Medical and Ethical Questions Concerning Abortion

ABORTION AND HEALTH

Abortion was widely practiced during the colonial period and early years of the United States but became less common between the early 1800s and 1973, when—under certain conditions—abortion was considered a criminal offense. After abortion was legally banned, women of means generally were able to find doctors willing to perform supposedly therapeutic (medically necessary) abortions allowed by law. Many poor women, however, died or developed medical complications from self-induced abortions or abortions performed by untrained persons.

Since the 1973 Supreme Court ruling on the legality of abortion in Roe v. Wade, a number of studies have been done on the physical, emotional, and psychological impact of abortion on women. In its first major study of abortion (Legalized Abortion and the Public Health, Washington, DC: National Academy Press, 1975), the Institute of Medicine concluded that "evidence suggests that legislation and practices that permit women to obtain abortions in proper medical surroundings will lead to fewer deaths and a lower rate of medical complications than [will] restrictive legislation and practices."

In 1987 President Ronald Reagan promised the various right-to-life groups that he would investigate the health effects of abortion. The president instructed Surgeon General C. Everett Koop to prepare such a report. After meetings with experts and thorough reviews of many studies for almost a year and a half, Dr. Koop refused to release a report.

In a January 1989 letter to President Reagan, Dr. Koop reported that "in spite of a diligent review on the part of many in the Public Health Service and in the private sector, the scientific studies do not provide conclusive data about the health effects of abortion on women." Dr. Koop added that the negative physical health effects possible following an abortion—infertility, a damaged cervix, premature birth, low-birth-weight babies—could also develop if the pregnancy were carried to term. In March 1989, testifying before the U.S. House of Representatives, Dr. Koop reported that, although psychological problems may result from having an abortion, the problem is "minuscule from a public health perspective."

Morbidity and Mortality

In "Safety of Abortion" (National Abortion Federation, http://www.prochoice.org/about_abortion/facts/safety_surgical_abortion.html, revised 2003), Susan Dudley declared, "Surgical abortion is one of the safest types of medical procedures. Complications from having a first trimester abortion are considerably less frequent and less serious than those associated with giving birth." (The National Abortion Federation is the professional association of abortion providers in the United States and Canada.)

However, like any other surgical procedure, surgical abortion carries risks of complications. Major complications from abortions performed before thirteen weeks of pregnancy are rare. About 88% of women who have an abortion are less than thirteen weeks pregnant according to "Induced Abortion in the United States: Facts in Brief" (Alan Guttmacher Institute, http://www.agiusa.org/pubs/fb_induced_abortion.html, May 18, 2005). Of these women, 97% do not develop complications, 2.5% have minor complications that are treatable at the doctor's office or at the abortion clinic, and less than 0.5% require hospitalization. In general, the earlier in pregnancy the abortion is performed, the less complicated and safer it is.

Besides the length of pregnancy, other factors that determine the likelihood of complications include the physician's skill and training, the use of general anesthesia, the abortion method used, and the woman's overall health. In "Safety of Abortion" Dudley noted that, "although rare, possible complications from an abortion" include the following:

• Blood clots in the uterus, which require a repeat suctioning (occur in less than 1% of cases)
• Infections, most of which are easy to identify and treat if the woman follows the postoperative instructions (occur in less than 3% of cases)
• A tear in the cervix, which may be repaired with stitches (occurs in less than 1% of cases)
• A tear in the uterine wall and/or other organs, which may heal by itself or require surgery or, rarely, hysterectomy (removal of the uterus) (occurs in less than one-half of 1% of cases)
• Missed abortion, which does not terminate the pregnancy and requires a repeat abortion (occurs in less than 1% of cases)
• Incomplete abortion, in which tissue from the pregnancy remains in the uterus and requires a repeat abortion (occurs in less than 1% of cases)
• Too much bleeding, caused by failure of the uterus to contract, which may require a blood transfusion (occurs in less than 1% of cases)

