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