ABORTION Bad Choices Larry Leticia ixteen years after the right to a safe, legal abortion was granted to every woman in America by the Supreme Court, that right is in a battle for its life. By mid-July, when the Supreme Court will have rendered its decision in W/ebster v. Reproductive Healtly Services, there?s a good chance that the constitutional right to a safe and legal abortion will be lost, to be fought for all over again in the legislative houses of every state in the nation. Hopefully that won?t happen. It?s possible that the Supreme Court will act to maintain the status quo on the legal basis of stare decisis, that is, on the basis that to overturn Roe v. Wale would be to ignore precedent. It?s unclear whether an enormous outpouring of support for the right to abortion will affect the Supreme Court?s decision, but for now it?s the best chance supporters of abortion rights have. Win or lose, the pro-choice movement must ask itself how it got to this awful and painful moment of truth, with no assurance of winning. How did legal abortion, something that over ?fteen million American women have undergone, remain controversial enough to ap- proach repeal? Has there been a backlash against feminism? Perhaps, but backlash can?t provide a full explanation for this turnaround. It?s clear that the idea that women can and should be equal to men has permeated our culture. Typical middle-class fathers, even among conservatives, go to their daughters? Little League games and dream of their future careers. Pat Schroeder could think seriously about running for president. Our'society has barely begun to institutionalize this new attitude, and we?ve yet to make any progress in valuing more traditionally feminine contributions to our society; but the momentum is toward more equality of the sexes, not less. What about the usual suspects?Reagan, the Repub- licans, and the religious right, with their excellent politi- cal organizations? These people, so goes the theory, form a very loud and vocal minority that somehow drowns out the will of the majority. Some truth here, too. But it?s also a sad refrain that Larry Leticb is a freelance writer and public relations consultant interested in communication strategies for progressive issues. 22 TIKKUN VOL. 4, N0. 4 progressive and liberal movements have used too often to avoid accepting responsibility for failing to capture the American political imagination. The disturbing fact that the pro-choice movement must face is that it has failed to communicate effectively to middle Americans why women must keep the right to abortion. According to a study done by the National Opinion Research Center, which has been polling Americans about abortion for over twenty years, there is a core of people?about 10 percent?~who are deeply convinced that abortion is wrong in almost all circumstances. There is a larger group of Americans?30 percent?who are equally convinced that abortion is a right that must be protected. But the vast majority of Americans, including the majority of baby boomers, are ambivalent about the right to a legal abortion. This moral am- bivalence has been strengthened by the anti-abortion movement?s daily hammering and its ever more creative publicity tactics. What has the pro-choice movement done in return? It has ignored this ambivalence. It has blinded itself to the need to develop a dialogue with the American people, to understand the roots of this ambivalence and respond to it. The pro-choice movement has focused (at least until recently) only on the super?cial aspects of the polls?such as the fact that 69 to 73 percent of the population supports the right to an abortion. It has acted as if abortion rights were being hijacked from a complacent but totally supportive majority by a small band of right-wing religious fanatics. Over and over again, however, the public has shown its ambivalence about abortion. Thirty-six states have passed laws pro- hibiting public funds for abortions, and in some states, Colorado for instance, the restrictions were passed in statewide referenda. Much of the American public believes that liberalism is amoral and that it has contributed to the ethical decay of our society. This attitude, of course, doesn?t re?ect the way most liberal and progressive people live or believe. But for a variety of reasons, some good (the value progressives place on tolerance) and some bad (a reaction against the hypocritical morality of the right wing, a holdover from the do my thing, you do your thing? attitudes of the late sixties), progressives have failed to articulate a clear moral, values-based vision of what they want for America. Without such a vision, Americans can be forgiven for feeling that progressives stand for no morality at all. Moreover, the abortion issue is right at the core of the public debate between individual rights and old- fashioned moral obligations. It is especially threatening because it calls