The legalization of abortion has resulted in a significant decrease in abortion-related deaths. According to Dudley's report, one death occurs for every 160,000 women who have legal abortions in the United States. These deaths usually are the result of adverse reactions to anesthesia, embolism (blood clot), infection, or uncontrollable bleeding. In 1989, following Dr. Koop's refusal to release his report and because of his admission of bias against abortion, the House Committee on Government Operations relied instead on research done by the Centers for Disease Control and Prevention (CDC) and concluded that childbirth was seven times more likely to result in the mother's death than was abortion. According to Stanley Henshaw in "Unintended Pregnancy and Abortion: A Public Health Perspective" (A Clinician's Guide to Medical and Surgical Abortion, edited by in M. Paul, et al., New York: Churchill Living-stone, 1999), the risk of death is ten times greater for a woman carrying a pregnancy to term and giving birth. Medical abortion, which must be done before nine weeks of pregnancy, also is considered safe.

Post-Abortion Stress Syndrome

Dr. Koop's investigation of the psychological effects of abortion was as inconclusive as his findings of its physical health effects. In the same letter to President Reagan, Koop observed that "the data do not support the premise that abortion does or does not cause or contribute to psychological problems." Many antiabortion groups, however, claim that for many women, having an abortion can lead to serious psychological problems, most notably "post-abortion syndrome." Some have compared this with the post-traumatic stress disorder (PTSD) suffered by many Vietnam veterans.

Following Dr. Koop's findings, an American Psychological Association (APA) expert, Dr. Nancy Adler of the University of California at San Francisco, testified before the Human Resources and Intergovernmental Relations Subcommittee of the House Committee on Government Operations. Dr. Adler reported that an APA expert panel on the psychological effects of abortion found no evidence of the so-called "post-abortion syndrome" of psychological trauma or deep depression. In fact, the APA investigation found "the predominant feelings following abortion to be relief and happiness. Some women report feelings of sadness, regret, anxiety, or guilt, but these tend to be mild." According to the Planned Parenthood Federation of America in "The Emotional Effects of Induced Abortion" (http://www.plannedparenthood.org), "most studies in the last 20 years have found abortion to be a relatively benign procedure in terms of emotional effect—except when pre-abortion emotional problems exist or when a wanted pregnancy is terminated, such as after diagnostic genetic testing."

Henry P. David and Ellie Lee report in "Abortion and Its Health Effects" (Encyclopedia of Women and Gender, vol. 1, edited by J. Worrell, San Diego, CA: Academic Press, 2001) that the period of greatest psychological stress occurs immediately before the abortion decision is made and that "legal abortion of an unwanted pregnancy in the first trimester does not pose a severe psychological hazard for the vast majority of women."

According to Nancy Felipe Russo, a leading researcher on abortion and mental health issues in the United Kingdom, "no scientific basis exists for applying a PTSD [post-traumatic stress disorder] framework to understanding women's emotional responses to a voluntarily obtained legal abortion." In "Abortion, Informed Consent, and Mental Health" (Pro-Choice Forum, http://www.prochoiceforum.org.uk/psy_coun11.asp), she and Lisa Rubin report, "Unintended pregnancy, whether resolved by an abortion or by giving birth, is a common life event that is typically perceived as stressful, sometimes profoundly so. In general, however, exercising the option of legal abortion is not 'more dangerous' to physical or mental health than giving birth—indeed many reviews of the scientific literature have established that having a legal abortion, particularly if it is in the first trimester, poses little particular threat to mental health for most women."

In "The Effects of Induced Abortion on Emotional Experiences and Relationships: A Critical Review of the Literature" (Clinical Psychology Review, vol. 23, no. 7, December 2003) Zoe Bradshaw and Pauline Slade obtained similar results. The researchers found that the pre-abortion anxiety experienced by 40% to 45% of women following the discovery of their pregnancy reduces following abortion. About 30% of women still experience emotional problems one month post-abortion, but in the long term they do no worse psychologically than women who give birth.

Others Disagree

Abortion opponents insist that they have ample anecdotal evidence of psychological stress following abortion. According to the Pro-Life Action Ministries in "What They Won't Tell You at the Abortion Clinic" (St. Paul, MN: undated):

Most often a woman will feel the consequences of her decision within days of her abortion. If they don't appear immediately, they will appear as she gets older. Emotional scars include unexplained depression, a loss of the ability to get close to others, repressed emotion, a hardening of the spirit, thwarted maternal instincts (which may lead to child abuse or neglect later in life), intense feelings of guilt and thoughts of suicide.

