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Abortion, Sarah Palin's Amniocentesis, and the Pro-Life View of Sex


Monday, Sept. 15, 2008

Defenders of a right to terminate an unwanted pregnancy usually rely on one or both of two independent rationales. The first is that a zygote, embryo, or fetus (hereinafter "a fetus") is not a "person" in possession of human rights, including the right not to be killed. The second rationale is that regardless of the fetus's moral status, a pregnant woman, like every other human being, is entitled to defend her own bodily integrity against invasion and may refuse to allow her body to be used - in a demanding and painful way - as a resource for another's survival. The second of these rationales provides the possibility of common ground between pro-choice and pro-life advocates, depending on how one interprets the relationship between risk-taking and consent.

In this column, I will take up these general issues as well as the question of how the particular risk posed by amniocentesis fits into the debate. That question arose concretely in the vice-presidential candidate Sarah Palin's decision to undergo an amniocentesis despite her opposition to abortion.

Two Arguments for Abortion Rights: Personhood and Self-Defense

The first of the pro-choice positions - denying the "personhood" of a developing fetus - provides no possibility of common ground with abortion opponents. If I am committed to the view that a fetus has no rights at all, and you are committed to the view that a fetus has the same rights as you or I have, then it is difficult to imagine us ever reaching a consensus on the abortion issue.

Yet there are in fact areas of consensus, as I have discussed in other columns, including here, here, and here. The basis for the consensus, where it exists, is the second rationale animating the pro-choice community - that even if we assume for argument's sake that a fetus is a person with the same rights as other persons, it is still the case that a pregnant woman has a qualitatively different relationship with the "person" of her fetus than any other human being has with any other person. Stated differently, the fetus actively occupies and uses the woman's body (albeit without fault or intent) to facilitate its development, and - at least sometimes - a woman therefore has the right to defend herself against such use.

To give one example, many pro-life advocates in the U.S. support a narrow "life of the mother" exception to a ban on abortion. That is, if a particular woman will die without an abortion, many self-described pro-life individuals believe that an abortion is morally justified and ought to be permissible. Several years ago, in fact, pro-life columnist Ann Coulter said that she had "never heard of anyone who thinks abortion should not be 'available' to save the life of the mother," and that such a "lunatic fringe of the pro-life movement" is "nonexistent."

Coulter's claim that no one holds this position was an exaggeration. In El Salvador and elsewhere, for example, there are laws banning abortion under all circumstances. But Coulter did accurately capture the pro-life sentiment that frequently accepts a "life of the mother" exception.

Whether pro-choice or pro-life, of course, virtually no one would permit a woman to kill her child (or anyone else's child) just because killing him is necessary to saving her own life (e.g., because she needs a vital organ that only that child can provide). An abortion, however, is distinct from killing an unconnected child, even assuming that the fetus and the child are moral equals. It is this difference - the fact that a fetus, by developing inside a woman, threatens that woman's body - that permits an abortion to save the mother's life.

Members of the pro-life community who acknowledge the unique burdens that a fetus places on a pregnant woman nonetheless have a ready answer to the question of how the State can in most cases compel a woman to sustain such an assault on her bodily integrity. Their answer is consent. They contend that by engaging in sexual intercourse, at least when it is consensual, a woman consents to remaining pregnant and thereby sustaining the life of any fetus that results from the sexual contact.

The State may not, of course, forcibly place an embryo inside a woman's body and then force her to carry the resulting pregnancy to term. But the State can, on this reasoning, require that a woman allow her body to nurture a life that, but for her having had sex, would not have come into existence. It is on this theory that some members of the pro-life community (the pre-election-2008 John McCain, for example) support a rape exception to a ban on abortion: In the case of rape, a woman never did anything amounting to consent to the burdens of pregnancy.

Treating Risk as Consent

There is a problem with the "intercourse as consent" argument, however. It assumes an equation that is not self-evident. Sex is not, after all, an explicit consent or "invitation" to a pregnancy (in the way that, for example, a visit to a fertility clinic for in vitro fertilization might appear to be). Pregnancy is merely a risk associated with sexual intercourse. To characterize the taking of this risk as "consent" to the pregnancy thus requires something more in the way of an argument.