into question the nature of women?s role, women?s morality, and women} power in a society that has historically seen women as the ?civilizers? of a world run by men. hat can the pro-choice movement do to reach the ambivalent majority? How can the pro- choice movement get off the defensive and begin in?uencing and molding American opinion? First, it must understand to whom it speaks. The largest and most important segment of the population is the baby boomers. The fact is, the entire baby-boom generation has grown up. The youngest baby boomers are twenty-?ve, the oldest forty-three, and the vast majority have gotten. past the point where an accidental pregnancy is a serious worry for them. On the contrary, they?ve been having kids?cute, precious, doted-on little Jennifers and Jasons and Jessicas. Or else they?ve been spending months with thermometers by their beds and dreams of the baby they?re ?nally ready for. An estimated 1.5 million Americans want a child but can?t have one. One can?t open a magazine these days without reading about in- fertility, arti?cial insemination, in vitro fertilization?and adoption. Somewhere unspoken is the resentment against women who have had an abortion when either oneself or someone one is close to can?t conceive and may end up spending thousands of dollars to adopt a child. Second, the pro-choice movement must confront the ambivalence head on. The anti-abortion messages? ?abortion 'is murder,? ?a fetus is an unborn baby? ~?are simple, emotionally powerful, and effective. Moreover, the anti-abortion activists are aided by the medical advances of the past twenty years, which have brought home more vividly than ever the miracle of prenatal development. Nothing the pro-choice movement is saying or doing is powerful enough to counter these statements. It is focusing almost exclusively on ?freedom of choice? and ?privacy? arguments?and they?re very important and effective arguments, certainly the most important ones from a legal perspective. But alone they?re not enough. It?s true that the pro-choice movement tested these mes- sages and found that ?rights? and ?freedom of choice? have positive connotations. But these terms also remind people of all those sixties-liberal-ACLU rights that middle America loves to hate. To many people, compared with even the possibility that abortion is ?murder,? a woman?s ?rights? seem very unimportant. The problem with an exclusive focus on the ?right? to abortion is part of a bigger problem facing liberals and progressives. ?Reproductive freedom? and ?the right to choice? are rejected by many Americans because these slogans seem to emphasize the primacy of the individual and neglect other moral considerations. Sadly, these phrases conjure up a vision of self-indulgence and sel?shness, which leads many Americans to think that those who favor choice are insensitive to other moral concerns. ?Reproductive freedom? and ?the right to choice? seem to emphasize the primacy of the individual and neglect other moral considerations. Sadly, these phrases conjure up a vision of self- indulgence and sel?shness. Americans do not accept the philosophy that each person is an atomized owner of personal rights, a person unconnected to other human beings. Even as they have lived according to this philosophy, they have suffered and are so desperate for messages validating human community that they?ll buy anything?cereal, soda, presidents?based upon commercials that deliver these messages. These ?community commercials,? with their picturesque farmhouses, smiling old people, and families gathered around a table, are one of the hottest trends in TV advertising. People are yearning for community. Liberals and feminists seem to be promising people exactly what most Americans don?t want any more?a lonely and empty freedom. For that reason, it is extremely important that the pro-choice movement begin to reframe its arguments in terms that underscore the fundamental moral vision from which its politics emerge. One way for the pro- choice movement to make its moral commitments more explicit is to focus on the experience of women with unwanted pregnancies. The most vulnerable aspect of the anti-abortionist message is the way it ignores women, treating them as if they were mere vessels for the fetus. The right-to-lifers? underlying assumption (one that fits right in with middle-class experience) is that pregnancy and childbirth are always positive (or at least not destruc- tive) experiences. It is on this false assumption that the anti-abortion movement is most morally vulnerable. The pro-choice movement should focus on the ex- ABORTION 23 perience of a woman who is pregnant against her will. It should argue that forcing women to stay pregnant against their will is abusive. In this way, the difference between a wanted and unwanted pregnancy is similar to the difference between wanted and unwanted sex. In both cases, an experience that in one