Abortions: A Miscarriage of Justice

NO ONE IS pleased with the new bill restricting abortions that the Massachusetts legislature passed this summer; practically no one, on either side of the issue is even satisfied with it. But despite the fact that it can only lead to more controversy, few people have paid much attention to the bill since its rather dramatic enactment last month. The anti-abortion forces accept it because a more restrictive bill might have been challenged in the light of the Supreme Court's January 1973 decision on abortion, and most people who are in favor of abortion accept the bill on the theory that it is "not all that bad."

Indeed, on the face of it, the bill's restrictions really aren't so extreme, especially when they are compared with some of the bill's original provisions. It was repeatedly watered down before both the House and Senate passed it almost unanimously in July, and easily overrode Governor Sargent's well-publicized veto of the legislation in the last days of the session in August. In its final form, the new law prohibits abortion after the 24th week of pregnancy unless the mother's life is in danger, and requires that women under 18 have the consent of both parents before they can get an abortion. It also requires that all abortions be certified as necessary by a doctor.

Some groups see a good deal of evil in these restrictions. Susan Gunderson, chairman of NOW's task force on abortion, fears that the certification requirement might mean that a doctor could be prosecuted for having performed an abortion if somebody contended that it had not been necessary--the language of the bill, "necessary under all attendant circumstances," is somewhat vague. And the Civil Liberties Union plans to challenge the provision concerning women under 18 on the grounds that it is unconstitutional.

But the general reaction to the restrictions is much more apathetic. Any doctor who is willing to perform an abortion, the reasoning goes, will be willing to go through the formality of signing a piece of paper saying it is necessary, and even if some women will have to have their parents' consent to get an abortion, at least all women will not have to have their husband's consent, as in the original proposal.

Both reactions, however, miss the most important point about the bill, for it is the principle behind the restrictions, and not the restrictions themselves, that is so dangerous. The real significance of the bill is that its very existence asserts that the government has a right to legislate abortion, and as long as that principle survives, the struggle over abortion will continue unabated. The new bill's assumption that government supervision of a woman's choice of whether or not to have a child is justified, more than the nature of the supervision itself, is what is significant for the future. The existence of any legislation governing abortion, however mild, signifies that it is a political issue, and as such, one that can be debated and decided publicly.

BUT THERE is no reason abortion should be a political issue. Other medical procedures that are as simple and safe as abortion are not legislated, except as far as is necessary to protect the patient's health. Decisions to have or not to have any operation are always personal decisions that the state does not regulate; logically, there is no reason why abortion should be treated differently. That some people believe it to be morally wrong does not make the decision to have an abortion any less of a personal issue.

That a vocal minority thinks abortion is morally wrong is also not the main reason it has traditionally been differentiated from other comparable personal decisions and treated as a public issue. The main reason is that, simply, abortion is not a personal issue that confronts men, and men, for the most part, make laws. For men, abortion can be a political, philosophical and abstract question because it is never a decision they will have to make personally. When men and women discuss abortion--as I know from long experience--the discussion is invariably on two completely different levels: men, even men who are in favor of abortion, will treat it intellectually, even academically, and women will treat it emotionally. For men it can be a question of when life begins, for women it is a question of their lives and their bodies.

So, by signalling that legislation on abortion is legitimate, the new bill in Massachusetts signifies that the government, in this case the Massachusetts legislature, still sees abortion from a male perspective, that is, as a public and not a personal issue. And once legislation on abortion is accepted as legitimate, there will always be somebody trying to change the legislation. For the present, abortion as a legal right in this country is fairly safe: the Supreme Court's ruling saved women in Massachusetts (and no doubt other states as well) from many severe restrictions on abortion. Congressional officials deleted them from the original version of the bill for fear of looking ridiculous when their legislation was found to be unconstitutional.

But where abortion is not recognized as a personal right, there is always the possibility of challenging its status as a legal right. And in fact, Massachusetts Citizens For Life, the major local anti-abortion organization that introduced the bill that was just passed, is concentrating its energies not on state bills but on that supreme form of legislation, a constitutional amendment. And it will continue to do so as long as abortion is treated as a public issue that can be legislated. The apparently mild restrictions on abortion in Massachusetts' new law do not indicate that the controversy over abortion is dying down; on the contrary, it will not end until our male-dominated society recognizes that abortion is a personal question and one that cannot be legislated.