Dr. E. Joanne Angelo, an assistant clinical professor of psychiatry at the Tufts University School of Medicine and a psychiatrist in private practice in Boston, has participated in Project Rachel, an outreach program for women and men who have experienced abortion. In "A Special Word to Women Who Have Had an Abortion" (Washington, DC: National Conference of Catholic Bishops, 1999, http://www.usccb.org/prolife/programs/rlp/97rlpang.htm), Dr. Angelo observed:

Women who have had abortions … may turn to alcohol or drugs to get to sleep at night or to deaden the pain of their waking hours, or throw themselves into feverish activity in an attempt to forget their sorrow, guilt and shame. Deep feelings of loneliness and emptiness may lead to binge eating, alternating with purging and anorexia, or intense efforts to repair intimate relationships or develop new ones inappropriately, or to an insatiable need to replace the lost child at any cost.

Project Rachel reports that some who have obtained an abortion, especially young girls, experience negative psychological symptoms soon after the abortion. Yet, according to Project Rachel counselors, it is more common for the symptoms to occur over the course of five to twelve years after the abortion before a woman seeks help. Most studies of post-abortion syndrome do not continue long enough, they contend, often only up to two years after the abortion or less.

ETHICAL QUESTIONS RELATED TO ABORTION

Scientific advances often raise ethical questions. Ethics is a branch of philosophy concerned with evaluating human action. Some distinguish ethics, what is considered right or wrong behavior based on reason, from morals, what is considered right or wrong behavior based on social custom.

Fetal Tissue Transplantation Research

A fetus is a developing animal (in this case human) from the end of eight weeks after conception to birth. The fetus is a rich source of multipotent stem cells. These cells can give rise to a variety of specialized cells, which makes them valuable to scientists who are conducting tissue transplant research. (There is an important difference, however, between the multipotent stem cells and pluripotent stem cells. The multipotent variety can give rise to only certain types of cells; the pluripotent cells—discussed in greater detail below—can develop into any of the more than two hundred types of cells in the body.)

Fetal tissue transplantation involves taking multipotent cells and placing them in a child or adult with the intent of treating certain conditions. Scientists have found that transplanted fetal tissue is less likely to be rejected by the recipient and has the unique ability to take over the functions of some types of diseased tissues. This means that transplanted multipotent cells may be able to replace improperly functioning cells in places such as the pancreas (in order to cure diabetes) or the brain (to cure Parkinson's disease). Fetal tissue transplantation may also prove beneficial in treating neurological disorders such as Alzheimer's disease and Huntington's disease; blood disorders such as leukemia, aplastic anemia, and hemophilia; spinal cord injuries; and stroke.

The ethical controversy of fetal tissue transplantation research has arisen because the source of the fetal tissue is induced abortion. (A tissue is a group of cells that work together to perform a similar function.) Fetal research and the use of fetal tissue in research is not a recent medical development. It dates back to the 1930s and was responsible, in the mid-twentieth century, for the development of vaccines against poliomyelitis and rubella (German measles), as well as the preventive treatment of Rh incompatibility (a condition in which a mismatch between the blood of a pregnant woman and that of her fetus can harm the fetus).

The controversy about the use of aborted fetuses for medical research erupted after the 1973 Roe v. Wade decision legalizing abortion. Antiabortion groups oppose fetal research in general and fetal tissue transplantation research in particular because they believe both types of research encourage abortion. For instance, a woman could become pregnant in order to produce fetal tissue that could be transplanted to her father, who has Alzheimer's disease. Or a woman might become pregnant and then obtain an abortion in order to sell her aborted fetus to researchers. Or, to take a less sensational example, a woman might be more inclined to choose abortion because the potential scientific benefits to society might serve to offset the guilt she might feel for ending her pregnancy.