situation is beautiful and wonderful in another situation is horri?c. As dif?cult as it may be morally for some people to accept abortion, there is a greater wrong?a greater immorality?in forc- ing a woman to undergo experiences as demanding, intimate, and at times life-threatening as pregnancy and childbirth. t?s ?ne in the rare?ed atmosphere of East Coast intellectual circles to talk simply of a woman?s ?freedom of choice.? But the right-to-life movement (and the right wing in general) has shifted the moral base. The message coming from the heartland is that there has to be a moral calculus involved in the decision about abortion. The argument that unwanted children will live miserable lives, or that nobody will take care of these children properly, or that they?ll end up on the welfare rolls, is too easily manipulated into a charge that eugenics is the hidden agenda of the pro-choice movement. But the claim that forced pregnancy will cause extreme pain and suffering, so much so that some women will risk and lose their lives by having back-alley abortions rather than carry the pregnancy to term, has the moral justi?cation for abortion that Americans demand. What?s more, it gets the anti- abortionists off their moral high horse and reveals the true lack of compassion in their stance. This message must be articulated forcefully. Adver- tisements with words like ?forced pregnancy,? ?suffering,? and ?violation? not only pack an emotional wallop, but also capture the moral issues that the anti-abortionists ignore. Furthermore, every .woman has either had forced sex or else lives with the nightmare that someday it might happen. To link ?unwanted pregnancy? to ?unwanted sex? is to connect it to a universally hated and morally repulsive experience. The pro-choice movement needs to focus more on the pregnant woman in general. Until the recent out- pouring of articles on abortion, we hadn?t heard much about the women who get abortions. We mustn?t forget that the people who would be forced to carry their pregnancies to term, who would be forced to endure immeasurable suffering, are precisely that?people, not mere statistics. More speci?cally, they are women, and only women can humanize the abortion issue. Women, and women?s lives, must be heard?in magazines, on television, throughout the media. People must be made to confront the humanity of the pregnant woman. People also need to be reminded that criminalizing 24 TIKKUN VOL. 4, No. 4 abortion will kill women. Unfortunately, such poor statistics were kept about fatalities from illegal abortions (partially because these abortions were illegal) that there are no reliable ?gures about how many women died and who they were. Still, it would be to go into the archives and ?nd the story of one woman who died of an illegal abortion. Perhaps a huge funeral march could be organized in her memory, if only to remind Americans that women die from abortions?not nameless women, but women of ?esh and blood, women with friends and loved ones, women whose lives were cut short while they were still young. The next issue is the most dif?cult but most important one of all. The anti-abortionists have spent sixteen years and countless dollars telling America that ?abortion is murder.? Watch any anti-abortionist rally or listen to any abortion debate, and you will see that the anti- abortionists? entire argument rests on the idea that a fetus is an ?unborn baby.? In the latest twist, in a ?National Town Meeting? debate on abortion rights televised by PBS on April 9, the anti-abortionists re- peatedly referred to fetuses as ?preborn babies.? How- ever, if one accepts that a fetus is a ?preborn baby,? one has to agree with the anti-abortionists. There is simply no argument. So, what does the pro?choice movement say in re- sponse? On the question of the human status of the fetus, the pro-choice movement?s reaction has been a resounding ?no comment.? But the American people are demanding a forthright answer to this question from the pro-choice movement, and the movement?s failure to respond lends tacit support to the anti-abortionist position. The last ten minutes of the hour-long debate was reserved for questions from the audience. Three out of the ?ve questioners brought up the issue of when life begins. The ?rst was a right-to- life woman who said, ?Let?s just get biological. I would like to ask . .. each of you to respond to the question, If it?s not a baby at the moment of conception, what is it?? Then an older man?someone I would count as a member of the ambivalent majority leaning over to the anti-abortionist side?said, ?There?s a basic question that nobody has really answered on the pro-abortion side of the fence. When doer life begin?? OK, let?s get biological. Most abortions take place between the eighth and twelfth weeks of gestation. At that time the fetus is two to three inches long and weighs less than 1.5 ounces. Its brain, still in the very early stages of development, weighs at most ten to ?fteen grams, compared to 350 grams for a newborn infant?s and 1200 to 1400 grams for an adult?s. A fetus, especially a fetus in the ?rst trimester, when 91 percent of all abortions are performed, is no more a baby than an egg is a chick. The pro-choice debaters, good liberals that they were, kept saying that the point when human life begins is a religious issue that honest people can disagree about? that some people may feel that human life starts at conception. This answer sounds like?