Bioethical Aspects of Abortion and Abortion Law

September 08, 2022

Information

September 6, 2022

I. Glenn Cohen, JD

Jennifer A. Herdt, MA, PhD

Sarah Hull, MD, MBE

Katherine Kratschel, JD

Mark R. Mercurio, MD, MA

ID8049

To CiteDCA Citation Guide

00:02Well, welcome to the kickoff
00:04session for this academic year of
00:06the Evening Ethics Seminar series
00:08for the program for about medical
00:10ethics at Yale School of Medicine.
00:12My name is Mark Mercurio.
00:13I'm the director of the program and on
00:15behalf of Sarah Hall and Jack Hughes,
00:17our associate directors, and Karen Colby,
00:19our manager, I welcome you.
00:21I'm delighted that you're here tonight.
00:23The program for Biomedical Ethics,
00:25as many of you know,
00:26but I know many of you are also knew this
00:28twice a month during the academic year,
00:30and we have evening ethics seminars.
00:32We share this space, if you will,
00:34with the with the Yale Pediatric
00:36ethics program and various one group
00:38or the other sponsors these seminars.
00:40It doesn't much matter to you.
00:42You can find the the schedule on
00:46biomedicalethics@yale.edu and of course
00:47we have a wide mailing list and we send
00:51out notifications of these things as well.
00:53And you're cordially invited to attend as
00:56many as your schedule and interest dictate.
01:00There has.
01:02It's been an amazing summer.
01:04Much has happened in the few months
01:06that we were off offline with the
01:08program for biomedical ethics.
01:10And as I think everybody
01:11on this call is aware,
01:12of course,
01:12the the jobs decision by the US
01:15Supreme Court has had tremendous
01:17impact and implication and has
01:18led to widespread discussion,
01:20including a series of seminars and
01:23webinars here at Yale University.
01:26My friend Katie Cashell over
01:28at the law school.
01:30Has been one of the major players in
01:32putting all of this together as well,
01:34and she's one of our speakers tonight.
01:36There have been sessions that focused
01:39on how this decision is going to what,
01:42what the legal nuances of this are,
01:44what the influence this is going
01:45to be on the medical profession,
01:47what this is going to do for public health.
01:49There's all sorts of different
01:50discussions that have been had tonight.
01:52Specifically,
01:53what we're going to try and
01:55focus on are the ethical,
01:57ethical issues at work as well as the
02:00ethical implications of this and so.
02:02Tonight's session on the ethics of
02:05abortion and abortion law is really.
02:08Focused as to some extent on the
02:09Dobbs decision and on Roe V Wade,
02:11which is of course been overturned,
02:13but also on the question of abortion,
02:15which has plagued ethicists for
02:17as long as ethicists have been
02:20having conversations over many,
02:22many, many years.
02:24I have.
02:25I'm very,
02:25very pleased with the Group of people
02:27we were able to assemble tonight,
02:29and I'm going to introduce them
02:30to you one at a time to let you
02:31know how the night will work.
02:33We have 4 speakers tonight.
02:35Each will speak for roughly 10 to 15 minutes.
02:38And then at about 6:00 o'clock or so,
02:42the speakers will finish and then
02:44I will moderate a Q&amp;A session
02:45and I invite you to send your
02:47questions or comments in through
02:49the Q&amp;A function on zoom.
02:50I'll then read the questions to the panelists
02:53at 6:30. I will wrap it up.
02:56So if you're wondering
02:57how long does this go on,
02:58it goes on until 6:30 and then we will stop.
03:01So I apologize, I know in advance
03:03because I know many of you won't
03:05be able to get your questions in.
03:06I expect it's going to be
03:08a great presentation.
03:09Word rate presentations followed
03:10by a very interesting discussion,
03:12so let me get right to it,
03:14please, by starting out to
03:16introduce my friend and colleague,
03:18attorney Katie Kraschel,
03:19who is the Executive director of
03:21the Salomon Center for Health Law
03:23and Policy at Yale Law School,
03:24where she also Co teaches the
03:27reproductive rights and Justice
03:29Project Clinic.
03:30Katie Scholarship focuses on the
03:32intersection of reproduction,
03:33gender, bioethics, and health policy.
03:36She holds a bachelor's degree in
03:38biochemistry from Mount Holyoke
03:40College and a law degree from
03:42Harvard Law School.
03:43She also completed Harvard Law
03:45School's Fellowship in bioethics.
03:46And Katie has been a long standing
03:48friend of the program for biomedical ethics.
03:50And we're delighted you could
03:51join us again tonight, Katie.
03:52And with that,
03:53I will turn this over to
03:55attorney Katie Kraschel.
03:58Thanks mark. It's always a pleasure
03:59to get to be part of the discussion.
04:01I'm going to go ahead
04:03and share my screen here.
04:05Hopefully this will run smoothly.
04:09Can you all see my the screen?
04:12Mark, can you see it?
04:16Yes, ma'am, we can see it.
04:17OK, great, excellent.
04:18So I will try to be brief this evening.
04:22Many of you who have been part of this
04:24series have heard from me previously
04:26and I'm really excited about the other
04:28speakers that you'll get to hear tonight.
04:30Just my sort of boring disclaimers that I
04:32provide at the beginning of the of talks,
04:35especially on this topic that I wear a
04:37lot of different hats at the law school,
04:40at the within the university and in the
04:43community and just want to clarify.
04:46That the views that I share in
04:49the presentation is my own.
04:51OK, so today I I'm my first.
04:55My charge today is sort of to set up,
04:57set the stage for the discussion
04:58and to provide a brief overview of
05:01the bioethical under underpinnings.
05:03Specifically,
05:04I'll focus on the two major precedential
05:07cases that were overturned in Dobbs,
05:10Roe V Wade and Casey.
05:12And I'll describe what many people
05:15thought the court might do in
05:17jobs that would respond to many of
05:19the criticisms of the reasoning.
05:22Or the ethical reasoning that underlie
05:25a lot of the reasoning in those cases.
05:28And then I'll touch on what the
05:30court ultimately said in Dobbs,
05:32and what it tells us about the legal
05:35terrain and the ongoing ethical
05:37debates that we're in today,
05:39and how we consider the earliest
05:41stages of life and the bodily
05:43autonomy of pregnant people.
05:47And and so at first,
05:50I start here with the Dobbs decision.
05:52This is what, as Mark mentioned,
05:54what brings us here today.
05:56And as you can see,
05:57the court held that the US
05:59Constitution does not confer
06:01a right to abortion and that
06:02it overruled Roe and Casey.
06:06So first, let's go
06:07back to 1973, when the court held
06:10that the US constitutions right to
06:12privacy found in the 9th and 14th
06:16amendments encompassed a women's
06:17right decision to end pregnancy and
06:20how that the ban on abortion at stake
06:23in that case was unconstitutional.
06:26In Roe. The court was very careful
06:28to note that the right to abortion
06:30was not absolute and that the state's
06:32interest and potential life must
06:33be balanced against the pregnant
06:35persons interest in autonomy.
06:37Equality and bodily integrity.