Here is an argument that one might make in defense of the position: When a woman has sexual intercourse with a man, she takes a non-zero chance that she will become pregnant as a result. Most women understand this fact. Therefore, most women who have intercourse knowingly take on the risk of pregnancy. When the risk is realized and a life thereby created, it follows that the woman in question has consented to the existence - and the necessary dependence on her body - of that life. If the life has the moral status of a "person," the woman has accordingly consented to the presence of that person inside her body and the associated obligation to take care of that person (by remaining pregnant), just as someone who brings a (physically separate) child into his home has an affirmative obligation to nurture and protect that child.

This defense is consistent with various principles of our legal system and social culture that treat risk-taking as consent to responsibility for foreseeable consequences. If you drive a car recklessly, you risk injuring or even killing other drivers or pedestrians. If the risk you take comes to pass, and a person dies as a result of your reckless driving, the law holds you responsible for homicide in connection with those deaths.

If you lend me your laptop computer and I leave it on a towel at the beach while I go for a swim, you will hold me responsible if someone steals it or if it is waterlogged and thereby destroyed by the time I am expected to return it. By leaving the computer alone on a towel, I knowingly risked its being stolen or destroyed. Though I did not myself steal it or destroy it, you will hold me responsible for bringing about the theft or destruction, if it comes to pass.

Finally, if you decide to go skiing on a dangerous mountain and injure yourself in the process, you will have only yourself to blame and will likely have to live with the consequences (rather than recovering money from the people running the ski resort). The legal doctrine of "assumption of the risk" accepts this principle in the torts context: if you engage in some high-risk activities, you will have to absorb the entire loss when the known risks are realized. It is, for all intents and purposes, as though by taking that risk, you had consented to the risk's realization.

Risk Is Not Always Treated as Consent

The law does not, however, always treat risk as the equivalent of consent. We understand that life is inherently risky and that it is often necessary to pick and choose among the risks that we will bear. If we are selecting between risks in a morally legitimate fashion, then the law and/or customary understandings typically treat the unfortunate consequences of those choices as outside of our control, thereby empowering us to react in much the same way when the risks become reality as we would to unforeseeable and unexpected harms.

To give one example, different neighborhoods have distinct crime rates. If you choose to live in a neighborhood with a higher crime rate (perhaps because the lower-crime-rate alternative is either too expensive or so far from your place of work that it would create an exhausting and family-burdening commute), you are not said to be "consenting" to be victimized by crime. If a criminal comes along and robs or otherwise harms you, the law considers you blameless in that victimization. And the penalties for the crime do not turn at all on whether you acted in a manner that exposed yourself to the risk of being victimized. This is true even if you easily could have lived in a lower-crime neighborhood but preferred the attractions that your particular living space offered.

For another example, consider disease. Though illness often strikes people without any warning, there are behaviors that can increase (or decrease) the odds of becoming sick. If a person is sedentary, for example, he increases the likelihood that he will suffer from a circulatory disorder. If the sedentary person develops a life-threatening blood clot or suffers a heart attack or stroke, however, we do not say that by failing to exercise, he "consented" to the clot, heart attack or stroke.

His doctors will not punitively deny him treatment, and - if he requires emergency room care as a result and cannot afford to pay for it - our emergency rooms (our current version of "universal health care") will remain open to him. Though he knowingly acted in ways that risked illness, we nonetheless treat the actual illness he suffers in much the way we treat any other illness: as a misfortune that has befallen him and calls for medical help.

Risks That Are and Are Not Tantamount to Consent

What distinguishes those risks that are tantamount to consent from those that are not? One answer is the likelihood of the risk's coming to pass. All other things being equal, if you take a vanishingly small chance that something will happen, then we are less likely to hold you responsible for the ultimate occurrence than we are if you take a much greater chance with respect to the same outcome. In the torts context, for example, the "assumption of the risk" doctrine applies primarily to very dangerous activities like skiing and scuba diving.