In March 1988 the U.S. Department of Health and Human Services (HHS) imposed a moratorium on the use of federal funds for fetal tissue transplantation research until an expert panel could study the ethical implications of such research. In November 1989, despite the panel's finding that the use of fetal tissue in research is acceptable public policy, Secretary Louis Sullivan of the HHS continued the moratorium. In 1992 President George H. W. Bush vetoed Congress's efforts to restore public funding of fetal tissue research, fearing "its potential for promoting and legitimizing abortion."

When President Bill Clinton took office in 1993, one of his first actions was to lift the ban on federally funded research using fetal tissue from induced abortion. That same year, the National Institutes of Health Revitalization Act (PL 103-43) legalized fetal tissue transplantation research. The law provides ethical guidelines that ensure informed consent, forbid payment for fetal tissue, and forbid altering the timing or method of abortion for the sake of research.

In Vitro Fertilization Research

In vitro fertilization (IVF) is a process by which an egg is fertilized with a sperm in laboratory glassware, and the fertilized egg is then implanted in a woman's uterus for development. The developing organism—from fertilization through eight weeks—is termed an embryo.

In 1995 congress banned the National Institutes of Health from using appropriated funds to create, destroy, discard, or subject to risk of injury or death human embryos for research purposes. Thus, human embryo research, which is legal in the United States, has been conducted by private in vitro fertilization clinics seeking to improve the efficiency of IVF and develop treatments for infertility. IVF researchers rely on embryos donated by couples who no longer need them for implantation or who have abnormal embryos.

Stem Cell Research

Embryos contain pluripotent stem cells—those with the potential to develop into any of various types of cells in the body. Pluripotent stem cells offer the possibility of a renewable source of replacement cells and tissues to treat many types of diseases, conditions, and disabilities, such as repairing spinal cord injuries, treating multiple sclerosis by "regrowing" the degenerating myelin sheath of nerve cells, and curing blindness caused by damage to the cornea. Pluripotent stem cells also could help in the development of more effective drugs to treat diseases. And lastly, scientists can use pluripotent stem cells to study the process of cell differentiation, which is important in the development of diseases such as cancer.

To develop human stem cell lines for research, cells are harvested from the inner cell mass of a week-old embryo. If these stem cells are cultured properly, they can grow and divide indefinitely. The stem cell line is a mass of cells descended from an original stem cell. It shares the original cell's genetic characteristics. Groups of cells can be separated from the cell line and distributed to researchers.

THE ABORTION DEBATE AND STEM CELL RESEARCH

Because one source of stem cells is the human embryo, and because harvesting stem cells destroys the embryo, such research has created a controversy that is similar to the abortion debate. Those opposed to stem cell research say that it destroys human life (in embryo form). Supporters say the embryos were going to be destroyed anyway, and research using the cells may be able to cure debilitating and lifelong diseases. Creating embryos intended for research only raises additional ethical questions.

In January 1999 HHS ruled that stem cell research does not fall within the congressional ban on human embryo research. According to the HHS Office of the General Counsel, because stem cells alone are not capable of developing into a human, they could not be considered embryos. Opponents to stem cell research, however, questioned whether groups of stem cells could congregate to form an entity that is, however briefly, a living organism.

Other opponents of stem cell research noted that, although government-proposed guidelines require that no public monies may be used to destroy an embryo—a necessary step to harvesting stem cells—the rules allow federal researchers to use embryo-derived stem cells created by scientists supported by private funds. They believe that this is an inconsistency in federal policy that should be stopped.

The Clinton administration created rules for funding stem cell research, but they were never implemented. In 2000 the National Institutes of Health announced that it would accept applications for stem cell projects that involved cells taken from frozen embryos developed in fertility treatments that were no longer needed. Shortly after taking office, however, President George W. Bush put that plan on hold and began a review of the policy.

On August 9, 2001, President Bush announced his decision to allow federal funding for experiments involving stem cells already derived from embryos but would not allow federal funding for research that would cause the destruction of further embryos: "Embryonic stem cell research offers both great promise and great peril, so I have decided we must proceed with great care. As a result of private research, more than 60 genetically diverse stem cell lines already exist. They were created from embryos that have already been destroyed, and they have the ability to regenerate themselves indefinitely, creating ongoing opportunities for research," he said. "This allows us to explore the promise and potential of stem cell research without crossing a fundamental moral line, by providing taxpayer funding that would sanction or encourage further destruction of human embryos" ("Remarks by the President on Stem Cell Research," The White House: President George W. Bush, http://www.whitehouse.gov). The decision does not affect private sector embryonic stem cell research.