06:40In its most simple framing,
06:43the bioethical debate about abortion
06:44in the United States and in the
06:47Supreme Court has long been a debate
06:49of balancing these two interests
06:51the individual persons interest
06:52and deciding their fate of their
06:55body and deciding whether or not
06:57to remain pregnant against the the
07:00stated interest of the state in
07:03protecting life wherever the state
07:05would argue that interest would begin.
07:11So subsequently, in 1992,
07:14the Supreme Court decided
07:16another abortion case,
07:17Planned Parenthood V Casey,
07:19often just referred to in
07:20shorthand as Casey, that held up.
07:23It upheld rose right to abortion,
07:25as found specifically in the 14th
07:28amendment of the US Constitution,
07:30due process clause, and a doctor.
07:33And it adopted a standard relying on
07:36viability that pregnancy that states
07:38can't impose an undue burden on
07:40the right to terminate a pregnancy.
07:43Such that complete bans on
07:45abortion before viability were an
07:47unconstitutional infringement on rights
07:49articulated in the Constitution.
07:52As the court said,
07:53viability marks the earliest point
07:55at which the state's interest and
07:57fetal life is constitutionally
07:59adequate to justify a legislative
08:01ban on non therapeutic abortions.
08:05So to bring it back to where we were
08:08in that in Casey, as I mentioned,
08:10the court found that the 14th amendment
08:13of the Constitution is sort of
08:15where this right to abortion lives,
08:17specifically in the substantive
08:19due process clause,
08:19which I have highlighted here on my slide.
08:23So this is where there's been a
08:25lot of debate about whether or not
08:27the right to abortion really lives
08:29in the US Constitution and whether
08:31or not the federal government
08:33should provide this sort of floor.
08:34Against states who have enacted
08:38restrictive abortion laws.
08:44So along came came Dobbs. So the law is.
08:50And what makes Dobbs so important is
08:53that the case was squarely challenging
08:55what was held in Roe and Casey.
08:57The law at issue in Dobbs was in
09:00Mississippi is Mississippi law that
09:02bans abortion at 15 weeks viability.
09:04The gestational age at which the
09:06fetus can survive outside a person's
09:08uterus is around 23 or 24 weeks.
09:11So the Mississippi law.
09:12And it sort of unambiguously flew
09:14in the face of the standard set by
09:16row and interpreted by Casey since
09:1915 weeks as well before viability.
09:21So the issue of viability is not
09:24the in the Dobbs case was not the
09:27first time that people have many
09:29have critiqued the standard set
09:31forward in row and as interpreted by
09:34Casey anti abortion since the 1980s.
09:37Ethicists, lawyers, physicians,
09:38academics,
09:39and advocates alike to have
09:41criticized it as being insufficient
09:44or ethically incoherent demarcation,
09:47after which the state interest in fetal
09:49life is sufficiently significant to tip.
09:51Balance in favor of the state against
09:53the pregnant person's interest
09:55in bodily autonomy and equality.
09:58The Supreme Court has repeatedly
09:59opted not to list a particular
10:01time and fetal development,
10:03and instead stuck with viability
10:05as a concept.
10:06So,
10:06among other things,
10:08viability and the time and development
10:11at which a fetus is able to survive
10:14outside of a person's uterus has
10:15changed even since Roe passed.
10:18Others have noted that the idea of viability.
10:21Not tethered to any part of
10:23the Constitution and States
10:24and especially in the 19,
10:26have passed laws on claims.
10:31Or have passed laws to define
10:33viability in different ways.
10:35So many have argued for a long time
10:38that the viability line demarcation
10:40at which the state can no longer
10:43put in place total bans on abortion
10:46was an unworkable standard.
10:49So when we think about what an
10:51alternative to that may be,
10:53some states have passed laws
10:55based upon the claims that there
10:57is a moral duty to prevent,
10:59for example fetal pain and that
11:01the fetus on claims that the fetus
11:03can feel pain at pre viability
11:05stages of development such that
11:07they would argue a ban on abortion
11:09is appropriate prior to viability
11:11based upon the moral duty to
11:13prevent the fetus from feeling pain.
11:15Now peer review studies have
11:17refuted claims that.
11:18Fetal pain is really experienced
11:20at these stages,
11:22but I provide this example as a
11:25moral justification that people
11:26have provided in support of for
11:29for arguing for abortion bans
11:31earlier in gestation,
11:32as many of you have probably heard.
11:34Also we've had,
11:35we've heard heartbeat bands,
11:37which are generally abortion bands,
11:38at approximately 6 weeks Jason gestation,
11:41which notably is about two
11:43weeks after a person might know
11:44that they are pregnant.
11:49So with the viability being sort of the
11:52high viability being this hot button,
11:54very heavily criticized and.
11:59Watts written about viability as a morally
12:03justifiable and legally coherent standard.
12:05For years. There were a couple of
12:08outcomes that many scholars thought
12:09might happen in the DOPS case,
12:12so one which I intentionally crossed
12:13out because it was not what happened?
12:16Would it be to uphold Roe and get
12:18rid of the viability standard?
12:20That is, that the court could have
12:22held that the Constitution in the 14th
12:25amendment per Roe and Casey might
12:27still protect the right to abortion.
12:29But this?
12:29Specific 15 week ban that was at issue
12:31in the case doesn't impinge on that
12:34right because viability is no longer
12:35the standard that the state interest
12:37might best earlier in development,
12:39but that there was still a constitutionally
12:41protected right to abortion.
12:44We saw that Justices Gorsuch and Roberts
12:46were very asked questions suggesting that
12:49they were looking for an alternative
12:51point in development in oral arguments,
12:55and you can see here with the
12:57quote that I've included.
12:59That Justice Gorsuch seemed to
13:01be sort of asked,
13:02trying to elicit from the people arguing
13:04the case in alternative standard.
13:08And as you can see,
13:09even in his concurrence, Justice Roberts,
13:11one of the more moderate of the
13:14conservative members of the Supreme Court,
13:16said that there is a clear path to
13:19deciding this case correctly without over
13:21ruling Roe all the way down to the studs,
13:23recognize that viability line must be
13:26discarded as the majority rightly does,
13:28and leave for another day whether to
13:31reject any right to an abortion at all.
13:34Again, that's not how the case went down,
13:36but to specifically focus on the
13:39bioethical arguments underpinning a lot
13:41of US jurisprudence around abortion.
13:44For the past 50 years,
13:45there was a lot of discussion
13:48about viability.
13:49So as I mentioned,
13:51this is the hypothetical outcome.
13:52#1 didn't happen as scholars were talking
13:55about different things that could happen.
13:57Hypothetical outcome #2 was to
13:59overturn overturn rate Roe on the
14:01basis that there was no abortion
14:03right found in the Constitution.
14:05And that is in fact what happened.
14:08Again,
14:08it that the court held that the Constitution
14:10does not confer a right to abortion,
14:12and that Roe and Casey were or overruled
14:15and the authority to regulate abortion
14:16should be returned to the States
14:19and their elected representatives.
14:23So today you can find any
14:26number of maps similar to this.
