The (Nearly) Complete Argument for Legal Abortion.

INTRODUCTION

The question of abortion’s legality and morality is a central battleground in the national and state political arena. For obvious reasons, it is also a major factor in the choices available to millions of individuals each year. The 1973 Roe v Wade ruling legalized abortion, but also left “wiggle room” in less than precise wording regarding states’ obligation to balance access to abortion against protection of fetal life and women’s health. In recent years, lawmakers – generally Republican – have brought literally thousands of bills to state and federal legislatures, all proposing to restrict the conditions under which a woman may obtain an abortion. Some states, including Arkansas, North Dakota and Kansas, have made abortion virtually impossible to obtain, regardless of the circumstances. Kansas, for instance, has only one doctor performing abortions (Courage in Kansas, 2013).

Whether or not abortion should be legal depends largely on a number of perspectives which frame the question. While the issue is usually framed as a matter of constitutional law, it’s important to note that the constitution has been changed before. The 21^st amendment, which repealed the 18^th amendment, is a powerful precedent which upholds the written intentions of many founding fathers, including Thomas Jefferson: The constitution was not meant to be a static document. Furthermore, the interpretation of the constitution has changed numerous times, often following the politically partisan biases of the majority party. Ultimately, the observation that it’s a matter of constitutional law is just a placeholder for saying it’s a matter of what we ultimately decide the constitution ought to say.

Perspective becomes even more important when we observe that the questions the courts will answer are far from clear. For example, it’s one thing to say that states have an obligation to protect fetal life. It’s quite another to ask why. Whence comes this obligation? Is it because fetuses are persons? Is it because they could become persons? Is it because all life is owed a modicum of protection? Each of these perspectives raises a new set of questions, and it’s rare that any two people agree on a foundation from which to begin debate.

Where we begin the debate is likely to determine where we end. For example, if we begin with the premise that all life is deserving of a baseline of respect, we will logically reach the conclusion that abortion ought to be legal in all or nearly all cases. We Americans dispose of life which theoretically deserves respect on a regular basis. We euthanize shelter animals who do not find homes. We put decrepit pets “to sleep.” We eat tens of millions of chicken eggs a year. It would be hard to argue that the generalized “right to respect” extends so far as to force women to have unwanted babies. On the other hand, if we begin with the premise that a fetus is a person, we will reach the opposite conclusion. Persons are afforded a great many rights in America, including the right to life inherent in the famous phrase, “Life, liberty, and the pursuit of happiness.”

This lack of clarity is one of the most consternating aspects of the abortion debate. In the formation of a political position, the ultimate question is how and why we arrive at our starting point, not our endpoint. In the following paragraphs, I will attempt to walk through my own position and that of those who are most diametrically opposed to mine.  It has often been said that to win a debate, one must know the opponent as well or better than one knows oneself.  I believe that this is particularly true in emotional debates.  For this reason, I will devote myself in the following paragraphs to building the absolute best case not only for my own beliefs, but those of my opponents.  By doing so, I believe I can demonstrate my own position to be superior.

OPPOSING POSITIONS:  FOUNDATION

My perspective endorses self-determination and autonomy for women, which is equivalent to unhindered access to healthy abortions. My perspective is perhaps more extreme than many pro-choice advocates, in that I do not hold to an arbitrary cutoff of abortion rights based on trimesters or viability. I do not believe that anyone, including the prospective father, has a right to force a woman to do anything she does not want to do with her body.

The foundation of my position rests on a null hypothesis. I believe laws should only be enacted when there are clear and empirically demonstrable reasons for doing so. In the case of abortion, I believe the case for prohibition has not been made, and thus the “null hypothesis” is that abortion should remain legal. (To avoid unnecessary historical regression, we can observe that for abortion to have ever been illegal, someone had to make it so. There is no such thing as an a priori civil or penal code.)

The next step in my position is to quantify what constitutes a compelling reason for criminalizing an action. For this, I turn to a basic social libertarian philosophy: Autonomy for people should be facilitated and encouraged until and unless it causes demonstrable harm to other people.  It’s important to note that there is within this principle an implicit right for individuals to harm themselves. While this isn’t a pleasant thing to think about, it’s self-evidently an integral part of our social codes. Millions of Americans drink alcohol, smoke cigarettes, and engage in a hundred other recreational activities that are demonstrably harmful to them.

