Martina Nicholson, MD, FACOG, retired
Finding Balance Between the Law and the ethical concerns about Abortion 2022
by Martina Nicholson, MD
I am a retired Ob-Gyn, and a Catholic. I majored in philosophy in college, and I have always had an intense interest in ethics. I was trained to believe life is sacred, but I also watched my male college friends grapple with being sent to Viet Nam, for a war we did not believe was either reasonable or just; and at that time we grappled with “The Just War” arguments given to us, for consideration in trying to get an exemption for conscientious objection. At the time, women were safe from the draft, so I did not personally have to consider being sent to fight in a war. I also joined the Peace Corps right after college, and that also informed my sense of social justice. The real limits of choices and moral distinctions for people, due to poverty and unjust governments were very obvious to me, in my travels and life learning.
Since those early years, in which I was much more grounded in theory than in the problems of real life, I have come over and over to the problems in a crisis pregnancy, and what to do about it; what would be of best help to the particular woman, in this particular time. I was often assisted in dealing with crisis in a particular woman’s pregnancy by a supportive family; but sometimes, no community of advocacy and support was available. This is the greatest heartache, and for the woman who is pregnant, the greatest need. Love should be the context for a new life. Support for the pregnancy and the emotional, spiritual and material needs of the pregnant mother must come from the people around her, the community.
We were taught in my philosophy classes, to dislike the idea of modifying an ethical opinion for a particular situation. “Situational ethics” seemed somehow wobbly and undependable. I now think this is all that matters, to find the most ethical action in a particular person’s situation, and to try to help that person carry it out. I think sometimes it is helpful to use the popular question “What would Jesus do?” We know that the only people Jesus condemned were the high priests and religious lawyers. He said “You whited sepulchers, you impose a heavy burden you yourselves will not carry.” Everything Jesus did was based on love. What he told us about the Father was all about love. He did not bully anyone. He said “Abide in me, in my love, and the Father who loves me will come and abide with you, so that our love may be complete.” Every human action he did was stretching out to do something for someone, with love. Also, this is how rabbinical Jewish tradition works— to apply principles to the personal, individual life, with all that entails.
It seems incredible to me that theology treatises did not start with questions about who you are, what family and gender you belong to, and who you love. And most of all, do you have a Higher Power, loving and gentle, giving you spiritual strength and support to help you? To be told that you are not allowed to love the person you love, or that God doesn’t want you to love that person, seems to me to be completely twisting the character of God out of all recognition from the one Jesus describes for us. It destroys the internal radar of people, who need to feel their Higher Power’s guidance and support as they take risks to grow.
Motherhood is one of the ways we are called to grow much bigger than the self we are now… and we need help.
And then there is history. In Roman times, there were many virgin-martyrs. This was not about sex, it was about the duty to the state, to have sons who would grow up to be Roman soldiers, to fight Rome’s wars. Women who refused to marry and be pregnant were considered traitors to the state, and went to their martyrdom for treason. The woman for whom I was named, St. Martina, was one of these brave virgin-martyrs of the early church, around 300 AD. They tried to burn her at the stake, but it rained. They tried to get lions to tear her apart, but the lions sat down quietly. So finally, they chopped off her head. This gives poignance to the title of virgin-martyr.
So what I now think about the right of the state to protect the unborn is complicated with the question of the right of the state to send that child after it is reared, to be a soldier for the state. Since Dorothy Day, I think there have been legitimate questions about whether ANY modern war can be considered a just war. More and more, the wars we have fought are to get oil or natural resources away from a different country. Many of our wars are to topple governments which actually were “the will of the people.” The story of Viet Nam, and the role of Ho Chi Minh after WWII is instructive. And this foreign policy twisting goes down to what we are now doing in many countries with precious metals and natural resources we covet. And possibly the instigation of nuclear war, which could quickly escalate to nuclear holocaust, if not the end of life on Earth. All for reasons which have nothing to do with self-determination as a people.
My belief is that the life in the womb is important, and that the woman who is becoming a mother is also important. She is not just a carrier, but a human being, and her natural dignity and worth do not depend on motherhood. Her talents, her desires for her own life, and the partner who helped to conceive this child also matter. God has given her life, and her life also should not be narrowly construed or devalued. The life in the womb is organic, and grows to become a child. Any limit—- any attempt to find a place that one’s ethical rule for cut-off can become categorically clear— is not possible, in this continuum, I believe. It is not that it is a pre-child one minute, and a child the next minute. God brings new human life into the world through women and pregnancy in a continuum of growth and development. So, trying to nurture and protect the process seems reasonable and important, and part of our duty to God, as much as stewardship of the earth through being good gardeners and good farmers. We have a saying in our field of obstetrics, based on data, that $1.00 in prenatal care saves $3.00 in pediatric care for premature or unhealthy babies.
