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Bioethics and WomenAcross the Lifespan$

Mary Briody Mahowald

Print publication date: 2006

Print ISBN-13: 9780195176179

Published to Oxford Scholarship Online: September 2006

DOI: 10.1093/0195176170.001.0001

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 Preventing Pregnancy and Birth

 Preventing Pregnancy and Birth

Chapter:
(p.158) 9 Preventing Pregnancy and Birth
Source:
Bioethics and Women
Author(s):

Mary Briody Mahowald

Publisher:
Oxford University Press
DOI:10.1093/0195176170.003.0009

Abstract and Keywords

Cases illustrating variables relevant to women’s choices about contraception, sterilization, and abortion are presented. With regard to abortion, these include duration of gestation, condition of the fetus, methods of termination, availability and cost of the procedure, medical risks to the woman or potential child, capacity for parenting, responsibilities based on relationships to others, and different positions about the moral status of the fetus. For each topic, empirical and theoretical factors are discussed from an egalitarian perspective that privileges women’s standpoint vis-à-vis men’s not only on grounds of nondominance but also on grounds that women, not men, are directly affected by pregnancy.

Keywords:   pregnant women, abortion, contraception, sterilization, medical risks, fetus, relationships, termination of pregnancy, egalitarian perspective, women’s standpoint

The use of medical technologies for fertility curtailment are often more troubling than those used for fertility enhancement. Presumably, this has to do with the contrasting goals of the interventions: to end or prevent new lives, as opposed to initiating or facilitating their development. Some variables may make curtailment more desirable than enhancement for some individuals, and some methods of curtailment (abortion) are highly controversial while others (contraception) are widely viewed as morally responsible. If health care practitioners are trained and obligated to save lives, termination of fetal life may be at odds with that commitment even if the fetus or embryo is not regarded as a person. It is not surprising, therefore, that abortion as commonly understood (i.e., as deliberately ending the life of a developing fetus) is psychologically disturbing even for some who do not object to the procedure on religious or moral grounds. Some, for example, worry that abortions are sought as a substitute for contraception; others find them emotionally distressing. Many practitioners prefer to refer patients who request abortions to others, especially when they are requested late in gestation.1

In chapter 3 I identify and examine a range of positions about moral status. Although that discussion is not repeated here, it underlies all of the topics addressed in this chapter. Different starting points or positions on this issue lead to different conclusions, not only about the disposition of embryos and fetuses but also about the capacity of men and women to become biological parents. Contraception and sterilization are means by which men and women can suspend or end this capacity.

Because of its relative irreversibility, sterilization is more ethically problematic than contraception. From the standpoint of women whose gender identity depends (p.159) on their capacity for childbearing, sterilization may involve a significant psychological burden; for others, the irreversibility may be welcome. Similarly, some men may resist sterilization because they define their gender identity by their ability to become genetic fathers; others may prefer sterilization to condom use for contraception. From an egalitarian perspective, the fact that sterilization of men is less invasive and less costly than it is for women is ethically relevant.2 On grounds of that difference and the verity of nonmaleficence, sterilization of men is more defensible than sterilization of women unless other variables shift the balance so that the procedure is more burdensome to men.

This chapter illustrates only some of the ethically relevant variables of situations involving sterilization, contraception, and abortion. As with previous chapters, actual cases are more complex and morally nuanced than mere narrations or discussions of them can capture.

Contraception and sterilization

Cases

1. Katrina Roberts, a 17‐year‐old with Williams syndrome, lives at home with her parents. Recently, she was sexually assaulted while returning from her special school. While she was recovering, her parents asked their pediatrician to recommend an obstetrician who would perform a tubal ligation on Katrina. They based their request, they said, on their belief that the demands of pregnancy and childbirth were not justified in someone who would not have the ability to raise the child. The obstetrician met with Katrina and asked her what she understood by the procedure she might undergo. Katrina said she knew that it would “hurt a little” and that after it was done she “couldn't ever have babies.” Katrina's sterilization could be legally performed on grounds of the parents' request and their daughter's welfare. Nonetheless, the obstetrician questioned whether such a relatively permanent procedure could ethically be done on someone so young, or anyone whose decisional capacity was in doubt. He knew that when Katrina turned 18, her parents' consent would not legally suffice unless they had been adjudicated to be her legal guardians; even then, they might be required to obtain the court's permission for the sterilization. On grounds that such an irreversible decision deserved fuller and more careful examination than his expertise and time allowed, the obstetrician recommended Norplant as a contraceptive that would prevent pregnancy for several more years.

2. As a child, Sheila Paulson, now 26 years old, was diagnosed as “mildly retarded, of no known genetic etiology.” When she was 16 years old, she underwent sterilization through tubal ligation at the request of her parents. For the past four years, Sheila has lived in an assisted‐living facility with other adults who are developmentally disabled. Two years ago, she married another resident of the facility and moved with him to an apartment nearby, where they support themselves through part‐time work at a local factory. Family members of both are attentive to their needs and willing to contribute financially, albeit modestly, if necessary. Sheila recently visited the women's health clinic and asked to have her sterilization reversed so that (p.160) she and her husband could have a child together. After taking her history, the obstetrician referred her to the genetics clinic for a recommendation on whether the reversal should be attempted. The geneticist discussed the matter with colleagues and subsequently advised the obstetrician not to attempt the reversal because Sheila was “probably unable to fulfill the responsibilities of motherhood, whatever that means.”