There is one more crucial fixture in my position which comes from symbolic logic. When I adopt the null hypothesis, it is incumbent upon my opponent to prove their case, not me. This is a basic principle of evidence-based research, and so I will not justify it further in this exposition. However, it’s important to justify my claim that legality is, in fact, the null hypothesis. To do this, I will invoke another method from symbolic logic: reductio ad absurdum. This is the technique of assuming the position of an opponent and demonstrating that if it is extended to a logical conclusion, it is absurd, and therefore untrue. My position is that all things are legal until a compelling reason for illegality is demonstrated. The opposing position, therefore, is that all things are illegal until a compelling reason for their legality is demonstrated. Of course, I may not demonstrate such a thing, for that demonstration would be, by definition, illegal. If everything is illegal, then everything must remain illegal ad infinitum. This is absurd, and proves the position untrue.

It could be argued that some things are illegal until proven legal. This, too, is an assault on the null hypothesis that all things are legal. It is beyond the scope of this work to do a systematic search of philosophy journals, but it seems reasonable to conclude that if such a proposition had been proven, it would be relatively easy to find, due to the profound effect it would have on jurisprudence. Furthermore, to prove selective illegality, one would have to first pass the hurdle of proving something inherently wrong. In other words, even if someone were to prove that some action is inherently wrong, that does not necessitate illegality. Some things, like lying (outside of court testimony), are generally agreed upon as wrong, but are not illegal.

While this exercise in philosophy and logic may seem far afield, it is necessary precisely because of the ambiguity of the question at hand. So long as we frame the abortion question as a matter of nebulous opinion or “gut feelings” about its morality, we shall not arrive at a defensible position. The combination of a philosophically defensible null hypothesis and a lack of counter-argument, on the other hand, provides a framework in which a conclusion may withstand emotionalism as well as popular sentiment.

Having established a suitable null-hypothesis, I must also point out that the lack of scientific citation in this section is not a weakness. It is not for lack of scientific research into abortion. Rather, it is the lack of anything to prove. The null-hypothesis stands until scientific research dislodges it. With this in mind, in the following section, I will do my best to use the literature base to provide reasonable suspicion that the null-hypothesis is invalid.

 

PERSPECTIVE: ILLEGAL ABORTION

In adopting the position that abortion ought not be performed, on pain of legal penalty, I have chosen the label “illegal abortion” as a functionally neutral description. Politically charged terms such as “pro-life” carry social baggage that serves only to distract from the ultimate goal of making abortion illegal. Also, to remain as consistent as possible, I have chosen to adopt a position similar to the most extreme advocates of illegal abortion. The rationale for this is that I initially adopted an extreme “legality” position. An extreme “illegal” position seems an appropriate balance. Therefore, I will attempt to argue that abortion is inherently bad for society, and as such, ought to be restricted as much as possible. In doing so, I will attempt to avoid using non-scientific arguments, including religious preferences, since these are ultimately indefensible matters of personal opinion.

The foundation of my illegal abortion position is that abortion causes unacceptable harm to society. Regardless of whether a fetus is a person or not, it is a living human, and death is undeniably harmful to life. Furthermore, there are scientifically documented negative outcomes for women who have abortions. Some of these, including increased drug use and depression, are drains on an already strained healthcare system. Therefore, after establishing that abortion is harmful to both the fetus and the woman, and the harm affects society at large, I will have made a case for discarding the null-hypothesis.

Reardon and Cougle (2002) found that more women who aborted their first pregnancy exceeded clinical cutoff scores for depression than those who delivered. Reardon, Coleman, and Cougle (2004) discovered a correlation between abortion and both alcohol and marijuana use, compared to a delivery group. Russo and Cenious (2001) reported statistically significant relationships between abortion in the past year and suicide ideation, diagnosis of depression and/or anxiety disorders, and lower life satisfaction. Coleman (2006) reported that young women who had abortions were more likely than girls who delivered to experience sleep problems, to have visited a counselor, and to have used marijuana. Cougle, Reardon, and Coleman (2005) found a correlation between abortion and postpregnancy “generalized anxiety.” Most recently, Coleman, Coyle, Shuping, and Rue (2009) reiterated the strong findings from previous studies.

