Texas and Ohio have included abortions among the nonessential surgeries and medical procedures that they are requiring to be delayed, setting off a new front in the fight over abortion rights in the middle of the coronavirus pandemic in the United States.
Both states said they were trying to preserve extremely precious protective equipment for health care workers and to make space for a potential flood of coronavirus patients.
But abortion rights activists said that abortions should be counted as essential and that people could not wait for the procedure until the pandemic was over.
On Monday, Ken Paxton, the attorney general of Texas, clarified that the postponement of surgeries and medical procedures announced by Gov. Greg Abbott over the weekend included “any type of abortion that is not medically necessary to preserve the life or health of the mother.” Failure to do so, he said, could result in penalties of up to $1,000 or 180 days of jail time.
Is abortion truly a non-essential medical procedure? Is it ethical to treat it as one? This is a perfect storm of an ethics conflict colliding with an ethical dilemma, with so many of the factors that confound ethical analysis present. For example, is the shortage of beds and the stresses on medical services really the only factors being considered by those in making the policy decisions in Texas and Ohio? Is the pandemic really a cover, in whole or in part, for other motives, like a desire to limit abortions generally for as long as possible? Is the ethical response by a pregnant woman to comply with the policy, even to the point of giving birth. There are many ethics decisions involved here.
Let’s just focus on one of them, the decision to call abortions non-essential procedures, and run it through one of the ethics decision-making systems. I’m going to use Professor Laura Nash’s 12 Questions, from her Harvard Business Review article, “Ethics without the Sermon” (1981)]
1. Have you defined the problem accurately?
In other words, “What’s going on here?”
The problem should be defined like this: The primary objective, in addition to limiting infections, is to ensure that hospitals are not overwhelmed by cases of the virus. One step necessary to ensure that is to call on the public to postpone all use of hospital staff and space except for essential procedures that are urgent and cannot be postponed.
Are abortions such procedures?
2. How would you define the problem if you stood on the other side of the fence?
I assume the “other side of the fence” in this case would mean a woman in the midst of an unwanted pregnancy, running out of time because the pregnancy will soon be in its third trimester. Then the problem might be, “How much should I be required to sacrifice for the needs of society in a health crisis?” Not necessarily, however: a pregnant woman might look at the problem exactly the same way as the policy-maker, if she is capable of keeping self-interest out of the equation.
3. How did this situation occur in the first place?
It occurred because of the unique nature of abortion, in which the procedure is a SCOTUS-determined constitutional right despite the fact that society refuses to resolve whether it involves one human life or two, and because the delay of the procedure, while it may not result in physical harm to the mother, will have another result of life altering proportions: responsibility for a child.
4. To whom and to what do you give your loyalty as a person and as a member of the organization?
The “organization” is the government and society, and the loyalty of elected state government officials must be the public and society as a whole, not merely one segment of it or one constituency.
5. What is your intention in making this decision?
It has to be, as the Ohio and Texas orders state, the sincere and responsible desire to control the pandemic and ensure that it can be treated effectively and across the state. The intention cannot be to use the pandemic as a justification to constrain the right to abortion, or “to save the lives of as many unborn as possible.”
6. How does this intention compare with the probable results?
The intention focusing entirely on the threat of the viral epidemic will involve potentially serious negative results for women seeking abortions.
7. Whom could your decision injure?
Women who choose to have an abortion will have their rights to do so limited, constrained, and in some cases, eliminated altogether for a crucial period of time, with serious negative consequences for the women.
8. Can you discuss the problem with the affected parties before you make your decision?
No. Time is of the essence, and again, the duty is to the entire society, not just the smaller contingent of pregnant women wanting an abortion.
9. Are you confident that your position will be as valid over a long period of time as it seems now?
In fact, the longer the policy goes on, the more individual damage it will do, assuming, as we must in this process, that the life of the mother is the only one the state can acknowledge However, the objective—controlling access to hospital care during a pandemic will be valid as long as the epidemic continues, or until sufficient beds and staff are available without constraining elective abortions.
10. Could you disclose without qualm your decision or action to your boss, the head of your organization, your colleagues, your family, the person you most admire, or society as a whole?
Absolutely, as long as the decision was based on a pure objective in society’s best interests. In this case, the “boss” would be the public.
11. What is the symbolic potential of your action if understood? If misunderstood?
The decisions of Texas and Ohio are ripe for court challenges. If upheld, the decisions would stand for the proposition that the right to abortion, like other rights, is sometimes subordinate to special needs of society when the safety and security of society as a whole is involved.
If the decision is misunderstood as a dishonest effort to use the pandemic as a justification for stopping abortions on moral or ethical grounds, then it will be devisive and undermine trust in the government.
12. Are there circumstances when you would allow exceptions to your stand? What are they?
The circumstance already added as an exception is a threat to the health of the mother. It would seem prudent, necessarily and ethical to ass an exception allowing an abortion to be performed when the pregnancy is about to enter the period where it will no longer be legal.
In the end, as the 12 questions show, this must be a utilitarian decision, as are almost all government policy calls. The insuperable obstacle with any such decision involving abortion is that we cannot agree on what is being balanced, and the weight of those factors that are.