The neglected common ground on abortion

Abortion is one of the most polarizing issues in American politics, made even more toxic by the Supreme Court’s decision to overrule Roe v. Wade. It doesn’t need to be. Pro-life and pro-choice people should be able to agree on policies that would actually reduce the abortion rate. To accomplish that, though, opponents of abortion would have to bring themselves to vote for, and even run for office as, Democrats.

Republican-controlled state legislatures are racing to criminalize abortion, which may soon be largely illegal in most states. That won’t stop most abortions. We learned a lot about the effect of such restrictions from the Texas law that banned the procedure after six weeks –— a time when many women don’t even know that they are pregnant. The law reduced the state’s official abortion rate by 50 percent, but so many women managed to get abortions in other ways, with abortifacient pills or by traveling out of state, that the actual rate of abortion declined by only 10 percent. (The nationwide effect of the new state bans will likely be similarly small.)

With the end of Roe, the network of activists who help women evade these restrictions will become bigger and more sophisticated. Worldwide data show that the rate of abortion is not much different in countries that ban abortion than in those that permit it.  Women who want to end pregnancies usually find a way.

As I’ve said for a long time, the right to abortion is properly understood as protected by the 13th Amendment’s abolition of involuntary servitude. Since the court overruled Roe, there have been creepy new parallels with antebellum slavery. The phrase “underground railroad” is already a common label for the resistance. Some legislators are considering restrictions on free speech to prevent the subjected population from learning its options, and (unconstitutional) bans on interstate travel for abortion. 

The Fugitive Slave Act of 1850 made it a crime to help a slave escape; legislators are now proposing to criminalize firms that help their employees travel out of state for abortions. A few states already authorize private bounty hunters to help with the new, daunting enterprise of preventing huge numbers of women from escaping forced pregnancy and repressing an immense number of would-be rescuers. Pro-lifers, of course, reject this legal argument, but even they should be given pause by the similarities to America’s ugly past.

The enormous new police apparatus will reach even further. Abortion bans endanger women who want to have babies. Life-threatening complications sometimes develop in the second trimester. The amniotic sac can rupture, leading to infection. The placenta may begin bleeding. The woman may develop pre-eclampsia, which raises her blood pressure to dangerous levels. Sometimes the doctor decides, long before the patient becomes gravely ill, that the only way to save her life is to end the pregnancy.

Fear of criminal prosecution has led doctors to hesitate to end life-endangering pregnancies. In Poland, at least three women have died because their doctors waited too long. Texas obstetricians may delay intervening until the woman’s condition deteriorates to the point where her life is demonstrably in danger. Some hospitals already are afraid to terminate ectopic pregnancies, a life-threatening condition in which the embryo has no chance of being born alive. Some state laws prohibit abortions even when the fetus is so disabled that it cannot survive.

There have already been prosecutions of women for miscarriages, which are medically indistinguishable from chemically induced abortions. That has made some women reluctant to seek medical help. After a miscarriage, the uterus may not completely empty, requiring the same dilation and evacuation techniques that are used in abortion.  Obstetricians routinely learn to do this by performing abortions, but that training will now become unavailable in many places. One hospital in Texas now teaches residents with a watermelon in lieu of a uterus. 

All this helps explain why abortion bans are associated with higher death rates among pregnant women.

There is a better way. With adequate financial support, some women would willingly continue their pregnancies — perhaps more than the criminal law would prevent.

Over 70 percent of women seeking abortions cite financial pressure as a reason for their decision, and about a quarter say it is the primary reason. Most women who abort are already mothers. Many fear that they would not be able to provide adequate support to the children they already have. They are right to worry: Women who are denied abortion are more likely to go into debt, declare bankruptcy and be evicted from their homes, and those effects persist for at least six years after the birth. Many women at first respond positively when they discover they are pregnant, but reconsider when they assess their finances.

Pro-lifers ought to be demanding a restoration of the child tax credit, which pulled millions of children out of poverty. (Some of them are — but, as a general matter, not the ones in Congress.) Evidence from several countries indicates that better financial support for families reduces the abortion rate. In Spain, for example, an increased child allowance reduced the abortion rate by about 6 percent. That is concededly less than the 10 percent drop in Texas, but the difference isn’t huge, and might not be durable.  Women won’t fight a child allowance. There will be increasing (and mostly successful) efforts to escape state abortion restrictions. 

Today’s American political landscape offers a stark choice. You can have better financial support for people with children (which the Democrats would give you), or you can have laws criminalizing abortions (which Republicans are enacting now). You can’t have both. Even Sen. Mitt Romney’s (R-Utah) stingy child tax credit proposal has only two Republican cosponsors. Solidly Republican Texas parades its concern for life, but it has some of the nation’s worst prenatal and maternal health care, has the lowest percentage of women of childbearing age with health insurance and a primary care doctor, and offers no maternity leave. It has one of the highest rates of pregnancy-related mortality.

In short, if you want to minimize the number of abortions, you had best vote for Democrats. Pro-lifers focus on the fact that most Democrats won’t support abortion restrictions, while most Republicans will. But the question is which abortions you are in fact going to prevent. The Republicans would block abortions by terrified, isolated, low-income women, some of them very young, some of them incest victims, who desperately want to stop being pregnant, and who are so socially isolated that they do not know about the underground railroads that exist in their states.

The Democrats would prevent abortions by women who want another child but reluctantly end their pregnancies out of financial necessity. (Many pro-lifers are less concerned with the numbers than with intrinsic wrong of tolerating what they regard as baby-killing, but even they ought to look past symbolism and consider the actual effect of the law.)

America is moving toward an abortion regime that ought to disgust both the pro-choice and pro-life factions, a regime that brutalizes and sometimes kills pregnant women while ignoring the most promising opportunities to prevent abortions. Those factions will probably never agree about whether personhood begins at the moment of conception. But we ought to be allies on the question of what to do about it.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.