Opinion – Ross Douthat: Exceptions to abortion when the mother’s life is at risk?

In addition to giving Democrats new political hope, the Supreme Court decision that overturned Roe v. Wade clarified the rationale for the public discussion of abortion.

As right-to-procedure advocates pressed their sudden political impulse, three pro-choice arguments seemed especially important: the one about abortion in life-threatening circumstances; o about the physical costs of pregnancy; and the one on the virtues of the cultural situation of the Roe era.

Each deserves its review, so this will be the first in a series of columns. (Notably, none of these are really about the question of when life, personality, or human rights begin; they all tend to come up with reasons that even if the fetus had a moral claim on us, some other interest necessarily trumps it. I’ll try. approach them in these terms, rather than just reshaping the debate over whether unborn human beings are also human persons.)

In terms of what conflicted Americans might fear most from the abortion ban, the most powerful argument is the first, which focuses on pregnancies that have gone so wrong that the mother’s life can only be saved at the expense of the fetus.

These cases are treated as exceptions under all state bans. But these exceptions, advocates of abortion rights argue, are simply not broad or flexible enough to protect women from real danger. Instead, by limiting the practice strictly to medical emergencies, they create situations in which a woman with a doomed and dangerous pregnancy must wait for her own health to deteriorate before intervention becomes legally possible — waiting for doctors and hospitals fearful of action. lawsuits and processes, in a kind of torture.

The pro-life counterargument calls this legal disinformation. The mother’s life exception in the Texas abortion ban, for example, does not require that the risk of death or “substantial disability” be imminent or immediate; it only requires a physician to certify that there is such a risk.

So doctors and hospitals have the freedom to intervene sooner, not just wait for the threat to become too great to act. Insofar as there is a problem here, in the real-life cases of women who have been denied help, pro-lifers argue that it is primarily a problem of medical professionals who misinterpret the new laws, authorities who do not clarify their meaning — and media outlets. sometimes irresponsible communication channels that mislead about what the law actually allows.

The pro-life side is right that some famous cases seem to reflect a misunderstanding of what these laws allow. But just having a debate about the scope of an exception on the mother’s life inevitably redounds to the benefit of the pro-abortion side, because it focuses public attention on a gray area, a zone of ambiguity in which not even opponents of termination of pregnancy agree among themselves on what the pro-life principle requires.

This ambiguity takes two forms. There is the inherent uncertainty of situations that can be fatal or physically devastating, where the evidence is tentative and there is no simple medical answer. There is also ambiguity about whether a specific means of terminating a dangerous pregnancy satisfies anti-abortion commitments.

In Catholic moral theory, for example, what is permitted in medical emergencies are “indirect” abortions, which kill the embryo or fetus only as a side effect of a treatment intended to save the woman’s life. But there is considerable debate, even among conservative Catholics, over what “indirect” means and what kinds of abortions it allows.

In both types of gray area cases, two pro-life doctors may disagree about the seriousness of the woman’s situation or two moral theorists may disagree about the lawful means of terminating a pregnancy. Lawmakers trying to make exceptions, therefore, must choose between a system that errs entirely on the side of the unborn child and one that takes the familiar pro-choice line of leaving certain difficult decisions to “the woman and her doctor.”

And when abortion opponents argue that current pro-life laws allow doctors considerable latitude, they are effectively embracing the second option, which concedes something to the philosophy on the pro-abortion side.

The question is what this concession means for the broader debate. One argument would be that it has implications far beyond medical exceptions: that once gray areas are admitted in some cases and the decision is left to women and doctors in the most difficult situations, there is no reasonable way to draw a line and prohibit abortion anywhere.

But I don’t think that argument makes sense. Consider the assisted death and euthanasia debate. Some of the issues at stake at the end of life are obviously different from those involving abortion. But the ways in which they overlap are useful in thinking about whether it is possible to allow hard cases and gray areas within a general restriction, a standard ban.

Currently, the U.S. Supreme Court does not recognize a general right to die (just as it no longer recognizes the right to an abortion), which means that states can ban doctors from helping their patients commit suicide, no matter how difficult it is. patient’s health.

However, the court also recognized, at least tacitly, the right to refuse life-saving medical treatment – which, in certain circumstances, under some moral theories, could constitute an act of suicide.

It allowed the decision to discontinue treatment to be made by a third party in situations where the patient no longer has the competence to decide, albeit within the safeguards of state law — a decision that may amount to euthanasia under some theories and circumstances. And he recognized a distinction between actively assisting a suicide and pursuing aggressive pain management regimens.

All these subsidies compromise perfect pro-life coherence, recognizing exceptional and ambiguous cases even when assisted death is prohibited. As such, they are somewhat analogous to the tacit “pro-choice” commitment in the mother’s life exceptions to anti-abortion laws. It is therefore notable that, by American culture war standards, the court’s end-of-life approach has proved relatively viable.

Physician-assisted death is legal in ten states and Washington, but remains illegal in most parts of the country; this variation proved to be politically sustainable; and laws against assisted death do not generate constant and highly publicized lawsuits from doctors or hospitals dealing with extreme cases and gray areas.

In this context, would it make sense to argue that if we recognize the moral ambiguities inherent in end-of-life care, we should therefore accept a general right to suicide, with clinics available for healthy people of any age who are tempted to commit suicide? Certainly not.

Even advocates of assisted-death legislation often go to great lengths to insist that they are still only talking about extreme cases, especially dire situations. And even progressive Americans seem concerned about those countries, from Belgium to Canada, where the right to suicide has become more general and people are allegedly euthanized because they are depressed or request assisted death for lack of adequate financial support.

This Belgian-Canadian stream clearly shows that there is a cultural-legal tendency under liberalism for exceptional cases to be used to justify universal rights and for societies to descend a moral slope from gray area concessions to a culture of death.

But the American experience suggests that this tendency can be repelled and that it is possible to let ambiguous cases pass without trial without establishing a general right to suicide. And the fact that even most progressives seem to accept this balance with end-of-life issues implies that the same balance could exist with abortion — or at least that the existence of medical emergencies and the legal gray areas they create are not generalize anyway into an almost universal right to take an unborn life.

Unless it can be established that an unwanted pregnancy is, by its very nature, a kind of physical emergency — another argument that has been circulating since Roe’s fall, and that a future column in this series will address.