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Originally published at Faith Seeking Understanding. You can comment here or there.

Earlier this morning I posed about the Gosnell trial, basically saying that the pro-life and pro-choice wings both seemed to hate him, but for very different reasons. Criticizing extreme cases like Gosnell is all well and good, but I’d like to be a little more constructive. What would policies about sexuality and birth control look like in Martaland, where I get to write the laws?

First, on contraception:

The first line of defense is comprehensive sex education, focusing on the facts of fertility, sexually-transmitted disease, and how effective things like condoms and other birth control is at fighting these things. I would also encourage parents and larger civic groups (churches, fraternal and neighborhood organizations, etc.) to teach their values when it comes to sex. But this should be separate from teaching the medical facts that bear on this aspect of life. People, and in particular females, are responsible for the consequences of their action, but this means they be <i>aware</i> of those consequences in thorough enough detail to be held responsible for their actions.

On a related note, we need to work on contraceptive availability. From a societal level, contraceptive is a bargain compared to the cost of an unplanned pregnancy, and certainly avoids the moral issues many people see in abortion. No one should be forced to use contraception, but we should make sure it’s easily available for those who aren’t ready to become parents but still want to have sex. We should distribute free condoms in public locations like many college campuses do. We should also  try to eliminate loopholes for female contraception. We really shouldn’t require parental notification before teens can get birth control pills, and unless there’s a pressing medical reason why a doctor needs to monitor women using contraception (meaning, unless it’s more dangerous than OTC medication like diet pills) we should seriously consider making birth control available over the counter.

If contraception needs to stay a prescription drug, pharmacists would be legally compelled to fulfill the prescription as a condition of keeping their jobs. Drugstores would be encouraged to balance work schedules if they can to accommodate people with moral objections, but if they can’t or choose not to, the pharmacist must choose whether to dispense contraception or find another job. (This is another reason why I prefer making contraception OTC, if it’s medically safe to do so.)

We should also encourage people to see contraception as a part of responsible sexuality, not as an intention to have sex. I’m not sure how to go about this, administratively. Sex ed should be about teaching mechanics rather than values as I said, and I tend to think values should be left to voluntary associations and families rather than governments. Maybe as part of the sex ed classes kids could be encouraged to think about what conditions they’d like to have sex under, without telling the kids what those situations should be. Something like that. But we need to get past this idea that sex can “just happen” and that spontaneous, unprotected sex isn’t breaking whatever moral restrictions people place on sex in the same way premeditated sex is. I’d also like to get beyond the hard distinction people draw between Real Sex (TM) and not-sex like oral sex, sexual contact short of penetration, etc.

Basically: contraception should be readily available and encouraged if people are going to have sex. We should eliminate hoops people have to jump through where they’re not medically necessary. These restrictions don’t keep people from having sex; they just make sure it’s reckless. People who believe sex outside of marriage is immoral (a group I include myself in, at least to a degree) shouldn’t use public policy to force people not to have sex; they should try to convince those people they have influence over that their approach is good, for whatever reason.

Now, for abortion.

When contraception fails, the next thing a woman should try is the morning-after pill. If people know how to use contraception, if it’s available to them, and if you have a culture that encourages them to think before becoming sexually active, you’ll have a lot less unprotected sex. And that means a lot less need for the morning-after pill or abortions on down the line. But sometimes contraception doesn’t work. Sometimes you mess up and don’t use it (you were drunk, or out of condoms, or were manipulated, etc.) Sometimes the sex isn’t consensual.  In all these cases, assuming the woman doesn’t want to get pregnant and she doesn’t have a moral objection, she should obtain and take the morning-after pill.

This pill isn’t as effective as traditional contraception but it’s also not abortion. Scientific studies show that the pill delays ovulation and makes it harder for sperm to get to the egg – its goal is to prevent fertilization, not keep the zygote from implanting in the uterus once fertilization occurs. In Martaland, government organizations like the NIH would stop describing the morning-after pill in this outdated way, and I’d consider stronger claims, like allowing companies to sue for libel if someone falsely describes their product this way. (Personally I think this is a good policy across the board – it should be illegal or at least grounds for a lawsuit if someone says something they know is false in an attempt to damage your interests.) Of course people would be free to argue the morning-after pill is immoral on other grounds – I do respect free speech.

Between traditional contraception and the morning-after pill, you should have a much smaller number of unwanted pregnancies. But that number won’t be zero of course. If a woman simply doesn’t want to be pregnant, she should have an abortion as soon as possible. Laws require a cut-off point, and I’d want to know more scientific data before I decide on one. (Per Discovery News at least some scientific studies say fetuses can feel pain around twenty weeks, though some date it much later; SciAm says the thalamo-cortical complex, the part of the brain that gives rise to consciousness, begins to develop around week twenty-four. I suspect somewhere in that neighborhood would be a good cut-off point.) Hopefully, if a woman thinks through whether she wants to be pregnant before having sex, she’ll be able to act quickly if she actually is pregnant.

A woman not knowing whether she wants a baby, whether her boyfriend will help her raise him, etc. is one reason women have later-term abortions. Another factor is access and affordability. Because of this, in Martaland I would encourage abortion doctors to work in every community and have a high enough capacity to meet local need, so women don’t have to wait weeks for an appointment. I would try to fight red tape that keeps women from obtaining an abortion in a timely matter. This is because, the further along a pregnancy progresses, the more morally wrong it is to end the pregnancy. (This is both because the fetus is more developed and more likely to survive the pregnancy, and also because the mother has spent more time nurturing the baby, so there’s more of a connection and more of an expectation she’d go on nurturing it.) I don’t think a woman has an obligation to give over use of her body just because she’s pregnant, but that expectation can build up. It depends on the details of conception (did the contraception fail or did she choose to have unprotected sex, was her choice out of ignorance or did she have all the facts she needed to make an informed choice, etc.) and also how long she’s been pregnant.