Results such as these cross national borders, adding strength to their validity. An Australian study found that depression was positively associated with a history of abortion as well as more than two births (Taft and Watson, 2008). In New Zealand, Fergusson, Horwood, and Ridder (2006) found that after controlling for a large number of confounds, the abortion group suffered significantly more mental health problems than both the delivery group and never pregnant group in a prospective analysis. An analysis out of Norway found that an abortion group had significantly higher rates of substance use and abuse than either the never-pregnant group or the delivery group (Pedersen, 2007).

It is clear from this sampling of a substantial body of evidence that abortion is correlated to significant negative consequences including mental health problems, drug use, and alcohol abuse, all of which are burdens on society. This is to say nothing of the self-evident impact of being dead, the universal fate of aborted fetuses. In addition to the impact on adult humans in society, the impact of millions of fetuses being dead seems almost incalculable. For this reason, the null-hypothesis that abortion ought to be legal appears dead in the water. Instead, it appears incumbent on those who wish to abort to demonstrate that their abortion will not contribute to the societal ills cataloged herein. Or, put another way, abortions should only be provided to women who can suitably demonstrate that their need is so extraordinary that it overrides the inherent damage to society they will cause.

 

ANALYSIS

At this point, a mea culpa is in order. As I analyze the arguments I have made for each side, I will frequently find myself exposing serious methodological errors in my “illegal abortion” argument. This is not because I attempted to create a strawman which would easily be knocked over. Rather, it is because after discarding arguments which could only be justified by religious sensibilities, I was left with only the scientific literature to defend my position, and to make a long story short, the science does not support the position.

As a broad generalization, the research I cited in the illegal abortion section is either methodologically unsound or it has been misrepresented. For instance, it is true that Russo and Cenious (2001) reported many negative correlations to abortion; it is also true that later in the study, they controlled for more likely causal factors, and the relationships to abortion disappeared.  By including this intentionally misrepresented example of science reporting, I hope to call attention to a tactic used by those on the “illegal abortion” side of the fence, and warn potential readers of the importance of full contextual accuracy in both the reading and reporting of scientific findings.

As for the rest of the studies I cited, they have been exposed as having serious, often fatal problems with methodology. Major, Appelbaum, Beckman, Dutton, Russo, and West (2009) conducted a critical analysis of available peer-reviewed literature on abortion, and reported:

Major methodological problems pervaded most of the research reviewed. The most rigorous studies indicated health problems among adult women who have a single, legal, first-trimester abortion of an unwanted pregnancy is no greater than the risk among women who deliver an unwanted pregnancy. Evidence did not support the claim that observed associations between abortion and mental health problems are caused by abortion per se as opposed to other preexisting and co-occurring risk factors.

Methodological errors included the following: inappropriate comparison/contrast groups; inadequate controls; sampling bias; inadequate measurements of reproductive history; problems of under-reporting; attrition; poor outcome measurement; statistical problems; and interpretation problems. This is no small list, and a thorough reading of the critique is damning on several levels. Most disturbing is the appearance of motivational bias. That is, it appears that most of the researchers have sought to prove that abortion is bad, rather than attempting to explore the phenomenon from a neutral perspective.

This accusation is bold, to be sure. Certainly, it would be methodologically unsound for me to make such an assertion without empirical evidence. It turns out, there is evidence a-plenty. The Guttenmacher Institute issued a press release in 2012 exposing damning evidence that one of the principle investigators in most of the “illegal abortion” argument’s literature is either scientifically incompetent or dishonest (Dreweky, 2012). Amidst the vigorous condemnations of the research was this passage:

This is not a scholarly difference of opinion; their facts were flatly wrong. This was an abuse of the scientific process to reach conclusions that are not supported by the data,” says Julia Steinberg, an assistant professor in UCSF’s Department of Psychiatry. “The shifting explanations and misleading statements that they offered over the past two years served to mask their serious methodological errors.”

This is about as strong as public censure can get in the scientific community, but it gets worse. Despite no less than 7 strongly worded, peer-reviewed refutations of her methodology and accusations of political bias, Coleman continued to refer to her studies in scholarly contexts, and made half-hearted apologies for “oversights” without addressing the core of the accusations against her.