Empirical considerations

Methods of contraception vary not only in terms of their effectiveness, convenience, and cost but also in terms of which partner practices the method. The major methods available to women without partner involvement are birth control pills, intrauterine devices, diaphragms, Depo‐Provera, and Norplant.3 Condoms, the only method that offers protection against HIV infection, are used by men, but women are often the ones who ensure that men use them. Spermicides are used by both sexes but with limited effectiveness. That women assume most of the burden of contraceptive practice is not surprising because it is in their bodies that conception may occur. This is also true of sterilization methods. The major method available to men, vasectomy, is much less frequently pursued by them even though it is less costly and invasive than is the main means of sterilization for women, tubal ligation.

Worldwide, tubal ligation is the most common method of contraception. It is a fairly simple, effective operation on women, in which her fallopian tubes are severed and tied off, preventing fertilization. In the United States, the cost is generally covered by Medicaid. In contrast, reversal of tubal ligation is a complex, expensive, and less effective procedure, rarely covered by private insurance or Medicaid. Although pregnancy is achievable in many cases after reversal, the risk of ectopic pregnancy is increased through the presence of scar tissue in the fallopian tube.4 Because of the relative irreversibility of tubal ligation, various methods of birth control are usually recommended instead for young women and those who have not yet had children. Norplant, a highly effective method, is also less expensive and less invasive than tubal ligation. It consists of six small capsules filled with a birth‐control substance (synthetic progestin), inserted under the skin in the upper arm for as long as five years. To be safe as well as effective, the capsules must be inserted or removed by an experienced practitioner. The principal side effect of Norplant is irregular menstrual periods during the first few months; less common side effects are weight gain or loss, headache, acne, ovarian cysts, and excess hair growth.5

Williams syndrome is a congenital disorder characterized by cognitive impairment, physical abnormalities, and impulsive, excessive sociability. Despite their intellectual deficits, affected individuals are often quite competent verbally. The combination of an outgoing personality and cognitive impairment makes them particularly vulnerable to sexual overtures from anyone interested in taking advantage of them. Consequently, a potential offender would probably not need to force Katrina to have sex with him. In such circumstances, it is highly improbable that she is capable of providing ethically or legally adequate consent. This would be true for Katrina even if she were beyond the age of legal majority.

(p.161) A significant variable in case 1 is the rationale for the parents' request. Apparently, they were spurred to seek tubal ligation for their daughter because she had been sexually assaulted. Although their worry that she might become pregnant could be assuaged through sterilization, the risk of being assaulted would remain; in fact, if a potential assailant were concerned about being tracked or identified through a pregnancy, he might be more prone to assault Katrina if he knew she had been sterilized. The risk of assault must therefore be addressed regardless of the decision about sterilization. Concern about this issue also requires attention to the possibility of incest or sexual molestation by relatives and family members. Depending on other variables, the physiological and psychological risks of further assault may be graver than the risk of pregnancy.

Cognitive impairment (cf. mental retardation6) covers a wide range of intellectual deficits, both qualitatively and quantitatively. Some people with Williams syndrome are more musically talented than individuals with a normal or superior IQ, but quantitative thinking is severely limited. Depending on the complexity of the information required for competent decision‐making, mildly or moderately impaired individuals may fulfill the cognitive capability required for informed consent. Sheila has apparently satisfied this requirement, and Katrina may be close to satisfying it. Even if Katrina were not cognitively impaired, however, parental consent would be legally required for her sterilization because she is a minor. In the United States, when Katrina reaches 18, she will be assumed competent for decision‐making unless a guardian is appointed to act in her behalf. As the obstetrician apparently recognizes, specific authorization for sterilization may still be required because guardianship alone does not obviate the need to determine whether a procedure as significant and invasive as sterilization should be performed on someone lacking decisional capacity.

Case 2 does not stipulate whether Sheila has a legal guardian. Since she is married and living relatively independently, this is unlikely. If she does have a guardian, however, the guardian is legally and morally obliged to make decisions that respect her wishes as well as her welfare. In other words, her standpoint should be the guardian's guide. An attempt to reverse her sterilization entails some risk to Sheila's health, as it would for any woman, but her cognitive impairment rather than her health was apparently the provocation for referral to the genetics clinic. Geneticists and genetic counselors are trained to educate clients about genetic risks and conditions. Assessing competence for parenthood is not an expertise for which they have any special qualifications. The obstetrician in this case realizes that he lacks adequate expertise and time to determine whether the procedure should be done. In other words, he recognizes the limitations of his own standpoint.