President Bush placed certain restrictions on the research, however. The embryonic stem cell lines must have been created on or before August 9, 2001, and federal funding is allowed only for experiments involving stem cells already derived from embryos—but not for research that would cause the destruction of additional embryos. One year after President Bush's announcement, there were seventy-eight eligible lines identified in labs around the world, but only about seventeen were available to researchers and only five of them were being used, according to the American Society for Reproductive Medicine (ASRM).

At the same time that he announced his policy on embryonic stem cell research, President Bush created a President's Council on Bioethics to monitor this research, recommend guidelines and regulations, and consider the various "medical and ethical ramifications of biomedical innovation." The council includes scientists, doctors, ethicists, lawyers, and theologians.

Some opposed to embryonic stem cell research supported the idea of using stem cells extracted from human bone marrow for stem cell research. Bone marrow stem cells are those that develop into the various types of blood cells, such as red blood cells and white blood cells, repopulating the blood with these cells as they die. However, in October 2003 the journals Nature and Nature Cell Biology published two separate studies indicating that only embryonic stem cells—not bone marrow stem cells—can differentiate into new cells of various types and regenerate diseased or dead tissue other than blood. Results of this research suggested that previous studies regarding bone marrow stem cells were "overinter-preted," according to the Washington Post. Researchers for the Nature article said that the adult stem cells often fused with existing cells in the brain, liver, and heart, but there was no evidence that the cells then differentiated to become new brain, liver, or heart cells.

In 2004 Jeffrey M. Drazen published an editorial in the New England Journal of Medicine (vol. 351, no. 17, October 21, 2004), noting that "a critical point has been overlooked" in the embryonic stem cell research debate. Drazen continued, "Research using this technology is strongly supported in a number of countries, including Australia, Israel, the Czech Republic, Singapore, Korea, and the United Kingdom. Others in the world appreciate the potential of this technology. If we continue to prevent federal funds from being used to support this research in the United States, the ability of our biomedical scientists to compete with other research teams throughout the world will be undermined. No matter how hard we try, we cannot legislate an end to a process of discovery that many in this country and elsewhere in the world consider ethically justifiable. The work will go on—but outside the United States." Drazen concluded, "If we fail to bring the necessary research technology into the mainstream now, our children and grandchildren may need to leave the United States to benefit from treatments other nations are currently developing. Our research scientists must be able to adopt and use embryonic stem-cell technology as they pursue its use in the treatment of many degenerative diseases. Such research has promise, but it must be nurtured to flourish."

Genetic Testing

GENDER SELECTION

Progress in prenatal testing has raised a number of questions about the possible reasons for obtaining an abortion. Ultrasonography (also called ultrasound scanning, in which images of the fetus are made using sound waves) and amniocentesis (removal of a small amount of amniotic fluid to gain information about the fetus) may be able to determine the sex of a fetus.

In some countries of the world, such as China and India, parents often prefer boys and sometimes use abortion to prevent the birth of daughters. In the United States, women generally have not been known to have abortions for reasons of sex preference in a child.

A new technology called "sperm sorting" has become popular with couples who want to choose the sex of a child. The techniques used in sperm sorting were originally developed by the Genetics and I.V.F. Institute, a fertility clinic in Fairfax, Virginia. The original purpose of the technology for human use was to increase significantly the chances of couples, in which the mother is a carrier of 350 X-linked genetic disorders, to produce daughters. Giving the "carrier" X chromosome to a daughter produces another carrier, while giving it to a son produces a child with the affliction. However, sperm sorting is now offered for "family balancing." According to the clinic, more daughters than sons have been selected.

