Robert F. Drinan Strategy on Abortion Results of a survey—and past experience with contraception and divorce laws— suggest a means of countering the drive for legalization of abortion In virtually every public discussion of a pioposed easing of laws forbidding abortion, two assumptions are made and generally go unchallenged. The advocates ol: a "liberalization" of America's abortion laws assume 1) that there is a widespread popular consensus in favor ol abolishing legal bans on abortion, and 2) that Catholics constitute the only group in America opposed to a repeal of the nation's existing abortion laws. A little-publicized survey conducted in the recent past by the highly professional National Opinion Research Center (NORC) furnishes a devastating attack on the validity of the two assumptions generally made by proponents of eased abortion laws. NORC polled 1,484 representative adult Americans about whether or not they thought it should be possible, under certain specific circumstances, for a pregnant woman to obtain a legal abortion. Of this number, 1,482 respondents (constituting a statistically adequate sample of general American public opinion) answered six variants of the question: "Do you think it should be possible for a pregnant woman to obtain a legal abortion?" The figures following represent percentages of the total: America / February 4,1967 YES If the woman's own health is seriously endangered by the pregnancy If she became pregnant as a result of rape If there is a strong chance of a serious defect in the baby If the family has a very low income and cannot afford any more children If she is not married and does not want to marry the man If she is married and does not want any more children DON'T NO KNOW 71 20 3 56 38 6 55 41 4 21 77 2 18 80 2 15 83 2 The replies to the last three questions are clearly and strikingly different from the answers to the first three. A strong majority of the American people think that a legal abortion should be possible if the mother's health is in danger, while a slim majority feel that abortion should be available for the victims of rape or if there is a great probability of a serious defect in the child. On the other hand, an average of 80 percent of the American public reject the notion of a legal abortion as a solution for 1 ) an unwanted pregnancy by a very poor family, 2) an average of 80 per cent of the Ameriple who simply do not want another child. In an article in the Sept.-Oct., 1966 issue of the journal Trans-Action, Mrs. Alice S. Rossi, research associate on the Committee on Human Development at the University of Chicago, concludes from the NORC survey of attitudes on the legalization of abortion: "Any suggestion of abortion as a last-resort means of birth control is firmly reject. ed by the majority of American adults." Mrs. Rossi's article, which is favorable to the repeal of existing legal bans on abortion, concludes that public opinion gives very little support to such a position for the woman who seeks it mosl frequently—the "married woman who has the number of children she wants." Despite the fact that "millions of living American women" who have had the number of children they want desire an abortion, Mrs. Rossi concedes, this ex- 177 perience "bas not affected public judgment that aîxirtion is wrong and sboiild nol be legally allowed." The NORC results do not. of course, diminish the di.stinct possibility ihat abortion may be legalized in some State in America in îbe foreseeable future. One significant element not tested in the NORC survey is the ¡ittiuidc public opinion would adopt wiib regard to legalized abortion if ¡be continuation of the pregnancy was deemed to be injurious 10 the "nientaT" healîh uf ibe mother. The first of the six questions noted above inquired only aboul Ihe •"be;iUh"' of the mother: tha! qiiesiion is thus inherently ambiguotis. since ii is not clear whether the respondcnis unJcrstoüd "heaitb" to iiican prüctícaíly tbe survival oí Ibe mother or a serious but ciearly non-latal sickness or a thre;ii to her "mentar' heaüh. I helcgaiizalionoí abortion proposed in 1959 by the influenha! Amencan Law Inslituie wouki luiibdrize an abortion if two physicians (not necessarily olwtetricjans) eertified thai an iiilerruption of the pregnancy was required for the "physieal or mental health" of the mother, it is this proposal that in substance was adopted in September, 1966. by the Calitornia .Stale Eiar Association, the first legal group of this nalure to lake sucb a step. Clearly the term "mental health"' is capable of alriiost countless definitions and is Eberefore ¡be "F'andora's box" in the proposed abolition di legal sanctions for iibortion. The NORC study does, however, suggest certain faets on which the opponents of the legalizalion of aborüon -sbould retleet. Among them are ¡be following: 1. The advocates of legal abortion lend lo concentrate their ease (or at least their emotional appeal) on the plight of women wbo are pregnant by rape or incest or who are about to bear children maimed by ihalidomidc or German measles. The thrust of the argument is tbat the entire law forbidding abortion must be abolished io order to prevent tragic conseqtfences to a grotip that, it must be kept in mind, is infinilesimal in relation to the total number of women who desire an abortion. 