14:28This happened to just be the one
14:30I took a screenshot of today,
14:32tracking the status of various abortion
14:34restrictions across the United States.
14:36As you can see,
14:37there's a pretty dark red region
14:40of the country in the South where
14:42it would be very difficult to find
14:45to get access to legal abortion.
14:47And as you can see on the map on the right,
14:50there are there's ongoing litigation
14:52that is a very dynamic situation changing
14:55everyday about which laws have been enjoyed,
14:59meaning they cannot be enforced while
15:00the court, while the case is pending
15:03and where lawsuits have been filed.
15:06Some of the bands go as far as to say
15:09that life begins at fertilization,
15:11and so that's another issue that we can
15:15I'd be happy to discuss discuss in the Q&amp;A.
15:18I know that Professor Cohen is also
15:21planning to talk a bit about the moral
15:23status of an embryo and what what the
15:25Dobbs decision means for continuing
15:28bioethical discussions about that.
15:30Again, another map of abortion restrictions.
15:32This one I believe is from the
15:34Center for Reproductive Rights and
15:36I highlight here that it another
15:37topic that I'm happy to cover if
15:40people have questions about that.
15:41In Connecticut we have passed a abortion
15:45provider protective Shield law that
15:48helps keep to the extent other states
15:50are trying to enforce their abortion
15:53restrictive laws outside of their
15:55own borders for against physicians
15:57or clinicians who are providing.
15:59Abortion care that's legal in their state.
16:02Some states have enacted these laws in
16:04order to sort of keep the states judicial
16:07infrastructure from being used to enforce.
16:11Civil claims or criminal actions
16:14against residents of their state
16:17when they might usually facilitate
16:19that between two different states.
16:24So we talked a lot.
16:25I talked a lot about sort
16:27of the viability line.
16:28And, you know, with the decision
16:31really being about the claim that
16:34there's no substantive due process
16:36right in the US Constitution that
16:39protects the right to abortion,
16:41brings us into the reality of the moral,
16:45the bioethical problems with
16:47that being the law of the land,
16:49so in denying abortion care.
16:53It is denying the bodily autonomy
16:55of people who become pregnant
16:56and don't want to be pregnant.
16:58It is an unequal situation for people
17:01who are able to get pregnant because
17:03there's nothing and among other things
17:06and have sort of formal equality sense.
17:09There's no similar restriction on people
17:12who are unable to become pregnant.
17:14And there are also health consequences,
17:17of course, for denying abortion,
17:19financial consequences,
17:20consequences and.
17:21Isn't also,
17:23of course,
17:24important to note that there
17:26is a disproportionate burden
17:27and racial justice issues that
17:29are very important and salient
17:31in denying abortion care.
17:35So on the last, my last second here,
17:38because I know I'm tied on time,
17:41I I'll just say that I would
17:43be happy also to discuss that.
17:45The response from more abortion friendly
17:49States and from the federal government,
17:53that being the SHIELD bus that I mentioned,
17:56as well as recent action from
17:58the federal government under the
18:00Emergency Emergency medical treatment
18:02and Labor Act that requires. Umm.
18:05Healthcare facilities with emergency
18:07departments that participate in federal
18:11health programs such as Medicare.
18:12So most emergency departments,
18:14if not all that they must provide
18:18care in emergency situations.
18:20So for the especially in states
18:22where there is no emergency life,
18:24life exception when the life of
18:27the pregnant person is at risk,
18:30the federal government is is doing
18:31its best at this point under the Biden
18:34administration to provide a safe.
18:35Charge so that at a minimum,
18:37when someone's life is in danger or
18:38they're in an emergency medical situation,
18:40they could access abortion care.
18:44So with that,
18:44I will turn it back over to Mark
18:47to introduce our next speaker.
18:49I will stop my share.
18:50And welcome all sorts of any questions
18:54that and I'm looking forward to the Q&amp;A.
18:57Thank you so much, Katie.
18:59That was a a beautiful job of setting the
19:01table for us for the ongoing conversation.
19:03Our next speaker is going to be I,
19:06Glenn Cohen, and Glenn is the James A
19:08Atwood and Leslie Williams professor
19:10of law at Harvard Law School,
19:12as well as the faculty director of the
19:14Peachtree Flom Center for Health Law Policy,
19:16Biotechnology and Bioethics Professor Cohen
19:18is one of the world's leading experts on
19:21the intersection of bioethics and the law,
19:24as well as health law.
19:26He has had a storied.
19:28Rear He's very involved
19:30in government work with,
19:31he's advised US Vice president
19:33on reproductive rights.
19:35He's reached out widely to the
19:37media and everything from PBS to
19:39New York Times to Mother Jones.
19:41I just learned this week that
19:42Mother Jones was a real person.
19:43I confess, I never knew that.
19:46Glenn was the youngest professor
19:48on the faculty at Harvard Law
19:50School when he was first brought
19:52to the faculty a few years back,
19:54and prior to being on the faculty there,
19:56he was clerking for the US Court of Appeals,
19:59and it was involved in cases
20:01that went as far as the Court of
20:03Appeals and the US Supreme Court.
20:05Professor Cohen has a BA in Bioethics
20:07and psychology from the University
20:09of Toronto and a JD from Harvard,
20:12and we are honored and grateful
20:13that you've joined us tonight.
20:14Glenn, take it away.
20:16The honor is all mine.
20:17Thank you so much for having me.
20:19My disclosures.
20:20So in the ones that are relevant,
20:21I currently sit on the ethics
20:24advisory boards for Lumina and Bayer.
20:26I've also served in the past
20:27on the ACOG Ethics Committee,
20:29although I don't sit on it now.
20:31So the day after the Dobbs opinion leaked,
20:33many wondered what Wright was
20:35next on the chopping block.
20:36Justice Alito's opinion,
20:37but not Justice Thomas,
20:39explicitly said that they're not revisiting
20:42today cases protecting contraception,
20:44same-sex sexual intimacy.
20:46Same sex marriage and says quote,
20:48what sharply distinguishes the
20:50abortion right from the rights
20:52recognized the cases on which Roe
20:54and Casey rely is something that
20:55both those decisions acknowledge.
20:57Abortion to strides with destroys
20:59with those decisions called
21:00potential life with the law at issue
21:02in this case regards the life of
21:04an unborn human being UN quote.
21:06And then said quote,
21:07none of the other decisions cited by
21:10Rowan Casey involved the critical
21:12moral question posed by abortion UN quote.
21:14So those of us in the
21:16bioethics community thought.
21:16Almost immediately,
21:17well, yes,
21:18that might distinguish same sex marriage,
21:20but clearly not embryo destruction,
21:22a key part of stem cell research,
21:24and how in vitro fertilization that's
21:26IVF is practiced at the moment.
21:28It also raises questions about
21:30what whether some forms of
21:32contraception would be regarded,
21:34by the court at least, as involving
21:36the destruction of an unborn life.
21:38When it comes to IVF,
21:40embryo destruction is extremely common.
21:42Data collected by the CDC reveals that
21:45virtually every IVF clinic in this country.
