The Abortion Decision: Justice With Blinders

BACK IN 1973, when the Supreme Court ruled that women had the right to decide for themselves whether or not to carry a pregnancy to its full term, a lot of people were relieved. No more deaths from illegal abortions, no more unwanted children in families that couldn't give them healthy physical and emotional environments--a lot of agony could be prevented. And it was a decision in the best liberal tradition of the law: since the question of whether the fetus is a living being in the first three months after conception remains unresolved, the court left it up to the people involved in an unwanted pregnancy to decide whether to terminate it. Abortion is a private decision, based on the individual's own views, and the legal system politely bowed out of the moral questions involved. A wise move, given the lack of consensus on the issue.

But the legal system has stepped in again. On June 20, a six-man majority of the Supreme Court held that states need not provide Medicaid funds for elective abortions, or even require public hospitals to perform them. Eight states have already passed legislation along these lines, and several more--including Massachussetts--are moving in that direction.

The majority of the court chose to look at the matter in strictly legal terms. The Connecticut law in question, according to the majority opinion, "places no obstacles--absolute or otherwise--in the pregnant woman's path to an abortion... The indigency that may make it more difficult--and, in some cases, perhaps, impossible--for some women to have abortions is neither created nor in any way affected by the Connecticut regulation." Medicaid programs are designed expressly to insure minimum standards of health care for the poor, but the court ignored that fact completely. In effect, as dissenting Justice Harry A. Blackmun wrote in his opinion, the majority ruling "is almost reminiscent of let them eat cake." Women with higher incomes are not seriously affected by the decision; while they may be inconvenienced if public hospitals stop permitting elective abortions on their premises, there will still be abortion clinics for those who can afford them.

While the ruling may be sound on legal grounds, in practical and moral terms it is an utter disaster. Medicaid funds have paid for about 300,000 abortions since the 1973 ruling; without those operations, there would now be 300,000 unwanted chldren growing up in poor families that would be hard-pressed to provide adequate care for their children.

The court's decision means that in states that cut off Medicaid funds, poor women will have to confront not only the trauma that almost inevitably accompanies the decision to have an abortion, but also the problem of finding enough money to pay for one. Women who cannot scrape up the $150 needed for a typical first trimester abortion are certainly unlikely to have enough money to raise a child under decent conditions. They are far more likely to turn to cheap, unsafe abortions, or to go unwillingly through with the pregnancy and give the child up for adoption. The court asserts the state has a "strong interest in protecting the potential life of the fetus"; what of the lives of the mothers? Thousands of women died from illegal abortions before the 1973 decision, and the court should recognize that its decision will effectively force many poor women to return to kitchen table butchery. And surely the state cannot have a strong interest in providing for thousands more unwanted--and probably unhappy--children than it does now.

As Justice Thurgood Marshall aptly pointed out in his stinging dissent, the court's ruling will have far greater impact on non-white communities than on white ones. Nearly one-third of the women who received Medicaid funds for abortions in the past were minority group members, a disproportionately high share. Marshall's frank summary of the court's decision is understandably harsh:

The enactments here brutally coerce poor women to bear children whom society will scorn for every day of their lives. Many thousands of unwanted minority and mixed-race children now spend blighted lives in foster homes, orphanages and 'reform' schools. Many children of the poor will attend second-rate segregated schools. And opposition remains strong against increasing [federal] benefits for impoverished mothers and children to grow up in a decent environment. I am appalled at the ethical bankruptcy of those who preach a "right to life" that means, under present social policies, a bare existence in utter misery for so many poor women and their children.

In short, the court majority has refused to recognize the direct relation between the legal order and the real world, and, in doing so, has ignored the claims of social justice.

Pregnancy is not a disease, nor is it completely unavoidable. But even the best contraceptive methods are not infallible, and the only sure way to avoid pregnancy is abstention. By that standard, perhaps the court believes that Medicaid recipients who smoke should not be covered for cancer treatments; no one has to smoke, after all. The court's decision adds one more injustice to those the poor and disabled suffer in our society, an injustice that will be visited on the children as well as their parents.

IN A MONTH, the Massachusetts legislature will consider a bill similar to those that have already cut off Medicaid abortion payments in eight states. At the moment, the legislature seems likely to pass it. Gov. Michael S. Dukakis has said he will veto the bill if it passes, but no politician is completely trustworthy on this issue; the anti-abortion lobby is far too vocal for an elected official to ignore. Anti-abortionists have already begun to lobby for the votes they would need to override the veto, anyway. Public opinion polls have shown repeatedly that a vast majority of Americans believe abortion should be available on demand, and it is hard to believe that they would refuse to see Medicaid funds used for this purpose. But that majority has been silent since 1973, while the so-called right to lifers--who seem willing to ignore the woman's right to determine the course of her own life--have made a great deal of noise. Unless it starts making its position clear, the majority may find it has been overruled in Massachussetts; and the families who are on Medicaid may find themselves facing a whole new kind of social injustice.