It could be argued that one bad apple does not necessarily spoil the bunch. There have been many studies not involving Coleman which found negative outcomes associated with abortion. While this is true, these studies suffer from a problem which relates back to one of my earlier observations: The perspective we begin with is likely to dictate the results we discover. Major, et al., (2009) noted that there is a paradigm within the research community that abortion is inherently a traumatic event. This position is guilty of begging the question; that is, it presumes what it intends to prove. Good research should begin by asking a neutral question, such as, “What is the phenomenology of abortion?”

Major, Richards, Cooper, Cozzarelli, and Zubek (1998) discovered a relationship that approached abortion from a better perspective. While exploring what women thought about abortion, they discovered an almost tautological pattern. Women who do not view abortion as a traumatic event generally don’t experience it as a traumatic event. This observation is critical to understanding society’s influence in either creating, mediating, or moderating negative effects.

Abortion is not just a medical procedure. It is also a social construct. Major, et al., (2009) examined social stigma as a causal factor related to many of the outcomes studied in the methodologically unsound publications. They reported:

Societal stigma is particularly pernicious when it leads to “internalized stigma”—the acceptance by some members of a marginalized group of the negative societal beliefs and stereotypes about themselves. Women who come to internalize stigma associated with abortion (e.g., who see themselves as tainted, flawed, or morally deficient) are likely to be particularly vulnerable to later psychological distress.

This societal stigma is a significant threat to objectivity, especially when it infiltrates scientific inquiry. We may ask a very pointed question: Why are nearly all of the scientific studies unidirectional, and why is the direction always negative? In other words, why do they look only for negative consequences? Where are the bidirectional studies? Where is the two-tailed analysis? Why are we not looking for positive outcomes associated with abortion? The most obvious answer that presents itself is that we don’t want to find positive outcomes.

Another criticism follows from a different perspective problem. Simply put, the researchers forgot that correlation does not equal causation. Alternatively, they glossed over this well known fact in favor of political bias. To illustrate the point succinctly, it is absolutely true that age is highly predictive of Alzheimer’s Disease. However, it is also obvious that age does not cause it. Even strong correlations must be examined for actual causation. In the case of abortion, this mandate has not been met. Major, et al. (2009) noted, “correlations between abortion status and mental health problems observed after an abortion may be spurious because of their joint association with similar risk factors present prior to the pregnancy.” In other words, characteristics which precede abortion, such as sexual risk-taking, history of abuse or neglect, or poverty are more likely explanations of post-abortion mental health problems than the abortions themselves.

 BEYOND THE SCIENCE

At this point, it should be obvious that I do not feel the null-hypothesis has been adequately dispelled. Based on the most compelling research to date, there is no demonstrable causal relationship between abortion and anything significantly harmful to women who undergo the procedure. Even so, the discussion should not end here. In my original defense of legal abortion, I made the point that Americans have a right to harm themselves. I believe this would apply to women even if it were demonstrated that abortions cause depression or other mental health challenges. The argument that negative consequences necessitate illegality is a non-starter until we return to prohibition, ban cigarettes, and put an end to football, boxing, MMA fighting, and every other demonstrably harmful activity.

There is still the argument that fetuses have a right to life. Frankly, I dismiss this argument out of hand. Fetuses are not persons. “Person” is a legal term, not a scientific one, and the question of personhood cannot be addressed by research. Legally, the United States does not, and has never defined fetuses as persons. There is no reasonable constitutional justification for doing so. To date, every “personhood bill” advanced in state and federal legislatures has been defeated or struck down. There is no developed country in history that has regarded fetuses as persons. It’s absurd on its face and after careful legal consideration, which is beyond the scope of this examination.

Despite being one of the most contentious issues in American politics, abortion rights are relatively straightforward if approached from a genuinely scientific perspective beginning with a null-hypothesis. Beyond the science, it seems absurd to argue that a zygote, which has neither self-awareness nor second-order thought, can be regarded as equal to an adult with both. To take something away, something must exist.