Theoretical considerations

As already suggested, for some women, sterilization is preferable to contraception because of its relative permanence, effectiveness, and long‐term economic advantage. For others, its relative permanence is viewed as a limitation, thereby raising the threshold of justification. The younger the patient, the higher the threshold, because this implies a longer future in which the option of childbearing is foregone. (p.162) From the practitioner's standpoint, if the woman already has children, age is less problematic because the decision is presumed to be better informed than it would otherwise be. Even for older, childless women, practitioners are more reluctant about sterilization than about contraception because of its relative permanence. Distinguishing between cases on grounds of age or childbearing experience is based on recognition that autonomy is more complex than immediate, literal expressions of preferences sometimes convey. Moreover, respect for autonomy involves respect for the autonomous individual's wishes for the future, as well as present circumstances.

In most parts of the United States, contraception may legally be provided to adolescents who are not cognitively impaired without their parents' consent, but sterilization is not similarly available to them. For both types of procedure, respect for the teenager's autonomy may lead to different positions. Sterilization is avoided to preserve her autonomy for choosing pregnancy in the future; contraception may be encouraged as a means of respecting her developing autonomy and right to privacy. In both situations nonmaleficence is also relevant. Contraception is a means of temporarily preventing the physiological and psychosocial risks of pregnancy; sterilization may eliminate this risk more permanently or reliably but may be more harmful because of its invasiveness and relative irreversibility. It is doubtful that sterilization based on parental request would ever be legally or morally sanctioned for a teenager who is not cognitively impaired; this is a decision that an individual should make for herself when she is mature enough to consider its long‐term ramifications.

Legally and morally, surrogates are expected to make decisions for others from the standpoint of those in whose behalf their are deciding—that is, in their “best interests.” According to maxim 1, “interests” include preferences (cf. autonomy) as well as welfare, but these are occasionally at odds because people are free to choose what is not good for them. To the extent that someone's capacity for decision‐making is compromised, respect for autonomy may be subordinated to beneficence and nonmaleficence toward her. However, only for those whose decisional capacity is totally lacking, such as those who are profoundly mentally impaired, is respect for autonomy irrelevant to the surrogate's decision in their behalf. Neither Katrina nor Sheila falls into this category. Sheila's sterilization at age 16, albeit legal, may thus be questioned on moral grounds.

These cases illustrate both sides of “reproductive rights”: the right to curtail fertility and the right to enhance or promote it. On egalitarian grounds, these rights are supportable for people with disabilities, as well as those who are currently able, and as supportable for people with cognitive impairments as for those who have physical impairments.7 Concerns about the impact of parental limitations on a potential child are also ethically relevant; these probably figure, whether justifiably or not, in the tendency of practitioners and others to view fertility enhancement as more problematic than fertility curtailment in people with physical or intellectual impairments.

The physician in case 1 may have been attempting to avoid the morally complex issue of sterilization for a young woman whose competence was compromised, but his recommendation may also have been based on an egalitarian (p.163) desire for consistency between treatment of cognitively unimpaired patients and treatment of those who are cognitively impaired. By recommending Norplant instead of sterilization, the physician managed to treat Katrina as any 17‐year‐old might be treated. He also avoided the legal difficulties associated with sterilization of a cognitively impaired minor.

Although concerns about potential discrimination are always appropriate, treating patients differently does not imply that they are unequal or that they are treated unjustly. Every patient should be treated differently because each, no matter what her ability level, is different. An egalitarian perspective requires recognition of different needs and abilities, along with efforts to reduce inequalities associated with differences. In case 1, for example, while a decision about sterilization may legitimately be postponed, argument in its support is more compelling than it would be for a person who is clearly able to provide adequate care for a child.

Case 2 illustrates the dominant role that physicians play vis‐à‐vis infertility patients: they can curtail fertility by refusing to provide the treatment. Efforts to reverse tubal ligation are sometimes unsuccessful, but fertility is restored in a substantial number of cases. Interestingly, this case also demonstrates the tendency of some clinicians to “punt” messy problems that they could address themselves, and of others to overstep the bounds of their expertise. Since it was already known that Sheila's “mental retardation” was “of no known genetic origin,” referral to the genetics clinic was inappropriate unless the main reason was to confirm this. Since the genetics team was unable to specify criteria required “to fulfill the responsibilities of motherhood,” they lacked grounds for determining whether Sheila met those criteria.

Missing in the description of case 2 is any mention of the role and responsibilities of others in childrearing. Single as well as married couples who are currently able often need assistance in raising their offspring. The fact that both Sheila and her husband want to have a child, along with the fact that both have lived quasi‐independently for several years, suggests that they may be capable of adequate parenthood, with similar assistance. People who are highly intelligent or professionally successful are sometimes less capable than intellectually or physically impaired, or economically disadvantaged, people of providing the nurturing environment crucial to the development of children. Accordingly, unless criteria for determining whether Sheila can fulfill the major responsibilities for motherhood are introduced and adequately defended, it hardly seems just to deprive her of that right.