In response to these types of gender selection, the Ethics Committee of the American Society of Reproductive Medicine issued three reports over several years starting in 1994, concluding that "the use of medical technologies to avoid the birth of children with genetic disorders is acceptable. However, the use of these technologies for nonmedical reasons poses a more difficult question."

In 1999 the society's Ethics Committee reported, "The initiation of IVF [in vitro fertilization] with PGD [preimplantation genetic diagnosis] solely for sex selection holds even greater risk of unwarranted gender bias, social harm and the diversion of medical resources from genuine medical need. It therefore should be discouraged."

In May 2001 the committee issued its most recent report on the subject, concluding, "If … methods of preconception gender selection are found to be safe and effective, physicians should be free to offer preconception gender selection in clinical settings to couples who are seeking gender variety in their offspring if the couples (1) are fully informed of the risks of failure, (2) affirm that they will fully accept children of the opposite sex if the preconception gender selection fails, (3) are counseled about having unrealistic expectations about the behavior of children of the preferred gender, and (4) are offered the opportunity to participate in research to track and access the safety, efficacy and demographics of preconception gender selection. Practitioners offering assisted reproductive services are under no legal or ethical obligation to provide nonmedically indicated preconception methods of gender selection."

In April 2004 the Genetics and Public Policy Center of Johns Hopkins University released Reproductive Genetic Testing: What America Thinks (Washington, DC: Genetics and Public Policy Center, http://www.dnapolicy.org), which contained the results of a study conducted between October 2002 and August 2004. The study included twenty-one focus groups, sixty-two in-depth interviews, and two surveys with a combined sample size of more than six thousand people. The results revealed that most people disapprove of using preimplantation genetic diagnosis for the purpose of having a baby of a particular sex. However, the results also revealed that 61% approve of using the technology to select an embryo that would be a good match to donate cells or tissues to an ailing older sibling.

SCREENING FOR BIRTH DEFECTS AND HEREDITARY DISEASES

Prenatal testing through amniocentesis or ultrasound may reveal severe defects in the fetus, such as anencephaly (congenital absence of part or all of the brain), spina bifida (a condition in which part of the spinal cord protrudes through a gap in the backbone, leading to serious, often fatal, infections and paralysis), and Down syndrome (a genetic disorder that usually includes mental retardation).

In addition, genetic (hereditary) testing has allowed some parents to determine if the child they are carrying has the gene for certain diseases, such as Huntington's disease, Tay-Sachs syndrome, cystic fibrosis, or the genes BRCA1 and BRCA2 that increase a female's risk of breast and ovarian cancer. Women who discover that the fetuses they are carrying are seriously impaired or will develop debilitating diseases may face an agonizing decision about whether or not to have an abortion.

Some people have no problem with genetic testing if it makes possible the use of preventive therapy for a predisposed condition or an acceptance of the child who may be born with abnormalities. However, because most genetic tests are for untreatable disorders, some fear that the screening techniques may be used for eugenic (selective breeding) purposes, preventing the birth of children affected by hereditary defects.

Many people who are handicapped take issue with those who advocate abortions in cases of fetal defects and potential diseases. They argue that had late-term abortions been available to their mothers during pregnancy, they might have never had the chance for life. Many disabled people say they resent those who feel one can mandate a certain quality of life or place an economic value on it. Some observers are also wary that the genetic information obtained from prenatal testing eventually might result in preventing the birth of children with certain traits or behavioral tendencies.

Infertility Treatments

MULTIPLE BIRTHS

Many women who are unable to bear children have turned to assisted reproductive technology (ART). There are several methods of ART, including IVF, gamete intrafallopian transfer, and zygote intrafallopian transfer. IVF is the most widely used method to help women achieve pregnancy. IVF is performed by removing the woman's eggs, fertilizing them in the laboratory, and transferring the resulting embryo or embryos back into her uterus. According to the CDC in "Assisted Reproductive Technology Surveillance—United States, 2002" (Morbidity and Mortality Weekly Report, Surveillance Summaries, vol. 54, no. SS02, June 3, 2005), in 2002, 42% of ART transfer procedures resulted in a pregnancy, and 34% resulted in a live-birth delivery. In 2002 45,751 infants were born as a result of ART; 53% were born in multiple-birth deliveries.