~and frankly is?a wishy?washy cop-out. The question is not simply a reli- gious question; it?s a moral one as well. In any case, the pro-choicers? response is unnecessarily conciliatory. Of course ?human life begins at conception??just as a building begins when you lay a cornerstone. But the belief that a full human life exists at conception is simply nonsense, no more a question of differing opinions, reli? gious or otherwise, than the statement that the world is ?at or that the earth was created in the year 4004 B.C.E. body, a human form; if it entails a quality of con- sciousness or existence; then somewhere in the second trimester a human life begins. Before that a fetus is the potential for human life, absolutely precious as such, but without the neural equipment to experience anything we would recognize as a human life. This is not to claim that there?s no moral component to abortion. Most women considering abortion do realize that a potential life must be treated seriously. Yet they also recognize that a zygote and an eight-month-old fetus are in no way morally equivalent. Still, Americans constantly hear the argument that there is no moral way to separate the two, and in light of the fact that the pro-choicers have been unwilling to address the question, these people are beginning to believe the anti?abortionists. The pro-choice movement must be willing to rise above euphemism and speak truth. Especially if abortion again becomes a matter for each state to decide, the distinction between a zygote and an eight-month-old fetus may become pivotal in the battle to save abortion rights. The viability argument has always rested on shaky ethical ground. In essence, it says that as long as the fetus is totally dependent on its mother for survival, the mother has the right to terminate its existence. This is a hard position to defend morally; the right to survival should not be based on questions of dependence. But if we change the terms of the debate so that they deal with the fundamental ques- tion of when life begins, we start to create possibilities other than the yes?or?no choice offered by absolutists on both sides. Legislators, in an eager mood to com- promise, will begin to negotiate cut-off dates for legal abortion. Some states? cut-offs will be very early, some will be late; but the overall effect will be to reduce the power of the fundamentalists to mold the debate. This two-pronged campaign, focusing on women?s need for (as opposed to right to) an abortion, and entailing a serious public inquiry into the human status If human life is something more than a human of the fetus at various stages of development, is the fastest way to reach consensus about abortion, one that takes into account the moral issues most people feel. It might defuse the civil war that we seem to be approach- ing, and it would also isolate the extreme right wing and set the stage for acceptance of RU486, the pill that induces early abortions. The communications problems of the pro-choice movement are only a re?ection of the broader dif?cul- ties that liberal and progressive movements are having in America today. In many ways, liberals and progressives have given up trying to persuade the American people to agree with their point of view. Americans are most responsive to that which makes the most moral sense. For that reason, what is deepest and truest is also what is potentially most popular Back in the sixties, the right wing was as popular as?well, as the left wing is now. There?s nothing mys- terious about this change in political fortune. In the sixties, the right wing morally discredited itself through its opposition to civil rights. Right-wingers looked pretty venal to the average American; they argued for segrega- tion while Blacks in suits and ties and Sunday dresses were shown on evening television getting attacked with police dogs and ?re hoses. Then came abortion (along with pornography and the exaggerated evils of suspects? rights), and the right wing was truly born again as the protector of the good and the innocent against the wicked and the licentious. While progressive people offered legal and technocratic answers to America?s ills, the right wing grabbed the moral high ground in America?s debates. Liberals and progressives have also experienced a strange failure of the imagination. They seem to be struck by a need to communicate their vision in