Abortion

Cases

1. Ann Brown, a 32‐year‐old woman with multiple sclerosis (MS), became pregnant despite regular use of a diaphragm and spermicide. Following her last pregnancy, Ann was no longer able to walk unassisted, and her condition deteriorated since then. Although her husband is opposed to abortion on religious grounds, he is extremely concerned that continuation of the current pregnancy would further (p.164) compromise his wife's health and her ability to care for their children, ages 4 and 6, while he supports the family through his job as a telephone repairman. She is 3 weeks pregnant when the couple meets with the obstetrician to discuss their options regarding the situation.

2. Carol Day is a 14‐year‐old whose parents work in the local factory. She and her 16‐year‐old brother both attend junior high school and spend much of their free time with their cousins, who live nearby. Although Carol's father had been accused of battering by his former wife, the charge was never substantiated. Carol became pregnant after her 19‐year‐old cousin convinced her to have sex with him, but she did not mention the incident to anyone because she was embarrassed and ashamed. About four and a half months into the pregnancy, she visited the women's clinic on her way home from school and told the nurse she would like an abortion because she is “pretty sure” she is pregnant. Carol also asks that her family not be informed about her pregnancy or her request for an abortion.

3. Eve Flynn is a pregnant, sexually active 16‐year‐old, who harbors an extremely hostile attitude toward her parents and other authority figures. She wanted to become pregnant because she thought that having a child would allow her to leave her parents' home and be “on her own.” On learning of her pregnancy, her parents try to convince her to have an abortion.

4. Gail Hoy is a 28‐year‐old business executive who discovered she was pregnant despite her insistence that her partner use a condom. Because her periods tend to be irregular, Gail did not suspect the pregnancy until she was already in her second trimester. Her main reason for considering abortion is that motherhood would interfere with her lifestyle and with advancement in her profession. She says she doesn't particularly like children, never planned on having any, and doubts that she would be a “good mother” if she went forward with the pregnancy.

5. Jill Katz and her husband were overjoyed to learn of Jill's pregnancy. When her physician took her family history, she mentioned that her 21‐year‐old sister had had an infant with trisomy 21, who later died from a cardiac problem. Because her sister was apparently a carrier for the chromosomal translocation that causes Down syndrome, Jill is advised to undergo a test to determine if she is also a carrier. If so, she has a 15 percent chance of having a child with trisomy 21. The couple feel insecure about their ability to raise a child with Down syndrome and ambivalent on the issue of abortion.8

Empirical considerations

Crucial variables in the above cases are whether the pregnancy was begun voluntarily, the duration of gestation, the method of abortion, and the health status of the pregnant woman and potential child. By far, the majority of abortions are performed early in gestation through dilatation and curettage (D&C) of the uterus and vacuum aspiration of the embryo or fetus. Early abortions may also be performed through administration of drugs such as RU‐486 (mifepristone).9 Regardless of whether moral status is imputed to the fetus, late abortions of mature, economically (p.165) able, healthy women with healthy fetuses are more troubling than early abortions by single, poor adolescents for whom pregnancy poses a threat and whose capacity or resources for parenting are apparently lacking. Many people who generally oppose abortion make an exception for situations in which the pregnancy was initiated by rape or incest or when the woman's life or health is threatened by continuation of pregnancy. In the United States, the health of the woman always provides legal grounds for abortion.

Abortion for fetal anomalies tends to be more costly, as well as physically and psychologically more burdensome for women, than abortion for other reasons. The physical risk is greater because the diagnosis and termination usually occur during the second trimester. The psychological risk is greater because the abortion usually occurs in a wanted pregnancy, accentuating the fact that the procedure involves rejection of a particular potential child rather than rejection of the pregnancy itself. In response to the woman's expectation, methods may be chosen to ensure fetal demise or reduce pain in a possibly sentient fetus; because of their directness, these methods are emotionally difficult for some practitioners who do not oppose abortion on moral grounds.10

Depending on the duration of gestation and the condition of the woman or fetus, some methods of abortion are medically contraindicated. Different methods also have different impact on clinicians and patients. When performed by an experienced practitioner, dilatation and evacuation (D&E) is the safest and most common method of second‐trimester abortion.11 It involves dilatation of the cervix to allow suction curettage and manual evacuation of the fetus and placenta. Because the woman is anesthetized, she does not observe the dismemberment that removal of the fetus entails. Instillation methods involve induction of labor and delivery of a fetus considered nonviable; the agent used for the induction may or may not be toxic to the fetus (e.g., prostin vs. saline or urea). Nurses rather than doctors usually face the unpleasant task of disposing of fetal remains. Rare cases of survival after abortion performed through instillation have been reported.12

Occasionally, hysterotomy is performed for medical reasons (e.g., if instillation is unsuccessful). This is the most invasive and risky method of abortion for the woman; concomitantly, it increases the possibility of survival for the fetus. An abortus that shows signs of life is legally a newborn that clinicians are bound to treat as such. The living survivor of a legal abortion must therefore be treated as aggressively as any infant.13 Through ultrasound‐guided injection of potassium chloride (KCl) into the fetal heart prior to instillation or hysterotomy, a clinician may ensure fetal demise and confirm prenatal diagnosis through examination of an intact abortus. If D&E is performed, the abortion may be preceded by KCl injection to ensure that the fetus does not experience pain during the extraction. Intact dilatation and extraction (D&X), which its critics call partial birth abortion, is rarely performed and highly controversial.14 Although some practitioners believe D&X is never necessary for health‐related reasons, many oppose efforts to declare it illegal.15

