Late Term Abortions

(By Andrew MacKie-Mason)

Professor Robert George raises an interesting question at Mirror of Justice. How should the pro-choice lobby feel about late-term abortions morally and legally?

First, let me be very clear about something: those are two different questions. People can be morally opposed to abortion without thinking that it should be legally prohibited.

The issue of late-term abortions does present some interesting questions. I'll approach this from the point of view of unwanted pregnancy as involuntary servitude, laid out here and here.

From this point of view, I think that legislative regulation of late-term abortions based upon bright-line rules is acceptable, so long as a long enough period is available for women to make an informed choice about abortion early enough in the pregnancy that abortion is still an option.

Let me explain. If a law creates a bright line (say, four months) before which abortion is legal and after which abortion is illegal, women can be informed about their options and make their decision before that deadline arrives. By knowing about the deadline and choosing not to have an abortion before it arrives, women can be considered to have waived their right to an abortion.

For the waiver to be legitimate, some conditions must apply:

• The time period provided for the choice (from the time the pregnancy is known to the time that the woman can no longer have an abortion) must be sufficient to allow for careful consideration and decision-making. Of course, women learn about their pregnancies at different times, so the law must give a long enough window to ensure that all women have the time to make the choice.
• The pregnant woman must know about the possibility of abortion. While it seems less and less likely that people wouldn't know about abortion in modern society, it is still possible, especially when considering young women in areas where abstinence-only education is taught. If women don't know that ending their pregnancy is an option, they cannot be said to have waived the right to end the pregnancy.
• Abortion must actually have been available. The unavailability of abortion before the deadline, whether it be due to lack of funds, lack of available practitioners, parents preventing a child from getting an abortion, etc, defeats a waiver argument.
• Unpredictable changes in circumstance must not occur. If, for instance, a doctor learns after the deadline that continuing to be pregnant could threaten the woman's life, waiver arguments would not hold.

Where those conditions hold, reasonable restrictions of abortion would not infringe upon a woman's rights.

Professor George brings up another question. How strict should those restrictions be? Should we require extensive legal inquiry into whether those conditions have been met before we allow the abortion? I'm inclined to say no, since the legal process is too slow to deal with medical practice in real time. Instead, women seeking late term abortions should merely be required to assert enough facts to justify the abortion (they didn't know soon enough to choose, they didn't know that abortion was available, abortion wasn't available, their life is now in danger, etc.) If those assertions are later investigated and found to be unreasonable, the woman could be subject to prosecution.

So, responsible regulation of late term abortion should be acceptable, so long as it does not inhibit the legitimate exercise of women's right to be free of involuntary servitude.