only the most earnest and humorless way imaginable?a sort of homegrown ?socialist realism.? With depressineg few exceptions, their brochures, pamphlets, and adver- tisements fall into one of two categories. They?re either bland, apolitical exhortations that self-consciously try to appeal to Yuppies, or they?re tomes that seem to say, ?Here is three times more information about this subject than you?ve ever wanted to know. Now that you know the Truth, you?ll agree with us or you?re a heartless idiot.? Americans will listen to a progressive movement will- ing to reach them. As a whole, Americans are a compas- sionate people with a deep sense of justice and a great deal of sympathy for the underdog?and, by and large, ABORTION 25 the American people have failed us because we have failed them. We?ve stopped listening to their concerns, and most of all we?ve stopped speaking their language. As in any relationship, all the love and goodwill in the world don?t make up for an unwillingness to listen and communicate. The moral vision that we progressives hold can be the most important weapon in our arsenal. We must not focus on narrow legal and procedural concerns; we need to be up front about our moral commitments, ?nding ways to articulate them and relate them to ABORTION Abortion in Jewish Law political concerns. Americans are most responsive to that which makes the most moral sense. For that reason, what is deepest and truest is also what is potentially most popular. America has been talking to us all along. It?s up to us to ?nd the right words to say in return. If we can listen to what America is telling us, be humble enough to see what we have misunderstood, and express our ideals and our compassion in words that speak to the American heart, then a new political era may begin. Rae/gel Biale ewish law (halakha) has no single coherent position on abortion. Instead it presents a number of central opinions-that, when carried to their logical con- clusions, lead to a range of possible rulings on abortion and to internal contradiction. Abortion appears in biblical legislation only in the case of accidental miscarriage: ?When men ?ght and one of them pushes a pregnant woman and a miscarriage results, but no other harm ensues, the perpetrator shall be ?ned whatever the woman?s husband may exact from him? (Exodus 21:22). Accidentally induced abortion is treated as a civil matter, and the husband is compensated for his loss of progeny (since, according to biblical law, all his wife?s ?products? are his property). If, however, ?other harm? occurs, namely, the woman is killed or injured, ?the penalty shall be life for life? (ibid.). The destruction of a fetus is not considered a capital crime, and therefore, later sources conclude, a fetus is not considered a living person. In fact, the fetus is de?ned as a part of its mother?s body: ?ubar yerek/a immo? fetus is [like] its mother?s thigh,? Hulin 58a, Gittin 23b). The fetus has no independent rights, and it may be destroyed to save the mother?s life, even as late as the birth process itself: ?If a woman is having dif?culty giving birth, one cuts up the fetus within her and takes it out limb by limb because her life takes precedence Rachel Biale is the author of Women and Jewish Law (Scbocken Books, 1984). She is a practicing social worker in Berkeley, California. 26 TIKKUN VOL. 4, No. 4 over its life. Once its greater part has emerged, you do not touch it because you may not set aside one life for another? (Mishna Oholot Thus the fetus becomes an independent person only when its head or most of its body has emerged (Sanhedrin 72b). In fact, a newborn is not considered fully viable until thirty days after birth, and a neonate?s death before thirty days is not mourned like other deaths. Nevertheless, the fetus is valued as a potential life, and thus one may violate the law in order to save its life?for example, carrying a knife on the Sabbath in order to operate and assist in the delivery (Yoma 85b). Consequently, even those halakhic authorities who base their ruling on the principle that a fetus is not a person allow abortion only in the gravest circumstances. In fact, most halakhic authorities permit abortion only to save the life of the mother. They follow, in one way or another, Maimonides?s argument that the fetus is a pursuer (rodef) who, like a murderer chasing a victim, may be killed to save the life of the pursued: ?Therefore the Sages have ruled that when a woman has dif?culty in giving birth one may dismember the child within her womb, either by drugs or by surgery, because he is a pursuer seeking to kill her? (Mishneh Torah, Hilkhot Rotze?akh U-Shmirat Nefesh Maimonides?s ruling that the fetus is a ?pursuer? implicitly undermines the argument that a fetus is not a person. In other words, if the only reason that the fetus can be destroyed is that it is a pursuer, the implication is that it might be considered a person. Although