As discussed in chapter 8, pregnancy in patients younger than 15 years of age, such as Carol Day, is more hazardous than pregnancy in older adolescents.16 At 4.5 months gestation, however, abortion carries greater medical risks and discomfort than an early abortion. The psychological and social risks of having a child at so (p.166) early an age, especially one conceived in such circumstances, are probably greater than the medical risks of an abortion to Carol. Social supports for abortion decisions are especially likely when the pregnancy is induced by rape or incest.

Legally, Carol's 19‐year‐old cousin is guilty of “statutory rape” because he had sex with a minor. Clinicians have a legal obligation to report such cases. As for the fetus, the obstetric risks to Carol heighten risks of prematurity and complications of delivery, but the potential child's risk of inheriting a genetic (recessive) disease because of first‐cousin parentage is low (less than 1 percent).17 Even if medical and social risks to the potential child were great, termination of the fetus is not convincingly defensible on grounds of its own interests.

The hazards of pregnancy for women with diseases such as diabetes, asthma, epilepsy, hypertension, and cystic fibrosis are supported by research studies. Data are lacking, however, with regard to comparable risks of pregnancy for women with MS, such as Ann Brown. MS affects the central nervous system through destruction of the myelin sheath that coats nerve fibers, slowing transmission of electrical impulses and impairing nerve conduction. Its symptoms appear sporadically, mainly in people between 20 and 40 years of age, but the disease is not associated with any known genetic predisposition. It is possible, therefore, that Ann's symptoms may worsen even if she terminates her current pregnancy. If she decides to go to term, however, weakness caused by her underlying disease may prevent adequate pushing, necessitating use of forceps or suction assistance during delivery. In other words, childbirth is likely to be more difficult for her than it would be if she did not have MS.

Two of the preceding cases involve contraceptive failure. Ann Brown is apparently among the 12 percent of women who become pregnant over the course of a year of sexual intercourse despite regular use of a diaphragm. Gail Hoy is apparently among the 14 percent who become pregnant despite their partner's use of a condom, which they may well have chosen as a means of avoiding infection as well as pregnancy through their partners.18 But none of the usual methods of contraception is an absolute safeguard against pregnancy, and abstinence is the only certain safeguard against sexually transmitted diseases.19 Presumably, Ann and Gail were both aware of the risk of contraceptive failure. For some women, however, lack of education and the unavailability of, or inability to pay for, contraception are deterrents to its use. Although most insurance plans cover maternity care, many plans do not cover contraception. Arguments for better coverage have mounted since insurance plans began to cover use of viagra for men. The verity of justice supports these arguments as a matter of gender justice.

Theoretical considerations

Abortion is clinically defined as spontaneous or elective termination of a nonviable pregnancy.20 In popular and legal usage, the term commonly applies only to deliberate termination of the developing organism in vivo, which obviously ends the woman's pregnancy. The preceding cases illustrate this usage. But abortion is also definable as termination of an embryo in vitro, when conception and pregnancy (p.167) have not yet taken place. This is the definition employed by those who impute personhood to the embryo from fertilization onward and condemn abortion as applicable to the destruction of embryonic life regardless of whether conception and pregnancy have occurred. Conception refers to the beginning of a pregnancy within a woman's body, when the embryo is implanted within the uterus, days after fertilization has occurred either in vitro or in vivo.

Whether or not abortion is legal, the end point or intended goal of the woman undergoing termination of a nonviable fetus is morally relevant. In general, a good end or intention may excuse or reduce culpability for an untoward action, whereas a bad intention may make a good act morally blameworthy. Spontaneous abortion is morally neutral because there is no intention of terminating the life of the embryo or fetus. From the standpoint of those who impute full moral status to the fetus, elective abortions are always wrong. Nonetheless, procedures that result in destruction of the embryo but are intended to save a woman's life (e.g., treatment of an ectopic pregnancy) may be acceptable because they do not directly end the embryo's potential for development. The rationale for permissibility in these cases is the rule of double effect, which distinguishes between what is foreseen and what is intended.21 Only the good end of maternal health is intended; fetal loss or death is an unintended but foreseen consequence of the intervention.

From the standpoint of those who hold maximalist or intermediate positions about moral status, elective abortions may be more or less moral depending on the intentions associated with them. Preservation of maternal health is generally, but not always, more compelling than nonmedical reasons. In case 1, for example, the patient's apparent intention, if she chooses abortion, is to support lives already born, those of her two young children, her husband's, and her own. In contrast, the intention of the patient in case 4 is to facilitate professional advancement, a legitimate but, from an egalitarian perspective, less compelling rationale than that of Ann Brown. Gail Hoy's doubt that she would be a “good mother” shows concern about the welfare of her potential child. This concern could be assuaged by exercising her option to continue her pregnancy, give birth, and relinquish her newborn to a woman or couple whose desire and capacity for good parenting she did not doubt. By giving birth, however, Gail would still be a biological mother.