21:47Provides embryo cryopreservation services,
21:49which is necessary when there's
21:51more than one or two embryos
21:53produced in a single cycle.
21:55While most IVF cycles do produce
21:56more than two eggs for fertilization,
21:59the current standard of care is to
22:01implant no more than two to avoid
22:03the risk of multiple pregnancies.
22:04Those remaining embryos are often
22:06destroyed when the parties die,
22:08when they divorce,
22:09when they're going to decide they
22:11just don't want to have any more
22:13children and want to stop paying prior
22:15preservation fees about half of all IVF.
22:18Cycles in the US involve pre implantation,
22:20genetic testing and which sells our
22:22biopsy from a developing embryo to
22:23determine the health of resulting
22:25child and those test results when
22:27they reveal genetic abnormalities
22:29potentially associated with negative
22:30health outcomes are often destroyed
22:32or discarded to use the preferred
22:35term in the community.
22:36So what would happen if a state tried
22:39to restrict, directly or indirectly,
22:41IVF?
22:41In fact,
22:42Louisiana already has a statute doing so,
22:45dating all the way back to 1986,
22:47and it says,
22:48quote,
22:49a viable in vitro fertilized
22:50human ovum is a juridical person,
22:53which shall not be intentionally
22:54destroyed by any natural or other
22:56juridical person or through the
22:58actions of any other such person,
23:00UN quote.
23:00Kentucky also has a similar law,
23:02but it only applies to public institutions.
23:05There are vanishingly few cases
23:07that have ever discussed.
23:09Whether there are any constitutional
23:11rights to use IVF and in what way?
23:13Outside the US, we see models
23:15of restrictions that some states
23:17might be interested in adopting.
23:19In Italy, there's a 2004 law that
23:22prohibited creating more than
23:243 embryos in an IVF cycle and
23:27prohibited Carisoprodol preservation,
23:28the idea that all would be implanted
23:30and none would be cryopreserved.
23:32That law was ultimately struck down in 2009,
23:35but in Germany there's a prohibition
23:37on the creation of more than
23:39three embryos per IVF cycle.
23:41One could imagine a pro-life
23:43state passing a similar law.
23:45In the US, or less likely,
23:47but also possible,
23:48requiring any unused embryos to be
23:51available for quote UN quote embryo
23:53adoption by other individuals as
23:55a constitutional matter post dogs,
23:58those laws seem to me to be constitutional.
24:01That is Justice Alito's opinion,
24:03for the majority of the court
24:04seems to suggest that there is no
24:06constitutional problem with that role.
24:08Even pre Dobbs there were
24:10vanishingly few decisions suggesting
24:11such a constitutional right.
24:13The biggest constraint on
24:14this happening is politics.
24:16When we look at the polling done
24:18about abortion and about IVF,
24:20we find that many people who are anti
24:23abortion are nonetheless pro IVF.
24:25Nonetheless,
24:25there is a risk that some of
24:27these laws might come into being
24:30through more inadvertence.
24:31Adoption of personhood language
24:32aimed at abortion might sideswipe,
24:34in some instances, IVF and other processes.
24:38Because this is a bioethics colloquium,
24:40I'm going to spend the remainder of
24:41the time on a normative question.
24:43Should those who seek to prohibit
24:45abortion also seek to prohibit
24:47embryo destruction as part of IVF or
24:50other reproductive technology use?
24:52My answer is going to be a maybe.
24:54I'm a lawyer,
24:55so it's very common to answer without maybe,
24:57and it may depend a lot on your theory
24:59of embryonic or fetal personhood.
25:01At the start,
25:02let me just say I'm focused on
25:04reasons to prohibit IVF that are
25:06connected to embryo destruction.
25:08There are other reasons I think of
25:10Leon Cassas the wisdom of repugnance
25:12issues about gender roles that
25:14some conservatives might want to
25:16ban IVF or restrict IVF,
25:17but I'm focusing on embryo destruction.
25:20As I've put it elsewhere,
25:22most individuals who want to prohibit
25:24abortion subscribe to something
25:26like the two following premises,
25:28premise 1.
25:30Fetuses are persons and or get
25:32some of the rights of persons from
25:34early on in their development,
25:36particularly a right of inviability,
25:38that is the right not to be destroyed.
25:39That overwhelmingly good reason.
25:422nd premise,
25:43whatever interest the mother has
25:45in protecting her bodily integrity,
25:47protecting her reproductive autonomy,
25:49etcetera,
25:50that doesn't outweigh her fetus
25:52is right of inviolability.
25:53So I want to suggest those are the
25:55two main premises behind attempts to
25:57criminalize abortion and prohibit abortion.
26:00Now, what happens though,
26:01when replaces the word fetuses in
26:03those premise with the word early embryos?
26:05Or if you preferred fertilized eggs?
26:08Well,
26:08the exact same argument would seem
26:11to justify prohibiting.
26:12Embryo destruction,
26:13just as it does in abortion.
26:15That's just that.
26:16If you're against abortion,
26:17you have a very strong reason to be
26:19against embryo destruction as well.
26:21But I want to push further on this
26:23and look at those two premises and
26:25discuss why I think it's a maybe.
26:27Let's start with the second promise,
26:29the premise.
26:30That's the idea of bodily integrity.
26:32So many people are surprised when I tell
26:34them that the arguments are prohibiting
26:37embryo destruction are stronger,
26:39or, if you prefer,
26:40easier than the arguments
26:41for prohibiting abortion.
26:43Why you I say this because the second
26:45premise about women's autonomy,
26:47about bodily integrity,
26:48about reproductive autonomy,
26:50is less relevant,
26:51or in some accounts,
26:52irrelevant,
26:52in the case of early embryos
26:54that have not yet been implanted.
26:56While prohibiting abortion requires favoring
26:58the right of a fetus over the right not to
27:02gestate of the woman seeking an abortion,
27:04that's a bodily autonomy right.
27:06There's no controversy countervailing
27:07right to control one's body at issue,
27:10and we're talking about prohibiting
27:11embryos that have been.
27:13Produced extra corporally,
27:14that is,
27:15that our sitting outside the body
27:17that is prohibiting abortion
27:18directly restricts the right
27:20not to be a gestational parent,
27:22whereas prohibiting embryo
27:23destruction does not.
27:25One more way of putting it is to say
27:27the second premise is a very strong
27:29reason to support abortion rights,
27:31but it is weaker when it comes to
27:34opposing embryo destruction because
27:35prohibitions on embryo destruction
27:38don't involve force gestation.
27:40The most famous philosophical
27:41defense of abortion,
27:43based on the second premise,
27:44comes from Judith Jarvis Thompson's
27:46famous article a defense of abortion
27:48and her thought experiment about
27:50waking up as a human dialysis machine
27:52to the world's most famous violinist.
27:55Her argument is aimed at showing that
27:57even if you believe a fetus is a person.
28:01The abortion rights should persist.
28:03That is the exact argument that's
28:06unavailable for embryo destruction,
28:07which doesn't involve forced gestation,
28:10a kind of slavery in an indirect way.