178 The rupe-incest-tbaîidomitie cases are the hard ones, and by concentrating on and exploiting ail tbe paibos involved in ihese cases, the proponents oi abortion foree ibeir opponenls—and particularly CaihoHcN—into the awkward situation oí being beariles^s legislalors who prefer a metaphysical principle îo a mereifu! resolution of an agonizing situation. The NORC survey suggests that Catholics and others who oppose attempts Io legalize abortion should not get cornered into discifs-iiiig the emotion-laden and exceptionally rare ease. but should raiher foree Ihe advocates of abortion lo get to ibe central issue and to address their ease to the 83 percent t)f the American people who ¡ire oppoM'il EO a lejial ahorlion even wben a husband and wife hoth desire an aborlion ior an unplanned and unwanted pregnancy hccause ihey already bave Ibe numher of children they desire. 2. I he NORC survey omitied a problem commonly exploited by advocaies ot legalized abiirlion—the availability ()l an aboriion for a pregnancy tbat resulied (roni inecsî. \\ would appear that problems oi" Ihis type couki generally be treated either as rape or as situations where a pregnancy may result in a seriously defective child. In any event, ibe emotional appeal derived from the very rare problem of incest \s totally disproportionate to the importanee of this occurrence. 3. The NORC survey--along wifh 'icveral other events that have occurred in the ever more militant campaign to legalize abortion—suggesis lo tbis writer that the opponents of legalized ahiirtion, rather than merely reiterate undeniably valid moral and legal arguments against abortion, should consider seriously taking a more positive stand, one Ihat. hy meeting the oppo.siiion head-on with regard to the hard ease.s of rape. incest and predictably deformed infants, would isolate public debate lo these very rare eases and thereby prevent propaganda for and the enactment of a broadly written bill legalii^inj; abortion in aimosi ali instances. The advocates o! aboriion clearly have the initiative at this lime. Tbey are wcil-orgaoized and aoiply financed, and are making "eonverts" by ibe emotional impact of tbe rbeiuric surrounding the usual "parade of the horribles" -children conceived through rape and incest or infants doomed lo deformity. The case for abortion is gaining îavor; the New York chapter of tbe American C ivil IJIierties Linion is discussing within its governing body, and also piiblicly, wbether the ACLU should declare that there is a "civil righi" to an abortion. Abortion wili in all likelihood be more o!' a live issue in the fortbeoming session of the New York Legislature tban ever before in any State in the course o^' our country's history. The proponents ot legal abortion ali over tbe nation are posing tbe questions and debating fhe issues as they themselves have framed and defined ïhcm. In Ebe lamiliar adage oi rhetoric, he who frames the question bas Ihe debate half won. The NORC^ survey suggests that the advocates of abortion have done precisely ihat-they have convinced more Ihan half Ihe nation (hat abortion shiHild be available if the mother's health is endangered, if îhe mother is a victim of rape or if the ehild will in all probability be seriously defeclivc. Will the reasoning that has ¡ed more iban hair the nation to these conclusions inevitably lead ihese same individuals to approve of abortion for any mother with an unwanied pregnancy? Theoretically, it should. Logically, it will—unless tbe Ihrust of the emotional arguments can in the near future he confined and isolated to those rare anti heart-rending situations tbat the advócales of abortion have exploited. The opponenls of legalized aboriion have heen al a severe disadvantage in those states ( llîinuis. Minnesota. New Hampshire. Califoinia. New York) where hearings and legislative deliberations have been conducted on bills to refx-ai existing abortion laws. The opponents of [he legalization of aboriion could capture the initiative hy confining the cuniroversy to very spécifie afiii difficult cases. T 0 achieve rhis end. it might he necessarv to file Ictiistation designed lo meet some of the objectives advanced by the advocates of abortion. Consideration sbould be given, for example. îo tbe three iollowing proposals: I- A carefully drafted bill could he prepareti permitting the victim of a nipc to obiain medical assistance that migbt Atiurira / r-briuiry 4, ¡967 prevent a pregnancy; Catholic moral theology would not be opposed to such a provision. 2. Similariy, a law could be draflecl that would make special provisions ior the defective child born lo a woman who has been refused permission for an abortion by a quaiificd courl acling on the best medical advice available. A chiid born under these circumstances would be the legal beneficiary oí a special State fund established lor the Üíetime medical care of children whose defective condiiion was prediciable during iheir mother's pregnancy and whose parents were denied legal permission to obtain an abortion. By guaraniceing a lifetime of the best possible care tor children born defective, the Stale would mitigate as niiicfi as is possible the anguisb of prospective parents wbo ieel thai it v^oiild be better lor their delornied inianl not to be born. prevent this eventuality lo propose al ieasl temporary legislation- to be reenacted or repealed within a specific period of five to ten years—(bat wotild regulate the availability of abortion when the continuation of the pregnancy would in all probability lead to the death of the mother. 