The adoption option is also available in the other cases. However, most women in such circumstances choose abortion rather than relinquishment through adoption.22 Their standpoint apparently involves not only a desire to end their pregnancy but also a desire to avoid motherhood through the birth or a child who, while biologically related to them, would be raised by another or others. The abortion option provides them with an opportunity to accomplish both goals. Whereas adoption is not only morally defensible but commendable in some circumstances, moral justification for abortion crucially depends on the controversial premise that the fetus lacks moral status or sufficient moral status to override the woman's autonomy or welfare.

Intentionality is ethically and legally relevant to decisions in bioethics, not only for patients but also for practitioners and surrogate decision makers whose standpoints are different from one another's. Clinicians who perform elective abortions (p.168) usually intend to respect the pregnant woman's autonomy and practice beneficence or nonmaleficence toward her. Occasionally, however, these verities are incompatible. In case 3, for example, the physician may agree with Eve Flynn's parents that abortion is best for her, despite her desire to continue the pregnancy.

Some physicians attempt to bypass the moral complexity of abortion and remain morally neutral by simply doing what the competent, informed patient requests, without judging the morality of her decision. The moral position they thus affirm, that respect for the patient's autonomy is paramount (maxim 2), is consistent with the informative or instrumentalist model discussed in chapter 2. But moral neutrality is unachievable by anyone who facilitates or impedes another's moral decision. A physician who performs or refuses to perform an abortion is therefore responsible for what she does or doesn't do, regardless of the woman's decision or rationale.

Cases 2 and 3 illustrate the questionable capacity of adolescents to consent to medical procedure for themselves. As discussed in chapter 8, parental consent is usually a legal requirement for treatment of minors, but contraception, drug treatment, and abortion are available to them without parental consent in many states. Because adolescents are prevalently recognized as having at least some degree of autonomy or competence for consent to their own treatment, respect for autonomy as well as beneficence is morally applicable to these exceptions. In case 2, nonmaleficence is applicable also because of the risks of late abortion and of pregnancy and childbirth at age 14. Further, the fact that pregnancy was induced by statutory rape not only has legal implications for practitioners; it also entails moral obligations to address the possibility of ongoing abuse. The clinician needs to weigh burdens and benefits to the patient, both medical and psychological, while also attempting to recognize and respect her developing capacity for autonomy in complex family circumstances.

Weighing the potential burdens and benefits involves concerns about confidentiality, which Carol Day has asked the nurse to practice by not informing her family of her pregnancy or abortion. Both legally and morally, confidentiality may be overridden on grounds of protection of others or, arguably, because disclosure to specific individuals may expand the patient's options. The ethical question faced by the practitioner is how to honor confidentiality while addressing the risk of possible harms to a minor. If the only way to protect her from these requires disclosure of confidential information to her family, maxims 1 and 4 support disclosure. Clinicians who are morally opposed to abortion may disclose the information on grounds of maxim 3, hoping that parental notification would serve as a deterrent to abortion. As in case 3, however, parents are not always opposed to abortions for their minor daughters; in fact, they sometimes advocate abortions that their daughters do not wish to undergo.23

Case 3 also illustrates the fact that decisions to become pregnant or to continue a pregnancy may be motivated by self‐interest rather than affirmation of another's life. Because people's motives are often mixed, it is entirely possible that Eve Flynn is credibly committed to and capable of good parenting of the child she wants to have, even while undertaking her pregnancy as a means of achieving greater independence. Legally and morally, clinicians should give priority to her autonomy (p.169) and welfare, and, while informing her as fully as possible of her options, ensure that her parents' efforts to persuade her to have an abortion are not coercive. Even for those who are maximalists regarding moral status, support for Eve's autonomy in this case is probably more compelling than support for her parents' decision on grounds of maxim 1: the interests of the patient count most. From the standpoint of those who are minimalists, Eve's decision is supportable solely on grounds of its consistency with their starting point. And from the standpoint of those who attribute partial moral status to the fetus, support for her wishes is demanded not only on grounds of respect for her autonomy but also on grounds of beneficence or nonmaleficence toward the potential child.

Case 5 involves a different rationale for abortion than the other cases because here the procedure is not intended primarily or only to end the pregnancy or avoid having a child, but to avoid having a particular child, one with characteristics that the woman or couple want to prevent in their offspring. Jill Katz was apparently happy about being pregnant until she learned that her fetus may have a 15 percent chance of Down syndrome. If her carrier test is negative, she and her husband will probably resume their positive attitude about this pregnancy. If she is a carrier, though, she will probably have her fetus tested for trisomy 21 and face the option of abortion if the result is positive. The couple's insecurity about their ability to raise an impaired child is an understandable and nondiscriminatory rationale for abortion. From an egalitarian perspective, however, this factor alone doesn't justify abortion if the impaired fetus has the same moral status as an unimpaired fetus or child.