28:13And that's not to say that a party
28:14that is aggrieved has no potential
28:16rights claim to make against a policy
28:19that prohibits embryo destruction.
28:21It's just to say that there's a
28:23harder to characterize argument,
28:24and maybe less persuasive if individuals
28:26were required to make their excess
28:29embryos available for adoption.
28:31Agreed,
28:31individuals might argue for a violation
28:33or right not to be a genetic parent.
28:35That is,
28:36the state is forcing them to allow other
28:38people to rear their genetic children.
28:40Here,
28:41the state could respond that the
28:43individuals could have avoided
28:44this dilemma by only fertilizing
28:46the embryos one or two at a time.
28:48The individual might say, well,
28:50yeah, that sounds great,
28:51but it would not be economically
28:53feasible for me.
28:54But when we get to that point
28:55in the argument,
28:56you might say we're really
28:57arguing about now is more in
28:59the style of positive liberty,
29:00a right to become a genetic parent.
29:02That is stymied by the background
29:04rule on the fate
29:05of cryopreserved embryos rather than a
29:08straightforward negative liberty restriction.
29:10If a state tried to prohibit the
29:12creation of more than three embryos
29:15per cycle and forbade cryopreservation,
29:17that's the German approach.
29:18In that case too, it seems as though
29:21the aggrieved party is really arguing
29:22about a right to be a genetic parent.
29:24Their argument might either be of
29:26this approach is too expensive,
29:28or that it will stop them from succeeding
29:30in IVF before they run out of money.
29:32That will prevent them from having a child,
29:34or the number of children they want to
29:37have via IVF before they run out of money,
29:39or in the extreme.
29:41Space before they age out of
29:43having viable eggs.
29:44It's not that these claims
29:46are not worth anything.
29:47I'm saying that they're worthy claims,
29:49just that they're much less
29:50clean and in my opinion,
29:51less forceful arguments for
29:53countervailing rights claims,
29:55the classic one regarding forced
29:57gestation in the abortion context.
29:59So that's why I think on the second premise,
30:01embryo destruction is different.
30:02What about the first premise?
30:04So once again, that first premise,
30:06I'm sorry,
30:06but a little quickly here,
30:08is that fetuses are persons and or
30:10get some of the rights of persons.
30:12From early on in their development,
30:13particularly a right of inviability.
30:16One could argue for prohibiting
30:18abortion but not prohibiting embryo
30:20destruction if one believes there
30:22are morally relevant differences
30:24as to personhood claims for early
30:26embryos as opposed to fetus.
30:28So here the argument for a restriction
30:30on embryo destruction is weaker than
30:32the one for restricting abortion.
30:34See how the two premises move together.
30:36One premise is stronger on abortion,
30:39the other premise is stronger
30:40on embryo destruction,
30:42which is quite interesting.
30:43All of this, though,
30:44is going to depend when it comes
30:46to this premise of personhood,
30:47on the criteria you want to
30:49adopt for personhood.
30:50So I'm going to say a few things now,
30:52but we can talk more about it during the Q&amp;A.
30:54What are the different views about when
30:56personhood begins in less than 5 minutes?
30:58OK,
30:59here we go.
31:00First one is a view,
31:02and it's associated with the Catholic Church,
31:03for example,
31:04that personhood begins and indeed is
31:07completed at the point of fertilization.
31:10There's lots of critiques we
31:11can discuss about this view,
31:12but here all I want to say is that.
31:14That's your view.
31:15There should be no difference
31:17between destruction of embryos
31:18and destruction of fetuses.
31:20That is,
31:20embryo destruction and abortion
31:22are equivalent.
31:23Arrival view is sometimes called
31:25the 14 days of development fee,
31:27as Cynthia Cohen puts it quote.
31:29Several developments at this
31:31point are especially significant.
31:32The first of the cells of the early
31:34embryo begin to function either
31:36as part of the embryo proper or as
31:38extra embryonic supporting materials
31:40that will be discarded later.
31:41The second is that it is
31:43irrevocably settled by this time.
31:45An embryo proper that is distinct from
31:47the mandarins that nourish it is present.
31:491/3 is that twinning can no longer occur,
31:52UN quote, since embryos
31:54used for IVF are never allowed
31:56to develop anywhere near 14 days.
31:59If this is the marker of
32:00personhood you develop and adopt,
32:02you justifiably can draw a distinction
32:04between abortion and embryo destruction.
32:06For research, though,
32:07there's been much more pressure
32:09to go beyond the 14 day mark,
32:11and this might problematize that
32:13kind of research, to be sure,
32:14even those who are in favor of the.
32:1614 day approach still believe in early
32:19embryo deserves special respect,
32:21but I think most of them would say that
32:23special respect is satisfied in the
32:24case when the embryo is made a good
32:26faith effort to use it for reproduction.
32:28But we can talk a little bit
32:30more about that during the Q&amp;A.
32:31Next, there are what are
32:33called capacity X fees.
32:35These split between views that
32:37require that an embryo attain an
32:39actual capacity X versus having
32:42the potentiality for capacity XI.
32:45Keep saying word X because
32:47there are different candidates
32:47for what you might adopt.
32:49Philosophically speaking,
32:49it could be their capacity.
32:51X is the ability to feel pain,
32:53embodied consciousness,
32:54to have awareness over the self of time,
32:57to communicate, to experience emotion,
33:00to solve new and complex problems.
33:02Some combination of these and a lot will
33:05depend on what version of that X you fill in.
33:08On some views of actual attainment,
33:10does the embryo actually have it?
33:12On some views of capacity X, there is a
33:15difference between fetuses and embryos.
33:16On the flip side,
33:18on potentiality views the contrast,
33:20and by contrast the pictures
33:22a lot less clear.
33:23As Cohen puts it,
33:24an early embryo is on this view,
33:26a potential human being.
33:27And will the normal course of
33:29events grow into an actional 1?
33:31And that's why we give it a rights claim.
33:34That puts a lot of pressure
33:35on what we mean by the quote,
33:37UN quote normal course of events.
33:39It also puts pressure on the
33:41question of whether the early
33:43embryo becomes the person it
33:46ultimately develops into or produces.
33:48That is,
33:49the potential to become versus
33:50the potential to produce.
33:52Is it more like hydrogen and oxygen that
33:55produce water but don't become water?
33:58Or is it more like me yesterday and me today?
34:01The me yesterday became the me today.
34:04Notice this depends on both
34:06metaphysical premises,
34:07but also factual questions
34:08like the polarity of the.
34:10Embryo and directions in which it develops.
34:12There's a ton more to say about this,
34:14but I want to make sure
34:15to be respectful at time,
34:16so I'm going to stop here
34:17just with the idea as to why,
34:19as a normative matter,
34:20questions about embryo destruction and
34:22their relation to abortion are very complex.
34:24Thank you very much.
34:27Thank you so much, Glenn.
34:29And and I apologize to everybody
34:31involved in this talk that I've
34:32brought together these four wonderful
34:34scholars and then limited them so
34:36significantly in the time that they had.
34:38But I do appreciate the the
34:41efforts to stick with the time
34:43and the conversation thus far.