Beyond the odds, another factor that tends to weigh in favor the equation of risk and consent is the legitimacy of the activity at issue. If you are taking even significant risks in the praiseworthy effort to save another person's life, we are less likely to say that you have "consented" to the harm that occurs than we are if you are taking those risks because you enjoy riding your skateboard up and down a flight of stairs or driving recklessly through the streets.

And although it would be great if everyone exercised regularly and lived in a safe neighborhood, we all understand that this is challenging for many people, for financial, temporal, and motivational reasons, and we accordingly treat their suffering as blameless and nonconsensual.

Pregnancy, Abortion, and the Risk/Consent Equation

Returning to the question of whether consensual intercourse represents "consent" to pregnancy, consider the factors identified above. Is an act of consensual sexual intercourse extremely risky with respect to pregnancy? The answer depends in part on the woman's age, on where she is in her menstrual cycle, and on whether she or her partner is using contraception.

Even if a woman has unprotected sex, however, her odds of conceiving are quite low (some estimates are of a 2% or 3% chance), and we do not ordinarily treat as "consent" the taking of such a low risk. Furthermore, the "odds" are complicated by the fact that many women - especially sexually active minors who have not received accurate and complete sex education - operate under misapprehensions about how likely they are to become pregnant, including the false beliefs that (a) pregnancy is impossible the first time, (b) withdrawal before ejaculation precludes conception, and (c) sex in positions other than the missionary protect against conception.

If one can be said to "consent" only by knowingly taking risks, it would seem in many cases to be inaccurate to say that a woman who has had consensual sex has thereby consented to nine months of pregnancy and labor.

A second factor we identified in considering the equation between risk and consent was the legitimacy and importance of the activity giving rise to the risk. If we believed, for example, that having sex is not an especially important part of life, then it might be acceptable to demand of women that if they do not want to endure the burdens of pregnancy, they should simply remain celibate. For the most part, however, people do not view celibacy as a feasible life alternative.

Though some individuals take vows of celibacy, most view sex as an integral and even essential part of life. Accordingly, it would seem draconian to treat intercourse as consent to pregnancy, to tell women - in essence - that they must forego any and all sexual intercourse unless they are prepared to undergo a pregnancy. As a morally legitimate, low-risk (vis-รก-vis pregnancy) activity, intercourse is a poor candidate for the equation of risk with consent.

Sarah Palin's Amniocentesis: Risk or Consent to Abortion?

Earlier this month, I wrote a blog post on Dorf On Law posing the question why a pro-life person might undergo an amniocentesis procedure to detect chromosomal fetal anomalies. The specific context was the moving personal narrative of Sarah Palin, the Republican candidate for Vice President and a vocal opponent of abortion (even when the unwanted pregnancy results from rape). Earlier this year, Palin gave birth to a baby boy with Down Syndrome after learning of his condition through an amniocentesis during her pregnancy.

In the post, I suggested that for someone who under no circumstances would terminate a pregnancy, undergoing an invasive diagnostic procedure like amniocentesis, which risks a spontaneous abortion, might appear reckless. I inferred that Palin therefore probably did, at least briefly, consider abortion. It is possible, however, as some critics suggested, that she simply wanted information about her baby for her own peace of mind and that she truly did not for a moment contemplate terminating her pregnancy.

If this is so, then she took a very small but non-zero risk of inducing an abortion through the procedure (a risk that some say is 1/200, others 1/750 or even lower). If that risk had come to pass, would it have been fair or accurate to say that Sarah Palin had thereby consented to an abortion?

My answer would be no. I think that pursuing peace of mind and the ability to prepare for a challenging relationship is worth a great deal, and I would take into account as well the fact that the risk is low (even at 1/200). I, however, am one who rejects the view that sex represents consent to a resulting pregnancy.

If one instead accepts the view that sex is tantamount to consent to a pregnancy, then the "peace of mind" amniocentesis that ultimately induces an abortion begins to look a lot like a consensual abortion.

To argue that Sarah Palin did not effectively consent to an abortion (as I believe she did not) concretely exposes the inherent difficulty in maintaining, as many pro-life advocates have, that women exercise reproductive choice simply by deciding to have sexual intercourse with a man. The equation of risk and consent here requires a normative leap, and the relevant norms do not appear to support that equation.

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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