With some prenatally diagnosed fetal conditions, termination in late pregnancy may be defended on grounds of beneficence or nonmaleficence toward the potential child. Direct termination in these cases may be considered “fetal euthanasia.” In light of palliative possibilities, this argument is weak. Even if no moral status is attributed to the fetus, the possibility that the nervous system has developed sufficiently for the fetus to experience pain through a specific abortion procedure is morally relevant. If this possibility carries a moral onus applicable to fetuses destined to be aborted, intercardiac KCl injection prior to D&E is defensible as analogous to active euthanasia toward a sentient animal that is dying an otherwise painful death. Admittedly, this rationale is at odds with the legal prohibition of active euthanasia toward born human beings.

Applying the verities to the variables delineated for each of the five cases in this section, the strongest cases for abortion are the first two and the weakest case is the fourth. Respect for patient autonomy could be adequate grounds for abortion in all of the cases except the third, but concerns about beneficence and nonmaleficence strengthen the argument for acceding to the requests of Ann Brown and Carol Day. Although these concerns are present also for Jill Katz, continuation of pregnancy does not entail physical risks for her to the degree that the other cases do, nor do the other cases entail a decision to terminate a particular fetus because of its specific characteristics. An egalitarian perspective attributes the same value to human fetuses, regardless of their characteristics.

Termination of pregnancy before fetal viability has long been a controversial and volatile ethical issue, despite the relative clarity of its legality in a broad range of instances. Practitioners are as likely as pregnant women and the public to vary (p.170) widely in their views on the morality of these abortions. Some support a woman's decision to terminate her pregnancy at any point during gestation for any reason because their starting point is that the embryo or fetus has no moral status. As long as they give priority to the pregnant woman's interests, particularly through support of her autonomous decision, they act consistently with this starting point. For those who impute moral status to the developing organism, however, the legal permissibility of abortion does not confer moral legitimacy for performing, facilitating, or undergoing it. Practitioners who reason from this starting point often refer women who request abortions to those who are willing to perform the procedure. However, the referral itself is morally problematic because it is inconsistent with their ongoing opposition to abortion, comparable to telling a would‐be murderer where he might find his intended victim.

An egalitarian perspective alone cannot adjudicate between opposition to and support for termination of a human embryo or fetus. Its applicability depends crucially on whether the developing organism has some moral status or value with which to compare values that are relevant to the pregnant woman, whose moral status is clearly established. Moreover, respect for autonomy applies not only to patients but also to practitioners, and no practitioner may morally be compelled to violate her own moral principles by performing a procedure that is not medically necessary. Respect for the autonomy of the pregnant patient does not demand this.

Because elective abortions require the involvement of medical professionals,24 the difference between the negative right to refuse and the positive right to obtain them is also relevant. Legally as well as morally, the former right is compelling, as long as it is exercised by a fully competent and informed person on her own behalf; interventions in these cases, regardless of whether they are medically appropriate and as long as they do not harm others, are considered assaults. In contrast, the right to obtain a medical intervention cannot be defended on grounds that others are bound to provide it unless the procedure is necessary for the patient's health. Only a small number of abortions fall into this category.

Except for the fact that an embryo or fetus is involved, the cases in this section may seem comparable to requests for other medical procedures that are sought and obtained for nonmedical reasons. From an egalitarian perspective, some nonmedical reasons, such as those of Ann Brown, are more morally compelling than others. However, an important difference between these cases and others based on nonmedical reasons is that termination of pregnancy is only undergone or forgone by women, whose standpoint with regard to policies about its availability thus deserves privileged status vis‐à‐vis that of men. The extent to which the woman's standpoint is privileged vis‐à‐vis that of the embryo or fetus depends on one's starting point regarding moral status.

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As already mentioned, sterilization is less morally problematic and controversial than abortion, and contraception is hardly morally problematic for most people. However, women are generally more affected than men by decisions and policies about any of these means of preventing pregnancy and birth. This need not be the case for sterilization and contraception because both can be undergone or practiced (p.171) by men instead of women, and a more egalitarian relationship between the sexes might prevail if sufficient numbers of them did so. A society committed to gender justice would encourage couples to choose methods that are least invasive for either partner. A society committed to justice for all of us would, in addition, reduce the number of instances in which some women desire and obtain abortions by supporting them and those they might otherwise care for more equitably. Regardless of one's starting point about the moral status of human embryos or fetuses, an egalitarian perspective clearly calls for that support.

Notes:

(1.)  Jonathan Imber, Abortion and the Private Practice of Medicine (New Haven, Conn.: Yale University Press, 1986).

(2.)  Moreover, the failure rate of male sterilization or vasectomy (1 in 700) is considerably lower than that of female sterilization (1 in 200).

(3.)  The “morning after pill,” also called “emergency contraception,” is used much less often than other methods, mainly as a back‐up to other methods. To some, this is an abortive agent rather than a contraceptive agent because it prevents implantation, not fertilization. Intrauterine devices have been called abortifacients for the same reason.