34:44Now the third speaker this evening
34:46will be Doctor Sarah Hull.
34:48Sarah is a board certified cardiologist
34:50and echocardiographer here at Yale
34:51and a well known educator here.
34:53Yeah, she's also an associate director
34:55of our program for biomedical.
34:57Ethics Sarah, guys on AB from Harvard
35:00University and Biochemical Sciences,
35:02a masters degree in bioethics from
35:04the University of Pennsylvania,
35:05where she also received her MD and
35:08did her internship and residency,
35:09and Sarah did her fellowship in
35:11Cardiology here at Yale and Seller.
35:13Sarah is a highly respected and beloved
35:16educator here at the medical school,
35:18and we're very pleased to hear
35:19your take on this doctor hall.
35:23Thank you so much, Mark,
35:24and thank you as well to Katie and Glenn
35:27for your really insightful comments.
35:30I'm the the last comments about the
35:32the potential personhood claims
35:34of the fetus are are going to be
35:36a really nice launching point I
35:38think as as I shift gears to talking
35:40more about medical ethics and also
35:43delve into a little bit of of moral
35:46philosophy and anthropology with
35:48respect to moral claims that that on
35:51personhood that the fetus may have.
35:54I don't have any.
35:57Conflicts of interest to disclose.
35:59But I will start by outlining pretty
36:02clearly what I I intend to argue
36:05with my portion of this panel.
36:07Which is to say that political or
36:10governmental restriction of access to
36:12evidence based reproductive healthcare,
36:14including abortion,
36:15is unethical for several reasons.
36:17Because it violates the autonomy
36:19of pregnant persons,
36:20because it exposes women to harm,
36:22and because it exacerbates
36:25systemic inequity and injustice.
36:27So, but before I go there,
36:29I I do think it's really important
36:31for us to discuss the moral status
36:33of the fetus because that that is for
36:35many a salient considerations in this debate,
36:37although I will argue that it actually is,
36:40it should not be the central consideration.
36:42But I think we we need to address
36:44it because it is very important
36:46with respect to how we think about
36:48ethical health policy.
36:49So.
36:50While it is of course the easiest
36:54to argue that personhood begins
36:57at a clearly demarcated line,
36:59such as conception or fertilization,
37:01or at the moment of birth,
37:04I think this really oversimplifies
37:06what for many people is a much
37:08more complex reality,
37:09which is to say that there's a
37:11lot of Gray zone and continuum
37:14in between those two points,
37:16and and many people don't necessarily
37:18ascribe to one of those two moments.
37:21As a moment where there's a clear line
37:24between complete absence of personhood
37:26and full conferral of personhood,
37:29and I think if we interrogate
37:31our moral intuition,
37:31we can really help to to put put words
37:34and and a more concrete understanding
37:36of of what I'm trying to say.
37:38So let's say that that you
37:40are on a sinking ship,
37:41it's sinking very fast and it's a long ship,
37:44and at one end you have a frozen test
37:47tube with five fertilized embryos in it,
37:50and at the other end you have
37:52a one month old.
37:53Baby,
37:53I think I would be hard pressed to
37:56believe that anybody on this call
37:58would hesitate to save the baby if if
38:00you only have time to save one of them,
38:03you don't have time to save both
38:04and get on that on a lifeboat
38:06before the ship sinks.
38:07I think,
38:07I think everybody would save the
38:09one month old baby before they
38:10saved the fertilized embryos.
38:11Because we intuitively we know that
38:14that that baby has more of a claim
38:18to personhood than those embryos do.
38:20Although at the same time
38:22I think that if there
38:23were no baby. There and there were
38:24just a test tube full of embryos.
38:26I don't think many people would would say,
38:29Oh well that's just, that's just debris.
38:32Just like you know this this flag on the
38:34ship and you can just let it go down.
38:36I I think that that many people
38:38would make a good faith effort to
38:40to to take that test tube if it
38:43were possible to do so and not,
38:45not compromise the survival of
38:48for example that that hypothetical
38:51one month old baby and so again.
38:53I I think that if we interrogate
38:55our moral intuition,
38:56we can understand that there there's
38:58some sort of middle ground between
39:00absence of personhood and full
39:02personhood for many that that an embryo
39:04or a fetus can can lay claim to.
39:07And I actually find the concept
39:10of liminality,
39:11as described by the anthropologist
39:13Victor Turner,
39:13is really helpful to sort of understand
39:16how how we might think about this,
39:19this sort of Gray zone or this
39:21in between state, or,
39:21as Victor Turner would say,
39:22a liminal state or transitional.
39:24State between absence of personhood
39:26and full personhood,
39:27the concept of liminality is
39:29often applied to rights of passage
39:31during adolescence.
39:32So, for example,
39:33an adolescent is really neither
39:36a child nor an adult,
39:38and while we legally decide that
39:41at age 18 we confer a legal status
39:44of adulthood onto people,
39:47we know that it's that.
39:48Actually, it's not a neat,
39:49discrete line before which someone is
39:51not an adult and after which someone.
39:54Someone is an adult.
39:55But in fact that the the status of
40:00adulthood is is really something
40:02that's achieved gradually over time.
40:03And there's no one discrete time
40:05point at which you can say someone
40:07is or is not an adult.
40:08And I think the same is true for many
40:11individuals when they think about
40:13how normatively they would approach
40:15the question of of fetal personhood.
40:19I think, again,
40:20we can look at our moral intuition to
40:23to sort of confirm this by considering.
40:26How?
40:26How?
40:27The loss of an intended pregnancy
40:30would affect people at different stages.
40:33So for example,
40:34the loss of a the miscarriage of a
40:38seven week embryo is certainly very sad.
40:41Whereas the miscarriage of a 5
40:43month old fetus for whom many
40:45people may have chosen a name,
40:47started decorating of a babies room,
40:50that's really a tragedy.
40:51And then if you compare that
40:53to the death of a 2 year old.
40:55Child who has a name,
40:57who has relationships with other people?
40:59That's a devastating life changing event,
41:02and I think it's really disingenuous
41:04to pretend that all of those things
41:06are morally equivalent because
41:08all of them have the same claim to
41:10personhood I I think that's not
41:12actually what what most most or
41:15certainly many people would believe.
41:17I would also note that we typically
41:19place very high symbolic value on
41:21a person's date of birth rather
41:23than a person's date of conception.
41:26And that's really a defining
41:27aspect of our personhood.
41:28You know, if you look someone
41:29up in their Wikipedia article,
41:31it says when they were born,
41:32the date of birth is what
41:33we use on legal documents.
41:35We celebrate each other's
41:37birthdays culturally.
41:38And so it it at least again seems
41:41reasonable that in in many ways we sort
41:44of tacitly understand that that full
41:46personhood is conferred upon birth.
41:49But that's not to negate the
41:50fact that there may be some
41:52partial or incomplete claims,
41:54or or liminal.
41:55Names, as it were to to personhood
41:59after conception but before birth.
42:01I I think more importantly,
42:04as has been stated earlier,
42:06this is really a metaphysical
42:08question that that is predicated on
42:11individual values and belief systems,
42:13and science alone cannot actually
42:16decide what the personhood
42:17of an embryo or a fetus is.