3. Another specific, caretully qualified proposai could be made by the opponents of legalized abortion with regard to îhe necessity of a so-calied "tberapeulic" abortion uhcn ihe continuation of a pregnancy is asserieti to be highly dangerous to the life of ihe mother. Again, a spécial and adequate State iund to provide the best possible medical ireatnienl for mothers in this condition could be established; a proposal could be made that an abortion in these circumstances woulti he legal only after tbe mother, baving had ihe best medical advice and treatment available in tbe nation, is sull judged by three qualified medicai specialists, giving [beir reusons in a public document. to be in danger of death unless the pregnancy is terminated. Caiht>lics in America have always been reluctant to take affirmative positions with regard to tbe legal irisiitutions oi this coiintr\. Catholics cune to this country just after di\'orce bad become Ihe law ot almost every State; Catholics generally bave not sought lo change or even improve ihose laws. Catholics have often reiicted against any lessening of the moral content ol American law. but tbc\ have seldom if ever taken the iriitiaii\c t{) aller the nation's legal institiitiiins. One can wonder, however, wheibcr tbe indiscriminate availability oí contnicepîivcs today would bave come about if Catholics, instead of seeking to refain an absolute ban on all contraceptives, had negotiated for a law restricting their sale to married persons by ;i pb)sician"s prescription. Similarly, one can raise ihe question whether fathoiics might b;ivc secured divorce laws tbat would actually save niore marriages bat) tbey fougbt for a law granting divorces onK in extremely diñkult cases rather tban opposed any law granting divorces under any circtimstances. Tbe first two proposals suggested above do not involve any relaxation of tbe moral law as it is understood by those who are convinced ihat an abortion is just as evil as inlanîicide. It the third proposal is deemed to be conceding to the State a power it does not have, one .should consider tbe proposal in the light of the principle that when one musl choose between two mora! evils, the best he can do is to select the lesser evil. If. therelore. it is assumed that in the near future there is a distinct possibility that a law ¡uithorizing abortions very liberally may well be enacted in one or several States, it would seem wise for those wbo seek to America / February 4. It might weli turn out ihat the legislation proposed would sharply üisninish tbe incidence of abortions ibat arc now legal in virtually every State when pbysicians jtidge tbat an abortion is required to save the life of ibc motber. Viewed in the light of tbe widespread occurrence of these legalized aboilitMis. the proposal made above is not a compromise with a moral la\\ hut rathei an insistence that there be a legally iitithor-. ized way tor pbysicians to record publicly their decisions to terminale a pregnancy on the grounds that oibcrwise the mother will die, There is. to be sure, a moral ditTer-^ ence between Catholics electing the lesser evil in birth conirol and divorce legislation and Catholics opting for the lesser evil with regard to aborlion laws. To allow the legal authorization o\' abortion underany circumstances seems fike a basic coniproniisc ihat C atholics understandably would be reluctant to make. But if the only choice is between a law thai would permit ahortion only in tbe rare cases of rape, incest or a predictably defective infant and a law that wctuld legalize abortion generally, the Catholic's election is clear. But. it will be asked, is the choice now down to these altcrnalives? Observers will difier as to the urgency or immediacy ol that choice, but clearly all events point in that direction. There exists, iurtbermore, tbe distinct probability that the campaign for a i^enerul abortion law could be blunted by a public discussion of the desirability of a restrictive law for ihe exceptional case. Ihe Ihe foregoing proposed strategy is. oí course, not mean! in arjy way as a substitute lor continued and intensiíieü teaching oí tbe moral truth that—regardless oí what civil law might perniil - -no one's life, however unwanted and useless il may be. can be terminated in order lo promote the bealtb or happiness of anotber buman being, Tbe principle of the inviolability of every human being, even an unborn one. is at present overwhelmingly adhered to by the American people, except in rare and unusual cases. But that conviction can easily be eroded unless there is a constant reminder I o everyone that tbe rights of one or more buman beings to heaitb and to happiness, however compelling they may be. can never become so important tbat they take precedence over anotber human's right to exist. [he right io be born and the right to exist constitute Ihe cardinal principio and centerpiece of Anglo-American law. The advócales of legalized aborlion do not rcjecl this principle, but try to justify Iheir position by asserting îhal ibe non-viable fetus is not really a bunian being. If the proponents of legalized abortion desire lo have an intellcciually honest debate aboul ihc fundamental cbanges they seek in the legal-moral standards of American life. ihey should adniii tbat they are arguing on behalf of tbe principle that in 5on\e circumstances tbe destruction of an innocent buman being can be justified, if it brings a benefit to one or more other mdividuals. |RH[ii-R"r r. I>KINAN, S, .}-. Is dean of ihc Boston (\>liei;c Law School.! • 179