Protecting the stewardship of fertility also means making it possible for women and couples to be able to use whichever means of family planning will best fit their needs. This individualizing is part of conscious use of our minds and personal and social ethics, as well as medically safe methods.
24 weeks is the currently the beginning of possibility of life outside the womb. Before that, the lungs are not developed enough to hold air and pass oxygen to the blood. Even if you try to put a tube into the infant’s airway to help it breathe, the lungs cannot fill yet. Before 24 weeks, it is technologically not yet possible to help get the lungs to fill. This may be the source of some people’s concern that a very premature baby is “gasping for air” and the doctors are not trying to help save it. The instinct to gasp for air is there, but the lungs are incompletely formed; they are more like liver tissue, than the honeycombs of lungs, with pockets for air. It is like a butterfly being torn too soon from the chrysalis, and unable to fly. There are stories of babies born below 24 weeks who make it through the months in the NICU to become capable of leaving the hospital. Most of them probably have been wrongly dated in the length of their gestation. Yes, miracles do happen, but they are very rare. Another situation is when the fetus has no kidneys, so that it will not be able to live without dialysis all its life. These fetuses often also do not have full lung capacity, and also may “gasp for air” as a reflex, even at later gestational ages, but attempting to resuscitate them is usually unsuccessful. Neonatologists are educated in fetal anomalies, and are aware, when a lethal anomaly is present, that it is not “life-enhancing” to try to give full resuscitative care. Neonatologists are also now required to give parents a realistic assessment of the chance for the premature infant at this gestational age to be able to grow up, and become a child with full capacity. The earlier the premature fetus is born, the higher the risk for lifelong disabilities, especially cognitive delays and impairments.
Because of this, most hospitals which do not have a Tertiary level NICU will send the pregnant mothers with very premature impending deliveries, to the nearest Tertiary care center, before the delivery, if possible; in order to give her the appropriate counseling, and to help the baby be born in the best center to treat extreme prematurity if it is viable.
Recently there was a poll taken that 76% of Americans would like to see abortions limited to under 12 weeks. The problem with this, medically, is that lethal anomalies may not be detected with ultrasound scanning, until 18-20 weeks. Such problems as anencephaly, or severe cardiac malformations, or absence of kidneys, may make the ongoing life of this fetus seem an unbearable burden to some mothers.
Medically, also, a mother may develop a serious medical condition which threatens her own life. Cardiac problems, severe kidney disease, or cancers are among the conditions which may make it necessary for a mother to consider termination of pregnancy. In these cases, there are Ethics Committees in hospitals, where doctors and a team of people help to discern what is the best possible answer in keeping with the beliefs and concerns of the mother. If a mother with a medical illness needs to terminate a pregnancy, her very life is at stake, and she must have the best possible medical care during and before and after this procedure. The abortion must be done by one of the most skilled surgeons. Problems with cardiac output and blood clotting disorders make the procedure even more dangerous, and if the mother does NOT have the procedure she also might die. These women need to be given the best care we can give them, and often, also to endure the heartbreak of losing a desired child is an added trauma.
If a fetus is born before the 24th week, in most places with a sophisticated NICU, the parents are given the choice of comfort care. When the preemie baby is born, the pediatric neonatologist determines clinically, whether there is potential for life-outside the womb, whether there is a chance for resuscitation to be successful. If the mother has asked to “do all possible” and there is potential for viability, in a tertiary care NICU, this help will be given. But if the fetus is insufficiently mature for the resuscitative efforts to be of any use, the parents will be counseled that comfort care is “the best thing to do.”
The baby is wrapped in warm blankets and given to the parents to hold. Most physicians believe this is the least traumatic and best way to serve families with the difficult and painful loss of a very premature infant.
We have 60 years of data that millions and millions of women and couples have been able to successfully plan families and carry these families healthily, with smaller human families being the norm. Being able to feed and clothe and house the family is a normal part of the duty and desire of parents. Choosing how many children to have, and trying to choose what an optimal time is, for when to have children, is also a reasonable and wise part of stewardship of God’s gift of fertility.
We would not want farmers to ignore the weather and the needs of their land in planting crops. We want our societies to be stable and our families to be sources of love and mutual support and care. Using scientific technology and birth control methods which have been shown to be safe, effective and helpful for couples in planning families is sensible. I have been waiting a long, long time for the reversal of the ban on contraception, by the Catholic Church, which has cruelly treated women and couples (who have been prudent and modest in their desire to raise healthy families), by saying that the Church thinks it is sinful, and implying that God doesn’t love you if you are using birth control.
For some people it is impossible to see that this is a bullying position, not one which actually allows freedom to the couple to choose what is best for them. At least in theory, the Catholic ethical position is that God has given us freedom of choice. We are to be allowed, (even encouraged!), to exercise our consciences, in living. Jesus said “I came that you might have life, and have it more abundantly.” He did not say women had to have as many children as the body can bear. He did not say that men have the right to rape women, or force women to carry more children. It is interesting that Mary his mother, only had one child. This is a model which is even more helpful now, as human population burgeons all over the planet.