42:19And furthermore,
42:20it's unlikely that we will ever
42:22really achieve a robust consensus
42:24in our pluralistic society and.
42:26If we really need to draw a line,
42:28then we should leave that to the
42:31individual pregnant person who
42:32is carrying that embryo or fetus,
42:34and leave it to that person to
42:36decide when when full personhood
42:39is conferred upon that fetus.
42:42I will also just note from a just to
42:45provide some data that 93% of abortions,
42:49according to the CDC this is from 2019.
42:5293% of abortions occur at
42:53less than 13 weeks gestation,
42:55and only and under 1% occur after 20 weeks.
42:58So for for people who do
43:01ascribe or agree with,
43:03ascribe to,
43:03or agree with this concept of sort of
43:06a gradual accumulation of personhood
43:08claims as the embryo and fetus develops,
43:11it's worth noting that the vast majority of.
43:13Of elective terminations of pregnancy
43:16or or abortions occur in the embryonic
43:20or very early fetal stages of development.
43:23So if I'm arguing that we really
43:25shouldn't use the moral claims of a
43:28fetus to personhood as a basis for
43:30public policy in a pluralistic society,
43:33because it's a metaphysical
43:34and very personal question,
43:36what should we base ethical
43:38public health policy on?
43:40And the first concept is,
43:42is of course the concept of autonomy,
43:43which has been mentioned by by my
43:46colleagues or alternate or as I would
43:48define that and as many would define
43:50it as an individual moral agents,
43:52right?
43:53To self-determination or self governance
43:56and as autonomous moral agents,
43:58women should maintain the right
44:00to determine how their bodies
44:02may or may not be used.
44:04Full stop.
44:06Similarly if if again we take an
44:08example to to help illustrate this,
44:10if if I am a bone marrow match
44:13for my sister who has a terrible
44:16hematologic malignancy that
44:17is severely limiting her life
44:19expectancy and she's not expected
44:22to live more than a few months.
44:24Unless I donate my bone marrow and
44:26there are no other matches out there,
44:28it's me or it's no one.
44:30I don't think anybody would argue
44:33that I should be compelled by the
44:35law to donate my bone marrow to
44:38her. Now, many people would argue that
44:39that would be the right thing to do,
44:40that the most ethical thing to do
44:42would be to to donate my bone marrow,
44:45and that it would be to use to use
44:47some moral philosophy terminology.
44:49It would be supererogatory,
44:50or it would be a good thing to do,
44:52but it would not be obligatory.
44:54Or my legal or ethical duty
44:56to do that no matter what.
44:59And certainly, even if you think
45:01that ethically it should be my duty,
45:02most people would not argue that legally
45:04we should compel people to donate their
45:06bone marrow or to donate a kidney,
45:07for example,
45:08to individuals who who may need them,
45:11even if there's no other no other
45:14available donor that can be identified.
45:16And similarly,
45:17we can no more compel women to carry an
45:20unwanted pregnancy by the same reasoning.
45:24Another important ethical consideration
45:25upon which I think we should base sound
45:28and ethical public health policy is,
45:30of course the concept of of beneficence
45:33and the and the and the similar
45:35concept of of harm reduction.
45:38And again, it's it's worth noting that
45:40abortion is an essential component of
45:43evidence based reproductive healthcare.
45:45And in fact I I really take
45:47issue with the term pro-life,
45:49as it's often used as a euphemism
45:52for pro forced birth.
45:54Because if your policy actually
45:56is forcing gestation and birth,
45:58that's actually an often an
45:59anti life policy with respect
46:01to the pregnant person herself.
46:02Pregnancy carries several non negligible
46:05risks of morbidity and mortality
46:07even in otherwise healthy women,
46:09and these include massive hemorrhage,
46:11gestational diabetes,
46:12eclampsia,
46:12which is a condition characterized by
46:15dangerously high blood pressure and seizures,
46:17stroke, sepsis and pulmonary embolism
46:19which is a blood clot in the lungs,
46:22the risk of domestic violence.
46:24Also escalates during pregnancy,
46:25so it can be a safety concern
46:28even beyond a medical concern.
46:29And according to the CDC,
46:32in 2020 the maternal mortality rate was
46:3524 deaths per per 100,000 live births,
46:39compared with only .4 deaths
46:41per 100,000 abortions.
46:43So that's a 60 fold difference in the
46:46mortality risk between an abortion and
46:49carrying a pregnancy to term and and
46:52delivering that that pregnancy and so.
46:55Again,
46:55forcing women to stay pregnant and to
46:59deliver a child is is most certainly
47:03putting her at the risk of additional harm.
47:06In addition,
47:07there are certain pre-existing
47:09conditions that increase the
47:10risk of pregnancy substantially,
47:12in particular cardiac disease.
47:13The American College of Cardiology
47:15states that cardiovascular disease is
47:17the leading cause of maternal mortality
47:20and there are certain conditions such
47:22as severe pulmonary hypertension that
47:24can carry a combined maternal and
47:26fetal mortality rate approaching 50%.
47:28And actually it's recommended
47:30as part of the standard of care
47:34to Council consideration of
47:35pregnancy termination for patients.
47:37With these conditions,
47:39who who become pregnant?
47:40Furthermore,
47:41the development of certain conditions
47:43can pit the survival of the fetus
47:46against the survival of the mother.
47:48So,
47:48for example,
47:49let's take a young woman who
47:51recently discovers that she's
47:53pregnant and also is at the same
47:55time diagnosed with an aggressive
47:57form of breast cancer for which
48:00chemotherapy is recommended without
48:02undue delay in order to maximize
48:05their chances of survival without.
48:07Which she would likely have a
48:10much higher chance of of death.
48:12Most chemotherapy is absolutely
48:13incompatible with the development of
48:15a fetus because it's very cytotoxic,
48:17particularly deadly to dividing cells,
48:20which is of course exactly what
48:21an embryo and fetus do.
48:23And so by by restricting access
48:26to pregnancy termination you're
48:28basically telling this patient
48:30that she cannot undergo the the
48:32evidence based treatment she needs
48:34for her life threatening condition,
48:36but instead she must.
48:38Serve as a vessel for for the
48:41fetus that she is carrying,
48:43even though it may very well be that
48:45that child will grow up without a mother,
48:47and not to mention other
48:49children and other people,
48:51other dependents that this person might have.
48:54And accordingly, many medical societies
48:57have made statements either expressing
49:00concern about the Dobbs decision or very
49:02explicit support of abortion rights,
49:04underscoring the primacy of
49:06the health of pregnant persons.
49:08And these include the
49:09American Medical Association,
49:10the American College of Physicians,
49:12the American College of
49:14Obstetricians and Gynecologists,
49:15the American Academy of Family Physicians,
49:17the American Academy of Pediatrics,
49:19the American Psychiatric Association,
49:21the American College of Cardiology,
49:23and the American Society
49:24of Clinical Oncology.
