The historic Dobbs ruling invites us as a nation to consider a new approach to the care of unborn human beings, one that accepts their full humanity. It is now for states, through legislation or referenda, to determine how to accept that invitation, or whether to accept it at all.
The ruling has received criticisms of many sorts. One source of unease centers around the relationship between the decision in Dobbs and the need for adequate medical care for a mother who is experiencing a genuinely grave threat to her life. Suppose a state accepts the invitation of Dobbs, asserts the full humanity of the unborn child, and moves to accord that child the full scope of its protection. Does that move threaten to leave mothers at risk when they are suffering from, for example, uterine cancer, or an ectopic pregnancy? Might a doctor hesitate before addressing a miscarriage, and so put her maternal patient at risk?
Such questions demand at least three lines of reflection. One concerns the fundamental commitments of medicine; a second addresses the conditions for just defense of human life; a third concerns the legal uptake of these first two considerations.
Dobbs and Medicine
Roe exercised a greatly distortive effect on the profession of medicine. Suppose that a physician learns that her patient has a mass of cells growing in her uterus. It will continue to grow rapidly, unless it is stopped by chemical or surgical means. What difference should it make to the physician to learn whether that mass is a tumor, or an unborn human being?
For physicians practicing a patient-centered medicine aimed at health, both the tumor and the baby will be seen to pose medical challenges, for both can cause health deficits in a patient. As it grows, the tumor can threaten the functioning of nearby organs or the patient’s fertility; as the baby grows, pregnancy can lead to hypertension, anemia, or depression. A good doctor, concerned above all for the health of her patient, will address these deficits, seeking to maintain or restore as much health for her patient as possible.
But the good doctor’s orientations toward the cancer and toward the baby will be fundamentally different. The cancer, even apart from its effects, is a pathology just as such: it is a breakdown of the health of the patient. While the urgency of treating any given cancer can vary from case to case, no physician thinks of a tumor as intrinsically a matter of medical indifference; much less does a physician defer to the patient’s judgment on this question as a matter of medicine. Cancer is a failure of the well-working of an organism.
The case is different for the baby and the mother’s pregnancy: these are matters of good health, considered apart from any possible downstream consequences such as hypertension. The capacity for pregnancy is an indication of good, not bad health; and the newly conceived child is a subject of health in his or her own right.
Indeed, a physician committed to the health of his or her patient, and learning that the patient is pregnant, essentially learns that there is now a second patient. For the commitment to human health that is at the core of the medical profession is one that extends not just to those persons with whom a physician has contracted, but also to those persons whose grave health needs can and must be addressed by the physician here and now. When the airline flight attendant asks whether there is a doctor on the plane, physicians answer the call because they are there: their vocation requires it of them. And when an unborn baby comes into the picture, the same is true: that child is now also to be the recipient of the physician’s care.
Roe upended that commonsense approach to pregnancy and, with its precursor contraception cases Griswold and Eisenstadt, helped usher in a new era of medicine. No longer were physicians defined by a vocational commitment to human health that was not to be contravened. Rather, physicians came to be understood as possessors of technical skills that were to be put at the service of autonomous patient desires.
In this model, patient consent has been transformed into patient entitlement: what is autonomously requested becomes a right of the patient, even if, in the physician’s judgment, what is requested is radically contrary to the health of her patient. Abortion and assisted death are leading indicators: increasingly, physicians unwilling to provide these “services” are told that they do not belong in the medical profession, despite the obvious ways in which the termination of a pregnancy or the deliberate ending of an ill patient’s life seem manifestly contrary to the goal of human health.
The reversal of Roe is not itself a remedy to this situation. But its end offers the hope of a path back to a profession of medicine that is aimed at healing, with a commitment to do no harm to any human being, born or unborn.
Defending Maternal Health in Conflict Cases
But what happens when the demands of maternal and fetal health collide? Can physicians and lawmakers committed to the health of both make room for aggressive care of a mother whose life is threatened by a pregnancy-related condition? They can.
In the case described above, the uterine cancer is a threat to the mother’s life that can be treated surgically or chemically to remove or decrease the size of the cancer. But that treatment will often threaten to end the life of a developing child in the womb that will be removed in a hysterectomy, or treated with chemotherapy.
Physicians should not need to fear that treatment of the cancer in this case, even with the foreseen negative effects on the fetus, will be understood as any form of abortion. Almost twelve years ago I argued in Public Discourse that abortion should be understood as the intentional or unjust ending of an unborn child’s life. But treatment of a cancerous but pregnant womb is neither.
It is not an intentional ending of the child’s life because neither the means nor the end of the physician or mother bears on that life at all: the womb is removed, or chemotherapy administered, in order to address the cancer and save the mother’s life, not to kill the child.
And it is not unjust because both the mother’s and the child’s lives are at stake; surely it is not unfair to the child to save the mother. And even when either one could be saved, it is reasonable and not unfair to recognize the mother’s authority in deciding what shall be done; if she decides to put her own life at risk to save the child, her authority should be respected, but it should not be overridden if she chooses otherwise.
The case of ectopic pregnancy is similar. The various ways in which ectopic pregnancy can be permissibly addressed have in common that the death of the unborn child is no means to the saving of the mother’s life. Rather, removal of a diseased part of the fallopian tube, or of a child whose location is a threat to both lives, is a permissible means to an upright end. And again, there is no unfairness: the child in an ectopic pregnancy is sadly doomed whatever is done.
So again, physicians committed to the life and health of both patients need not—should not—think they are performing abortions to save the life of the mother. They are rather engaging in life-saving medical procedures that have as an unintended but justly accepted side effect harm to the fetus. The cases are similar to those in which physicians accept as a side effect a heightened risk of death in performing surgery, administering high doses of pain medication, or removing life-sustaining but burdensome medical technologies.
A completed miscarriage is even further from posing a genuine medical dilemma. But what if a miscarriage is underway, and medical intervention is needed to save the mother, but at the cost of hastening the child’s demise? Must the physician wait, while putting the health of the mother at risk?
No: once more, intervention to save the mother’s life or prevent a grave health deficit is morally permissible when the harm to the child is a fairly accepted side effect. Physicians should act prudently to preserve maternal health in such cases and are not, when acting rightly, engaged in a “preemptive” abortion.
Maternal Health and the Law
The law should acknowledge these moral truths: laws restricting abortion should prudently and justly acknowledge the need to preserve the mother’s life when threatened in a way that can be medically addressed. Indeed, Dobbs notes that “By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion ‘however and whenever performed, unless done to save or preserve the life of the mother.’” Permitting medical intervention in defense of the mother’s life is part of our nation’s legal history and tradition in a way that the right to abortion is not.
The Dobbs dissent notes, surely correctly, that such a judgment would still leave many difficult questions in need of answers: what level of risk to the mother’s life is sufficient to justify a possibly fetal-life-ending intervention? And what about grave threats to maternal health that are not or might not be potentially lethal? These are difficult questions and I do not claim to have addressed them here. But a necessary starting point must be the acknowledgment that in genuine conflict cases, physicians must honor their commitment to the mother’s health, and that the law’s just protection of unborn human life should not interfere with that responsibility.