So, over time we have to keep asking ourselves, what is the right answer, about abortion, and why. We are a political society and a land of multicultural diversity. We have laws which enshrine the belief that all people are equal and that we are a country based on the rule of law.
I think we have to take into consideration that ethically, in medicine, the primary priority is autonomy.
In political society, I believe the proper ethical role of the church in our country is in moral suasion, rather than forcing or bullying women to carry children.
And that leaves us with what should be legal. I believe abortion should be legal. I believe we need to protect the physician’s right, to not do abortions, and to do them, without legal sanctions, and without criminalizing either the doctor or the patient. There is no middle ground ethically, to reconcile people who think pregnancy is sacred, with people who think the right of the woman over her own body is sacrosanct. I believe we have to let women choose whether to continue a pregnancy. We can try to persuade a woman that it would be better to carry this child, and we can try to make it more bearable for her by helping her with her other corporal needs; housing, food, safety, healthcare, the means to exist as a parent, and also in dealing effectively with possibly violent or cruel people who surround her.
Our proper role is to help women grow into mothers, by supporting them emotionally and spiritually, and as concretely as possible, as they take on this task. No woman feels completely ready or capable of becoming a good parent, her self-doubt can be excruciating. And helping the women with their needs in pregnancy is the proper role of the family and community. The community becomes even more important when the family cannot meet the woman’s real needs.
If you ask “Who is the advocate for the unborn child?” it is the family, the community, the people surrounding the pregnant mother. The natural best advocate would be the father. But some men do not take the role of fathering as a sacred trust. Others are incapable. Some families cannot be supportive. So the community becomes the support for the woman in a crisis pregnancy. This is NOT the state. It is more variable, more fragile. But it is REAL, and it understands that a child will need more support and advocacy as he or she grows. For someone to insist that the federal or state government take on that role is unrealistic, I think.
The highest amount of domestic violence is aimed at vulnerable pregnant women. Many women seek abortions because of rape, or incest, or partners who are violent or addicted to substances which make their behavior cruel, life-threatening, and unpredictable. Women want to be able, when bringing a child into the world, if possible, to give the child a stable home. We should applaud this instinct in women, instead of condemning it. For some women, their own parents and family can provide that safety and home, allowing her to get on with her life as a single mother. Some women are dynamic and courageous enough to work through all the vulnerabilities of being a single mother with almost no social support. But not all women have that ability and strength.
If the society and the church community wish to be of service for women in crisis pregnancy, they will be more creative, finding ways to support pregnant women with housing and safety and medical care.
The mandate for the Christian community is TO LOVE. We love each other by providing for the needs of each other. The society at large also DOES have a stake in the healthy raising of children. We now have 20-25% of children being raised below the poverty line, often in unsafe housing and unsafe situations. This is compounded for mothers who themselves are afflicted with trauma, mental illness or addiction. And it is severely complicated with fathers who are violent, drug-addicted, or locked up in prison, and so are unable to be helpful in real time to the mothers and children. Also we have to come up with practical solutions in situations of unsafe housing, and for communities without adequate safety for children and families from ongoing violence. The USA is now considered one of the top 10 places in the world for violence against women to occur. Women and children refugees and homeless people needing shelter are even more vulnerable to violence; abuse, rape, torture, human trafficking, and death.
In the long run, I believe we will do the best we can with the difficulties of crisis pregnancies if we confine the actions of the Christian community to trying to LOVE instead of bullying women.
And in our national laws, we will do best by protecting the women’s right to pregnancy terminations.
As the science and pharmacology of Medicine evolves, new methods and more effective methods of family planning which are safe for women’s health have come and will keep coming, and we should do our utmost as a society to make these methods available for all women to use and to choose. The current most useful tool for abortions in very early pregnancy are medications which detach the placenta from the wall of the uterus, and lead to a miscarriage. By giving women and couples the right to decide what is best for their own families, we put family life on the surest footing. This also leaves up to conscience the decision which is proper to the person, and not reducible.
In the rest of the world, and before the advent of modern contraception, the only real means to solve overpopulation were war, famine and plague. But now we have medically safe and prudent ways to help families, to help make childbearing and child-rearing the best it can be, in spite of all the difficulties, risks, and uncertainties of modern life. For those who think this is not pro-life, I reply that we also allow capital punishment and killing in war, in spite of the 5th commandment, which has no sub-clauses. God knows the amount of slaughter going on in the world, and how many millions of children die of hunger, malnutrition and curable diseases due to lack of access to medical care.
What we should be striving for is TO LOVE. Jesus’ mandate, and his message was pretty clear– “this is how people will know you are mine, that you LOVE ONE ANOTHER.”