Proposition 115 deserves a nuanced analysis.
In 2007 a Colorado ballot initiative called for defining personhood as beginning at conception. This would have criminalized all abortions for any reason, at any stage. This would have rendered it illegal to follow Jewish law (Halachah), which, in very rare instances, allows an abortion, and in still rarer instances, mandates an abortion. We opposed the 2007 initiative. It was roundly defeated.
In 2020 there is another abortion matter on the Colorado ballot, Proposition 115. Its provisions and rationale are very different from the 2007 initiative. Those who support abortion at any stage of pregnancy will oppose Proposition 115. For those who believe that the final, deciding factor in any abortion is the point of view of the pregnant woman, there is no merit in Proposition 115 and it should be defeated. Not that all opposition to restrictions on abortion is monochromatic. Some in the pro-choice camp object to the use of abortion as a form of birth control.
We analyze Proposition 115 differently. It is not a black-and-white bill. Nor do we believe it is an extreme bill in light of the prevalent practice around the country. Colorado is one of only seven states that allows abortion at any stage of pregnancy. If passed, Proposition 115 would moderate that.
The first critical difference between the 2020 proposition and the 2007 initiative is this: The 2020 proposition would ban abortions after 22 weeks, not from conception. The 22-week mark was chosen because it is at this stage of pregnancy that a fetus, with appropriate neonatal care, can typically survive outside the womb.
Of course, there is no guarantee that any fetus can survive, even after nine months in the womb, but due to remarkable advances in medical science, a fetus can now typically survive outside the womb at 22 weeks. Here too there is no guarantee that neonatology will always yield an entirely favorable outcome; babies born very early can be left with deficits. But fundamentally, at 22 weeks, we have here a human being. Is there a justification to abort?
Justice Harry Blackmun, one of the original justices who ruled on Roe v. Wade permitting abortion throughout the land, wrote that were it established that a fetus enjoyed “personhood,” then abortion would have to be forbidden. Without using Blackmun’s language, this is essentially what Proposition 115 argues. There comes a point in a stage of pregnancy when the argument as to whether a “fetus” is equivalent to a “person” disappears.
The second critical difference between the 2020 proposition and the 2007 initiative is a critical tautology: If Proposition 115 bans abortion after 22 weeks, it allows abortion before 22 weeks for any reason: the health of the mother, the physical condition of the fetus, the sex of the fetus, rape, incest, or any other reason, none of which need be disclosed to anyone. Before 22 weeks, privacy is absolute. Tests are available before, and in fact are typically done before, 22 weeks to determine the physical condition of the fetus.
If a certain physical condition means that the pregnant woman does not want to carry the baby to term, whatever the physical condition may be, the law will not prevent her from aborting before 22 weeks of gestation.
Not in every circumstance is a problematic physical condition of a fetus known before 22 weeks of pregnancy. As to what precise percentage of pregnancies fall under this category, we are skeptical of ascertaining a dispassionate, non-politicized answer. We have read that the pro-choice research group, the Guttmacher Institute, says that about 1% of abortions occur after 21 weeks. What percentage of those are due to a previously unknown problematic condition in the fetus, we do not know. However small the percentage is, it no doubt occurs. How, then, would Proposition 115 serve such a pregnant woman? It would not. And if it would not, then what justification could there for Proposition 115?
Some would argue that all abortions in all circumstances at all stages are wrong. We would offer a different view, since Jewish law allows or mandates abortion to save the life of the mother at any stage of pregnancy, which Proposition 115 accommodates. As to Proposition 115’s non-accommodation of abortion after 22 weeks for other reasons, we would say, in ascending order of importance:
First, no law can take into account every circumstance. If a law needed to take into account every circumstance before it could become a law, there would never be any law or any society governed by law. By definition, every law is, at least to an extent, general. It is an attempt to regulate society. A law can never fairly take into account every individual circumstance and also regulate society. On the other hand, a law, to retain its legitimacy and credibility, must take into account as many circumstances as feasible. With regard to any given law’s general fairness and legitimacy, people of goodwill will differ. We believe that Proposition 115 passes muster on this criterion. In principle, forty-three other states agree, though they ban abortion at different stages.
This is not to deny that for most women, abortion at any stage is wrenching, and that all manner of possibilities, such as carrying to full term a baby that will likely survive only a few hours, or a longer but limited time, or that will be burdened with a major disability, is an excruciating prospect.
On the other side, we also acknowledge that there are parents of children with fundamental disabilities who are proud of their children and, indeed, say that these children enhance their lives.
Given all the stakes, including the sometimes competing stakes, our primary consideration on Proposition 115 comes down to this: Given that Proposition 115 allows abortions for any reason before 22 weeks, given that a fetus can survive outside the womb at 22 weeks, and given that the percentage of cases not covered by the 22-week limit is, according to the Guttmacher Institute, less than 1%, then the status of the very great majority of fetuses at 22 weeks should take precedence. At a certain point, life must be the predominating criterion. “Choose life,” says the Torah.
That said, there is one aspect of this proposition which is problematic not only from the position of Jewish law, but would also seem to leave it open to legal challenge. Proposition 115 allows abortion at any stage of pregnancy if an abortion “is immediately required to save the life of the pregnant woman when her life is physically threatened” —“but not solely by a psychological or emotional condition.” The basis for legal challenge that we see is that it is not always cut-and-dried where a “psychological” condition ends and a “physical condition” begins, and vice-versa. Under this law, we see the possibility of bitter legal battles over a post-22 week demand for an abortion due to a serious psychological condition that is said to threaten a womanlife.
We work on the assumption that all of us are “pro-life” once the baby is born. The question at hand is what is the “life” status of a fetus before it is born. If it can survive outside the womb, then we believe that, on balance, the assumption of “life” should kick in. If it does not, then sooner or later the argument will be made that right after an unwanted baby is born, it too may be dispatched. Shockingly, a few already make this argument. In discussing abortion, and in voting on abortion laws, the slippery slope factor cannot be avoided.
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