People against legal abortions often argue that human life begins at conception and that a zygote is a new thing that will develop naturally into a grown human. Philosophically, I think this is a fascinating claim and want to really dig into it one of these days. I’m honestly not sure whether I disagree with it or not, though my instinct is there is a difference and that people who make this claim sometimes conflate actual and potential goodness. But that’s a philosophical interest. Policy-wise, I think it’s quite a jump to say a fetus is a living human, therefore person A has an obligation to care for him. (We wouldn’t say that, for instance, about a stranger you found living in your house.) So when deciding whether an abortion is morally permissible, I’d ask these three questions:

1. What traits does the fetus currently have? Is it developed enough that it has consciousness, can feel pain, etc.? Will killing it harm it as it currently is?

2. What traits does the fetus potentially have? Is it reasonable to assume it will develop consciousness and the ability to perceive pain, even if it can’t right now? What will it need to make this happen?

3. Does the mother have an obligation to provide what it needs to develop its potentiality? Did the mother choose to have sex? Was this an informed choice (i.e. did she know how contraception worked but chose not to use it)? Has the pregnancy continued to a point that she’s forged a relationship that makes it wrong for her to deny this care?

I think with early fetuses, (1) is usually not true. (2) is usually true, but only if a mother chooses to care for it – and in many cases, I’m not sure the woman has an obligation to do that. But as the pregnancy goes on, the fetus has more actual traits and the mother has more of an obligation to go on caring for it. This is why I think it’s easier to justify an earlier abortion than a later one. And in any case the woman only has the right to keep the fetus from using her body. She has no right to kill it if it can survive on her own.

So, policy. I’m uncomfortable making policy be about forcing the proud citizens of Martaland to be good people. I do think we should support them if they choose to do what’s moral. That means I would support anything that cuts down on the number of unwanted pregnancies and that makes it easier for women who want or need abortions to get them early on. That means less red-tape all around and, on abortions, I’d like to find a way that enables women to have abortions and pay later if necessary.

I’d also like to find a way to support women (particularly poor women) financially through the pregnancy if they’re inclined to carry it out. One idea would be to reform our laws about adoption, perhaps letting the adoptive parent pay the medical and living expenses during pregnancy, and if the mother wanted to keep the child she would be obligated to pay back the amount of money she received over time. There are infertile people interested in adoption today, but we do need to find a way to balance the birth-mother’s interests against the adoptive parents; the current law seems to fail there. This is another issue where I’m not quite sure where that balance would be, but it would definitely be part of my strategy to find a sane solution to unwanted pregnancies.

The flip side of this is, if a woman chooses to continue a pregnancy beyond a certain point (1) and (3) become significant enough that in Martaland she wouldn’t have the right to abortion anymore. The one exception would be if the abortion is medically necessary for herself or if the fetus isn’t medically viable. If a doctor certifies that a woman can’t continue the pregnancy (or deliver) safely, that is enough to warrant an abortion at any point in the pregnancy. I’d also include mental health concerns here, which I know can be quite significant: if a woman is facing psychological stress to the point it threatens her longtime wellbeing, this too is enough to justify an abortion. She shouldn’t have to see a special doctor or go before a panel or anything, but we should have some kind of certification the abortion is medically or psychologically necessary.

If we’re talking about an elective abortion, the woman would have up until the point of viability to have an abortion, though she’d be encouraged to have an abortion as early as she was sure she wanted one. After that point, she would have to give birth and could either keep the child or give the child up to the state or a private adoption corporation, who would either arrange an adoption or put the child into foster care. If the mother didn’t want the baby the state or corporation would pay her medical expenses and would be reimbursed by the adoptive parents as part of the adoption fees.

So, my basic strategy would be:

A. Minimize unwanted pregnancies through traditional contraception, and Emphasize the point that the morning-after pill is contraceptive, not abortifacient. Make both more available than they currently are.

B. Develop a culture that treats contraception like part of sexual responsibility, and that encourages people to think through their answers to sexual questions (do I want to be pregnant, what would I do if I became pregnant, etc.) before having sex.

C. Make early-term abortions much more available than they are. Provide financial support for women who are pregnant and want to carry the fetus to term, but not raise it. Reform adoption laws to make this a real possibility, perhaps having the adoptive parents pay living//medical expenses of the pregnancy.

D. Establish a point after which elective abortions are illegal. This should probably be around the age of viability and the development of the thalamo-cortical complex.

E. Allow medically necessary abortions at any point.

The point here is to give women the tools they need not to get pregnant unless they want to, and then if they do get pregnant to end the pregnancy earlier, while I believe there are fewer moral concerns. I think these strategies emphasize personal responsibility and liberty, two things conservatives generally believe in, while also recognizing that sane policy should look at more than just whether the fetus is human or not – that’s part of the issue, but simply not the whole picture. I have tried to balance the question of fetal rights against the way a pregnancy imposes on a mother.

You’ll also notice that this isn’t about punishing people for bad sexual choices; that simply doesn’t seem productive to me. Also, it’s a bit presumptive to think that’s any of a government’s business.

Of course, if you believe life begins at conception, you may disagree with a lot of my positions. I get that this whole picture turns on my claim that early-term pregnancy isn’t as bad as late-term pregnancy. Still, I think the things I mentioned about balancing mothers’ and fetus’ rights are worth considering, and hope those concerns help you develop your own view on how to address this problem.

 

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