(4.)  “Female Sterilization,” Better Health Channel (Apr. 2001). Accessed 4/9/06 at www.betterhealth.vic.gov.au/bhcv2/bhcarticles.nsf/pages/Female_sterilisation?OpenDocument.

(5.)  “Facts about Birth Control,” Planned Parenthood Association of America (2004). Accessed 9/16/05 at http://www.plannedparenthood.org/pp2/portal/files/portal/medicalinfo/birthcontrol/pub‐birth‐control‐06.xml.

(6.)  “Cognitive impairment” has a broader meaning than “mental retardation” because it also includes memory loss, dementia, and other impediments to cognitive function. Mental retardation simply refers to the fact that the pace of learning in an individual is slower than that of those who are not similarly impaired. Because the term “retard” is sometimes used pejoratively, however, I prefer to use “cognitive impairment” instead.

(7.)  As used here, “disability” is intended to convey recognition that the factors that tend to disable some members of society are constructed by members of society who do not have the specific impairments that other members have. “Impairment” refers to the condition of a person; “disability” to social impediments. All of us are impaired to the extent that our knowledge is inevitably limited.

(8.)  The cases and discussion in this section are based on Mary Briody Mahowald, Women and Children in Health Care: An Unequal Majority (New York: Oxford University Press, 1993) pp. 60–61, 65–72.

(9.)  P. G. Stubblefield, S. Carr‐Ellis, and L. Borgatta, “Methods for Induced Abortion,” Obstetrics and Gynecology 104, no. 1 (July 2004): 1174–85. In the United States, nine out of ten abortions occur during the first 12 weeks of gestation. For women's views on methods of early abortions, see K. Holmgren, “Women's Evaluation of Three Early Abortion Methods,” Acta Obstetricia et Gynecologica Scandinavica 71, no. 8 (1992): 616–23.

(10.)  Methods that ensure fetal demise include injection of potassium chloride into the fetal heart and dilatation and evacuation of a fetus after suction curettage; the latter method usually requires dismemberment of the fetus.

(11.)  W. Cates Jr., K. F. Schulz, D. A. Grimes et al., “Dilatation and Evacuation Procedures and Second‐Trimester Abortions,” Journal of the American Medical Association 248, no. 5 (1982): 559–63.

(12.)  I was involved as an ethics consultant in two cases involving survival of abortion performed through instillation during my years at Case Western University, from 1982 through 1990. After considerable time in the intensive care nursery, both infants went home with their parents.

(13.)  U.S. Department of Health and Human Services, “Child Abuse and Neglect Prevention and Treatment Program; Final Rule,” Federal Register 50, Jan. 11, 1985, pp. 1487–92.

(14.)  J. Epner, H. S. Jonas, and D. L. Seckinger, “Late‐term Abortion,” Journal of the American Medical Association 280, no. 8 (1998): 124–29.

(15.)  J. Preston, “Appeals Court Voids Ban on ‘Partial Birth’ Abortions,” New York Times July 9, 2005, p. A11.

(16.)  Robert Blum, “Contemporary Threats to Adolescent Health in the United States,” Journal of the American Medical Association 257, no. 24 (1987): 3392.

(17.)  F. C. Fraser and C. J. Biddle, “Estimating the Risks for Offspring of First‐Cousin Mating,” American Journal of Human Genetics 5 (1976): 522–26.

(18.)  H. Fu, J. E. Darroch, T. Haas, and N. Ranjit, “Contraceptive Failure Rates: New Estimates from the 1995 National Survey of Family Growth,” Family Planning Perspectives 31, no. 2 (1999): 56–63.

(19.)  Some methods prevent pregnancy by preventing implantation in the uterus; this is not equivalent to prevention of fertilization, which can occur in vitro or in vivo. To be absolutely preventive of sexually transmitted diseases, there must be abstinence not only from sexual intercourse but also from any type of intimate contact between the sexes.

(20.)  See, for example, Williams' Obstetrics, 20th ed., in which abortion is defined as “termination of pregnancy by any means before the fetus is sufficiently developed to survive” (Stamford, Conn.: Appleton and Lange, 1997), p. 582; Stedman's Medical Dictionary, 26th ed., which defines it as “giving birth to an embryo or fetus prior to the stage of viability” (Baltimore: Williams and Wilkins, 1995), p. 4; and Dorland's Illustrated Medical Dictionary, 28th ed., which defines it as “premature expulsion from the uterus of the products of conception” (Philadelphia: W. B. Saunders, 1994), p. 4.

(21.)  Cf. Tom Beauchamp and James Childress, Principles of Biomedical Ethics, 5th ed. (New York: Oxford University Press, 2001), pp. 128–32.

(22.)  Cf. Rayna Rapp, Testing Women, Testing the Fetus (New York: Routledge, 2000).

(23.)  For a case illustrating this, see Mary B. Mahowald, “When a Mentally Ill Woman Refuses Abortion,” Hastings Center Report 15 (1985): 22–23.

(24.)  Although RU‐486 is a drug that may be taken by women to terminate their pregnancies, its safe and effective use requires medical involvement.