The pregnancy success rate in ART decreases as the woman's age increases. Therefore, to increase the chances of success in older women, doctors are likely to implant more embryos. In a number of cases, many well-publicized multiple births have resulted. Table 7.1 shows the outcomes of ART using each technology.

MULTIPLE BIRTHS AND ABORTION

The birth of the McCaughey septuplets in 1997 in Iowa and the Chukwu octuplets in 1998 in Houston brought criticism from

many in the medical profession who thought the parents and their fertility doctors had acted irresponsibly. Some believed the mothers had taken a tremendous risk with their health and that of their children. Siblings in multiple births are at a high risk for prematurity, low birth weight, long-term mental and physical disabilities, and death.

Ethicists ask if it is justifiable behavior to abort some fetuses when a woman is pregnant with multiples to reduce the risks to the remaining ones. This process is termed selective reduction. Some people think that the parents of multiples should employ selective reduction. Those who are against selective reduction warn that the acceptance of abortion in cases of multiple births eventually will make it too easy in the future to "selectively reduce" other members of society, such as the elderly or the disabled.

FETAL RIGHTS

"Fetal rights" is the view that the unborn deserve the same legal protections as children. Since its 1973 decision in Roe v. Wade, the U.S. Supreme Court consistently has ruled that the woman's right to health and life outweighs the state's interest in the fetus, even after viability. In recent years, however, there have been a number of attempts to elevate the status of the fetus to that of a child.

According to Lynn M. Paltrow in "Punishing Women for Their Behavior during Pregnancy: An Approach That Undermines the Health of Women and Children" (http://www.nida.nih.gov/PDF/DARHW/467-502_Paltrow.pdf), about two hundred women in more than thirty states have been prosecuted for "fetal abuse" for taking drugs while pregnant. However, in most cases courts overturned the convictions on the grounds that a fetus could not be considered a person under criminal child abuse statutes or that the legislature did not intend for an existing criminal statute to apply to a pregnant woman and her fetus. Other courts have found such convictions to be unconstitutional violations of a woman's rights to due process and privacy. In addition, the Supreme Court has ruled that secretive testing of blood taken from a pregnant woman for other tests to which she consents is an unconstitutional search and violates patients' constitutional rights, guaranteed by the Fourth Amendment, to be free from unreasonable search and seizure.

THE FETUS AS A VICTIM OF A CRIME

Unborn Victims of Violence Act of 2004

The Unborn Victims of Violence Act of 2004 (PL 108-212) is the first federal law to recognize the fetus as a victim of a crime. The law makes it "a separate offense" to injure or cause the death of "a child, who is in utero [in the womb] during the commission of a federal crime of violence against a pregnant woman." The act applies only to federal offenses, such as crimes committed on federal properties, against certain federal officials and employees, and by members of the military. It does not apply to crimes prosecuted by the individual states. Although the bill does not seek the prosecution of "conduct relating to an abortion," abortion advocates claim that this bill sets the stage for dismantling the legal right to abortion.

The States and Unborn Victims

As of 2005, twenty states had homicide laws that recognize unborn children as victims throughout the entire prenatal period. Another twelve states had homicide laws that recognize unborn children as victims during part of their prenatal development. (See Figure 3.7 in Chapter 3.)

FETAL RIGHTS VERSUS PARENTS' RIGHTS

Opponents of fetal rights believe that if a fetus is granted the same legal rights traditionally granted to people, the law will be forced to embark on the "slippery slope" of what control the state should have over women (and men). If substance use can be prohibited, then everything a woman does that might potentially harm the fetus could be regulated. Her eating and drinking, her work, or her health habits could all be scrutinized by the courts. Could a woman who inadvertently harmed a fetus before she knew she was pregnant be held liable? Could a woman be criminally prosecuted for failing to seek prenatal care?

Results of medical research have revealed increasing evidence that a woman's behavior is not the only influence on the fetus. Men who smoke, abuse drugs (including marijuana) and alcohol, or work with toxic chemicals may be damaging their sperm, thereby causing genetically defective fetuses. Men, however, have not yet been charged with abuse of the unborn.