewpoint on the issue, that Roe was an extreme, pro-abortion ruling. It was not. Given the mythology that has been constructed around this decision, most Americans probably would be surprised to read what it actually says.

The little-recognized fact is that Justice Harry Blackmun's majority opinion in Roe made every effort to balance the two intertwined interests of mother and potential child. This is why Blackmun and the court concerned themselves with "viability" of the fetus and came up with their division of a pregnancy into trimesters. In the first, the interests of the mother are plainly paramount. In the last, those of the fetus are held to be nearly equivalent to those of the mother.

The state's "legitimate interest in protecting the potentiality of human life," Blackmun wrote, " . . . grows in substantiality as the woman approaches term and, at a point during pregnancy, [it] becomes 'compelling.'" He continued: "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb."

The court was less comfortable dealing with the middle trimester and the question of when viability occurs. But it concluded that in "the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion," except in cases where the mother is endangered.

This is hardly the extreme "proabortion" stance that most people have been led to believe the court took. The Roe decision was in fact a remarkable attempt to avoid the sort of either/or, only-one-side-can-prevail thinking that has dominated the abortion debate for nearly two decades.

Americans looking for a middle way in the abortion debate should realize that they already have one. It is called Roe v. Wade and, despite last week's disturbing shift away from the trimester system, it is still the law of the land. What is needed is a reaffirmation of Roe--the real, moderate, balance Roe decision that Mr. Justice Blackmun wrote in 1973, not the extreme ruling that exists in the popular imagination.