Questions about “abortion and the law” are usually seen as matters of constitutional law. Constitutional law, however, seems ill-suited. This is not only because the U.S. Supreme Court discovered a “constitutional right” for something that had been banned by most states for most of the nation’s history. It is also because the “privacy” right encompassing abortion frames the issue as a struggle between the state and the woman over her right to define her life, her future, or even her “concept …of the universe,” in the famous words of the Casey Court. But it is becoming increasingly apparent that abortion is about family relationships, not simply a contest between the state and a woman who happens to be pregnant. Scientific discoveries about human development and the testimonies of women who have had or have considered an abortion suggest that it is family law rather than constitutional law that provides the best means of understanding the issue of abortion.
Scientists do not really dispute the human genetic identity of the earliest embryo, or the continuity of identity from conception through birth and beyond. A book published recently to wide acclaim, Origins: How the Nine Months Before Birth Shape the Rest of Our Lives, by Annie Murphy Paul, shares scientific research indicating a relationship between external events like war and disease, and the wellbeing of those human persons who were unborn while their mothers experienced these events. Developments in the field of assisted reproductive technologies (“ARTs”) also highlight the continuity between unborn and born lives, as does the now-routine practice of ultrasound technology.
A person who spends even a little time in the company of post-aborted women and clients of crisis pregnancy centers will come away convinced that these women experienced their pregnancies as motherhood-dilemmas. Their internal debates about abortion did not revolve around the question: “Should I kill?” Rather, they wondered, “Should I, can I, be a mother now?”
Abortion is a family issue in other ways as well, as explained in the affidavits of 180 women filed with the U.S. Supreme Court in the second partial-birth abortion case, Gonzales v. Carhart. They described how abortion affected their mothering, how siblings of aborted children experienced repercussions of the abortion, and how they became pregnant again quickly after the abortion in order to have a “replacement baby.”
Justice Kennedy’s majority opinion in Gonzales v. Carhart indicated that the Court itself was beginning to understand abortion in a family context. The opinion states outright that a bond exists between a woman and her biological offspring and that the severance of this bond via abortion might cause significant suffering for the woman. The majority wrote that “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.” The Court's use of language like “mother” and “child” also indicates a family law context. So does the majority's choice of labels for the unborn including “a living organism while within the womb,” “unborn child,” “infant life,” and “child assuming the human form.” The Court continued: “some women come to regret their choice to abort the infant life they once created and sustained.”
There are quite a few signs, then, that the time is ripe for exploring abortion from within a family law context. Indeed, there is some evidence that family law is experiencing second thoughts about “what was lost” during the period when lawmakers fell into a pattern of prioritizing adults’ interests over children’s. This is a fair characterization of family law’s failures over the past 30-40 years: the failure to place meaningful limits on the use of ARTs in order to defer to adults’ wishes and to the flourishing of the fertility industry; the adoption of no-fault divorce laws which turned a blind eye to the wellbeing of minor children within a marriage. This “adults’-eye-view” (really a blindness) has permeated recent judicial decisions creating a right to same-sex marriage on the grounds that legal marriage is unrelated to any state interest in procreation and child-rearing.
A backlash against the adults-first approach is now brewing. Bills introduced at the state level have suggested a number of positive steps, including restricting assisted reproductive technologies to married couples, or limiting donor anonymity. Others have proposed slowing down divorce proceedings, especially for couples with minor children. Meanwhile, every state which has turned the question of same-sex marriage over to voters has passed a law or constitutional amendment banning them, largely after campaigns insisting on the links between marriage, procreation, and child welfare.
This reconsidering of extant laws is fueled by the empirical data produced largely from the 1990s through to today, indicating the need to pay more attention to children’s outcomes, perhaps even to return to family law’s longstanding norm that adults’ rights with respect to children are always derivative from and secondary to their duties.
At times, U.S. courts have also nodded to the idea that “as the family goes, so goes society, and the nation.” In the polygamy case Reynolds v. U.S., the Supreme Court rejected the claim of a constitutional right to polygamy, noting that there is a link between polygamy and the “patriarchal principle” which “fetters the people in stationary despotism.” In a series of cases overturning state-imposed discrimination against children born out of wedlock, the Court commented on the conflict between American values of generosity and care for the vulnerable, and punishing children for the “sins of their fathers.” Interestingly, even proponents of same-sex marriage know that it is wise today to couch their arguments in “child welfare” terms; focusing usually exclusively on that limited group of children reared by same-sex parents, they claim that these children would benefit greatly from state recognition of their parents’ partnership. They do not address the consequences for other children, or for society generally, were the state to agree that marriage and childbearing have nothing to do with one another.
The “adults-first” notion has long reigned in abortion law. Consider abortion’s component parts: Abortion is the destruction of a human life by the mother—the only person physically “given” to the child for nurture. Abortion is performed when the child is at perhaps the most defenseless moment of his or her existence. And while the killing of strangers—born or unborn—is prohibited in the United States, family members are permitted to be aborted. The wound to the good of the child, and even to the good of the whole family, is apparent. Abortion law makes the family not only not the safest place, but the only legally sanctioned danger zone. The law, in particular, casts mothering as a serious threat. It suggests that women – due to their childbearing potential – are cursed and not gifted. It makes invisible the humanity of children. Considered from the perspective of family and social welfare, this is not good for women, for children, or for the larger society. Were abortion law to benefit from the same “second thoughts” influencing other areas of family law, it would almost certainly move in a new direction.
Where might it begin? Both scientific research and policies of the kind driving other “children’s interests” movements in family law are in order. First and foremost, there should be a reexamination of all laws and policies disadvantaging pregnancy and motherhood, whether these touch upon employment, education, Social Security benefits, tax policies, or other areas. There should be a truly empirical—not ideological—look at whether state-sponsored programs about sex or marriage tend to separate marriage and procreation. After all, over 80% of all abortions are sought by single women.
The law should take women’s suffering after abortion seriously. Several European countries keep track of women’s abortions and have consequently reported a correlation between abortion and later psychological and physical distress. In the United States, though—despite efforts made to convince the National Institute of Child Health and Human Development to do so—no federal research on this matter is going forward, even though abortion is the most frequently performed surgery among all the surgeries women receive.
The states, which are already in many cases in the business of financing abortions, should also provide financial assistance to women experiencing crisis pregnancies who want to give birth to their baby. It would do this through the thousands of crisis pregnancy centers which perform this work with private charitable dollars. Finally, the welfare of children—unborn and born—associated with the abortion procedure and its aftermath, should be made a regular subject of state and privately supported scientific research. With such efforts, lawmakers and citizens can come to understand more fully than at present, the relationship between abortion and social welfare, particularly the welfare the most vulnerable persons. This knowledge can then provide the basis for pluralistic, democratic efforts to restrict the abortion license.
Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she serves as chair of the Task Force on Conscience Protection. This piece is adapted from her remarks delivered at the conference “Open Hearts, Open Minds, and Fair-Minded Words,” held on the campus of Princeton University on October 15th and 16th, 2010.