Perhaps my most contentious position is that trimester restrictions and viability should not be lines of demarcation for legality. My reasoning for this is explicated by Major, et al. (2009), who report that nearly all abortions are first or second trimester, and the miniscule number of late term abortions are almost all for medical reasons. In other words, late term abortions are simply not a problem. There is no epidemic of pregnant women deciding to abort nearly-born fetuses. It is not necessary to legislate what is already being practiced, and women are already only getting late term abortions for serious medical reasons. I am certainly not going to argue that women should be forced to experience serious medical problems or even death to protect a fetus. Even moments before birth, a fetus is not self-aware. It still does not have sentient desires. We cannot speak of depriving it of things like liberty or happiness because it is incapable of either.

There is still the life argument. Fetuses are alive. It is sometimes argued that simply by being alive, a fetus deserves protection. However, if we accept this premise, then we ought to criminalize both masturbation and menstruation, both of which “kill” living things. Life does not, in any sense of the word, begin at conception. It continues. Sperm and eggs are both alive, and they continue to be alive through the entire process of fertilization. The constitutional provision of “right to life” was written from a scientifically illiterate perspective of the continuity of human life. The founders did not anticipate – could not have anticipated – that it would be used as an argument to take rights away from adults in favor of fetuses. More to the point, even if they could have anticipated it, their perspectives are not as valuable as those of scientifically informed 21st Century thinkers.

Having done my best to adopt an “illegality” position, I have become profoundly aware of the extreme difficulty in forming a coherent and complete argument. While I believe that many anti-abortion advocates mean well, it is difficult for me to believe that they are beginning from a neutral position. I believe their bias impairs their ability to do so. Reflecting on my own position, I must admit that I am also biased, and that I have been in favor of legality since before I did thorough research. However, in keeping with the best principles of scientific and philosophical neutrality, I have attempted to construct an argument from step one, with a systematic approach and an eye toward all possible perspectives. I am willing to be proven wrong on any point, but I believe I have constructed a sound argument which will demand considerable evidence to overcome.

References

Coleman, P. K. (2006). Resolution of unwanted pregnancy during adolescence through abortion versus childbirth: Individual and family predictors and psychological consequences. Journal of Youth and Adolescence, 35, 903–911.

Cougle, J. R., Reardon, D. C., & Coleman, P. K. (2005). Generalized anxiety following unintended pregnancies resolved through childbirth and abortion: A cohort study of the 1995 National Survey of Family Growth. Journal of Anxiety Disorders, 19, 137–142.

Courage in Kansas. [Editorial]. (2013, April 13). New York Times Online. Retrieved from: http://www.nytimes.com/2013/04/14/opinion/sunday/courage-on-abortion-in-wichita-kansas.html?_r=0

Dreweky. [Press Release]. (2012, March 12). Study Purporting to Show Link Between Abortion and Mental Health Outcomes Decisively Debunked. Retrieved from: http://www.guttmacher.org/media/nr/2012/03/05/index.html

Fergusson, D. M., Horwood, L. J., & Ridder, E. M. (2006). Abortion in young women and subsequent mental health. Journal of Child Psychology and Psychiatry, 47, 16–24.

Major, B., Appelbaum, M., Beckman, L., Dutton, M., Russo, N., & West, C. (2009). Abortion and mental health: Evaluating the evidence. American Psychologist, 64(9), 863-890.

Major, B., Richards, C., Cooper, M., Cozzarelli, C., & Zubek, J. (1998). Personal resilience, cognitive appraisals, and coping: An integrative model of adjustment to abortion. Journal of Personality and Social Psychology, 74, 735–752.

Pedersen, W. (2007). Childbirth, abortion and subsequent substance abuse in young women: A population-based longitudinal study. Addiction, 102, 1971–1978.

Reardon, D. C., & Cougle, J. R. (2002). Depression and unintended pregnancy in the National Longitudinal Survey of Youth: A cohort study. British Medical Journal, 324, 151–152.

Reardon, D. C., Coleman, P. K., & Cougle, J. R. (2004). Substance use associated with unintended pregnancy outcomes in the National Longitudinal Survey of Youth. American Journal of Drug and Alcohol Abuse, 30, 369–383.

Russo, N. F., & Denious, J. E. (2001). Violence in the lives of women having abortions: Implications for practice and public policy. Professional Psychology: Research and Practice, 32, 142–150.

Taft, A. J., & Watson, L. F. (2008). Depression and termination of pregnancy (induced abortion) in a national cohort of young Australian women: A confounding effect of women’s experience of violence. BMC Public Health, 8(75).