Can life-of-the-mother abortion exceptions work?

In addition to granting new political hope to Democrats, the Supreme Court decision overturning Roe v. Wade has clarified the ground of public argument about abortion. As abortion rights supporters have pressed their sudden political momentum, three pro-choice arguments have loomed particularly large: an argument about abortion in life-threatening circumstances; an argument about the unique physical costs of pregnancy in general; and an argument for the virtues of the Roe-era cultural status quo.

Each merits its own analysis, so this will be the first of a series of columns taking each in turn. (Notably, none are really arguments about the question of when life, personhood or human rights begin; they all tend to present reasons that, even if the unborn child did have a moral claim on us, some other interest necessarily overrides it. So I'll try to address them on those terms rather than just rehashing the debate about whether unborn human beings are also human persons.)

In terms of what conflicted Americans might fear most from an abortion ban, the most immediately potent argument is the first one, which focuses on pregnancies gone so terribly wrong that the mother's life can only be saved at the expense of the unborn child.

These cases are treated as exceptions in every existing state abortion ban. But such exceptions, abortion rights advocates have been arguing, simply aren't broad or flexible enough to protect women from real peril. Instead, by limiting abortion strictly to medical emergency, they create situations where a woman with a doomed and dangerous pregnancy must wait and wait for her own health to worsen before intervention becomes legally possible — waiting on doctors and hospitals fearful of lawsuits and prosecution, waiting in a kind of torture for the situation to grow dire enough to act.

The pro-life counterargument calls this legal misinformation. The life-of-the-mother exception in, for instance, Texas' abortion ban doesn't require that the risk of death or "substantial impairment" be imminent or immediate; it just requires a doctor to certify that such a risk exists. So doctors and hospitals have the latitude to intervene earlier, not just wait for the threat to metastasize before they act. To the extent there is a problem here, in the real cases of women denied help, pro-lifers argue that it's mostly a problem of medical professionals misreading the new laws, officials failing to clarify their meaning — and sometimes-irresponsible liberal media outlets misleading on what the law actually allows.

The pro-life side is right that some high-profile cases of women stuck in medical limbo do seem to reflect a misunderstanding of what these laws allow — even if the pro-choice side can respond that doctors may be reasonably uncertain how pro-life prosecutors will interpret them. But just having a debate over the scope of a life-of-the-mother exception inevitably redounds to the pro-choice side's benefit, because it focuses public attention on a fraught gray area, a zone of ambiguity in which even opponents of abortion won't all agree with one another about what pro-life principle requires.

That ambiguity takes two forms. There's the inherent uncertainty of situations that might be life-threatening or physically devastating, where the evidence is provisional and there's no simple medical answer. There's also the ambiguity about whether a particular means of ending a dangerous pregnancy satisfies anti-abortion commitments. In Catholic moral theory, for instance, what's permitted in medical emergencies are "indirect" abortions, which kill the embryo or fetus only as secondary effect of a treatment meant to save the woman's life. But there is considerable debate even among conservative Catholics about what "indirect" means and what kinds of abortions it allows.

The question is what, if anything, that concession means for the wider abortion debate. One argument would be that it has implications well beyond medical exceptions: that once you've conceded gray areas in some cases, once you've deferred to women and doctors in the hardest situations, you don't have a reasonable way to draw a line and forbid abortion anywhere.

But I don't think this argument makes sense. Consider another debate where the stakes are life-or-death and there are pro-life and pro-choice sides: assisted suicide and euthanasia. Some of the issues at play at the end of life are obviously different from the issues surrounding abortion. But the ways in which they overlap are useful for thinking about whether it's possible to allow for difficult cases and gray areas within a general restriction, a default ban.

At present, the Supreme Court does not recognize a general right to die (just as it no longer recognizes a right to abortion), which means that states may forbid doctors to help their patients commit suicide no matter how dire the patient's health.

However, the court has also recognized, at least tacitly, a right to refuse lifesaving medical treatment — a refusal that in some circumstances, under some moral theories, could constitute an act of suicide. It has allowed the decision to discontinue treatment to be made by others in situations where the patient is no longer competent to decide, albeit within safeguards set by state law — a decision that could amount to euthanasia under some theories and circumstances. And it has acknowledged a distinction between actively assisting a suicide and pursuing aggressive pain-management regimes even when (to quote the court's majority in Vacco v. Quill) the drugs "may have the foreseen but unintended 'double effect' of hastening the patient's death" — with the latter being another zone of ambiguity in which the state might reasonably decline to tread.

All of these allowances compromise perfect pro-life consistency, acknowledging exceptional and ambiguous cases even where assisted suicide is banned. As such, they are somewhat analogous to the tacitly "pro-choice" compromise in life-of-the-mother exceptions to anti-abortion laws. So it's notable that by the standards of the American culture war, the court's end-of-life approach has proved relatively workable. Physician-assisted suicide is legal in 10 states and Washington, D.C., but remains illegal in most of the country; that variation has proved politically sustainable; and the laws against assisted suicide don't generate constant headline-grabbing prosecutions of doctors or hospitals dealing with edge cases and gray areas.

That Belgian-Canadian drift does clearly show that there's a legal-cultural tendency under liberalism for exceptional cases to be used to justify universal rights, and for societies to slide down a moral slope from gray-area allowances to a culture of death.

But the American experience suggests that this tendency can be resisted, and that you can let ambiguous cases pass unprosecuted without establishing a general right to suicide. And the fact that even most liberals seem to accept that 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, doesn't generalize in any way to a near-universal right to take an unborn life.

Unless, that is, you could establish that an unwanted pregnancy is by its very nature a kind of physical emergency — another argument that's circulated since the fall of Roe, and one that a future column in this series will take up.