49:25So while the moral status of a fetus
49:27may be a metaphysical question upon
49:29which we may never achieve consensus,
49:32there's a very clear consensus
49:33in the medical profession that
49:35pregnancy is a potentially high
49:37risk condition and restricting
49:39access to evidence based healthcare,
49:41including abortion,
49:42is unethical and because it is
49:44harmful to women.
49:49I'm going to quote from the American
49:51Medical Association statement because it
49:53provides a very nice segue to the last
49:55consideration that I'd like to discuss,
49:57which is the consideration of of justice.
49:59So I quote from the AMA statement.
50:02From June 24th, access to legal
50:03reproductive care will be limited to
50:05those with the sufficient resources,
50:07circumstances, and financial means to do so,
50:10exacerbating health inequities by placing
50:12the heaviest burden on patients from Black,
50:14Latinx, indigenous, low income, rural.
50:17And other historically disadvantaged
50:19communities who already face
50:21numerous structural and systemic
50:23barriers to accessing healthcare.
50:24So again, to be clear,
50:26women we know that women of color
50:28and low socioeconomic status are
50:30disproportionately affected by
50:31restrictions on abortion access,
50:32and they also already face higher
50:34risks of pregnancy related morbidity
50:36and mortality due to structural racism
50:38and social determinants of health.
50:40For example,
50:41the risk of pregnancy related death
50:42is 3 to four times higher for black
50:44women than it is for white women
50:46in the United States and in 2020,
50:49the CDC estimated the maternal
50:51mortality rate for black women
50:53at 55 deaths per 100,000.
50:56Live births.
50:57Interestingly,
50:58this is because,
51:00again,
51:01I think in recent years we've begun
51:03to understand that differences
51:04in socioeconomic status do not
51:07explain away racial inequities,
51:08and that structural racism persists
51:11regardless of socioeconomic status.
51:13Even when that's corrected.
51:14And many may remember when Serena Williams
51:17was pregnant and delivered her child,
51:20she had a pulmonary embolism and
51:22she knew something was wrong.
51:24She urged her healthcare providers.
51:28To look into this further because she was
51:30concerned she had a pulmonary embolism
51:32and she was dismissed as as a quote crazy.
51:35And so even for someone as as famous
51:38and well respected as Serena Williams,
51:41this is still a problem if black
51:43women are are not believed and are
51:45are taken less seriously when they
51:46express concerns about their health.
51:50Furthermore, restrictions on abortion
51:52access again don't eliminate abortion,
51:55they just eliminate safe abortions
51:58for already vulnerable populations.
52:00Again, according to the American College
52:03of Obstetricians and Gynecologists I quote,
52:05approximately 21 million women
52:06around the world obtain unsafe,
52:08illegal abortions each year,
52:10and complications from these unsafe
52:12procedures account for approximately
52:1313% of all maternal deaths,
52:15nearly 50,000 annually.
52:17Now, I will note that there are some
52:20concerns from disability advocates.
52:23I apologize for the scratching of my dog.
52:24In the background,
52:26there are some legitimate concerns
52:28from disability advocates that overly
52:30permissive abortion laws promote a
52:31form may promote a form of eugenics by
52:35selectively terminating pregnancies
52:36with significant fetal abnormalities.
52:37But I should note that this criticism
52:40actually ignores the fact that
52:42some people with disabilities,
52:44when they are adults themselves,
52:46may be at increased risk of pregnancy.
52:48Related morbidity or mortality if
52:49they were to be forced to carry
52:52a pregnancy to turn,
52:53and limiting abortion access may
52:55therefore actually harm these disabled
52:57people disproportionately as adults as well.
53:00And so,
53:00while I understand that there
53:02there is a legitimate concern from
53:05these disability advocates,
53:06I would argue that the answer is not
53:08to force women to carry to term and
53:10deliver pregnancies when they do not
53:11believe that they and their families
53:13can adequately care for the baby,
53:15but rather to reshape policy
53:16such that families.
53:18Feel that they can better care for children,
53:20and some of this might look like
53:22universal maternity and paternity leave,
53:24universally available childcare that's
53:25commensurate with the needs of children,
53:28particularly when these
53:29children have disabilities.
53:31Better investment in infrastructure such
53:33as public schools and public safety.
53:37And so, in summary,
53:38the moral status of the fetus
53:40cannot be resolved by science,
53:42and it may not be reasonable to expect
53:44a consensus in a pluralistic society.
53:46So we should allow individuals to
53:48to decide for themselves rather than
53:50force our personal beliefs onto others.
53:52Women are autonomous moral agents,
53:54and decisions about healthcare and
53:56their bodies should be between them
53:58and their healthcare providers.
53:59Pregnancy and childbirth may
54:00expose women to harm.
54:02The can sometimes only be mitigated
54:04by the termination of pregnancy
54:06restrictions to access to evidence.
54:08Excuse me?
54:09Restrictions on access to evidence
54:11based reproductive healthcare,
54:12including abortion,
54:14exacerbate already unjust health disparities.
54:17And finally,
54:17ethical health policy should have
54:19the dual aims of ensuring patient
54:21autonomy and access to evidence.
54:23These standards of care,
54:25including abortion,
54:25and also to improving health systems
54:28to reduce unintended pregnancies
54:29and to reduce barriers to providing
54:31adequate care to children.
54:33Thank you.
54:36Thank you very much, Doctor Hall.
54:39And to remind you folks,
54:41we will have some time at the end to
54:43if you'd like to add some questions
54:45through the Q&amp;A function on on zoom.
54:47But we have one more speaker this evening
54:49who is a Professor Jennifer Hurt.
54:51Jennifer Hurd is the Gilbert L
54:53Stark professor of Christian ethics
54:55at the Yale Divinity School.
54:56She's also a former president of
54:58the Society of Christian Ethics
54:59and she serves on the editorial
55:01boards of the Journal of Religion,
55:02Journal of Religious Ethics and Studies.
55:05In Christian ethics,
55:07professor Hurt received her
55:10bachelor's degree from Oberlin
55:11College in Religion and Biology,
55:14a master's degree from Princeton University,
55:16and a PhD in religion from
55:19Princeton University.
55:20Welcome, doctor herdon.
55:21Thank you so much for joining us.
55:23Thank you very much, Mark.
55:24And it's really a pleasure
55:26to join this panel.
55:27But I'd like to add this afternoon
55:29is a religious ethical lens on
55:30this conversation with the view
55:32of shedding light on how Christian
55:34stances and to a lesser extent.
55:36Jewish stances on abortion
55:38have become so polarized.
55:40Why pay attention to this history?
55:42Well, for one thing,
55:44because Jewish and Christian perspectives
55:45have been central to the formation
55:47of the Western legal tradition,
55:49and also because self identified Christians
55:51still make up 63% of the US population.
55:55Furthermore,
55:55the decades long activism of
55:57certain Christian groups,
55:59notably Roman Catholics in a
56:01coalition with evangelicals powered
56:03the overturning of Roe V Wade,
56:05and often this anti abortion stance
56:07is regarded as the Christian view.
56:10But in fact Christians and official
56:12church bodies today have widely varying
56:14views on the ethics of abortion,
56:17ranging from the United Church
56:18of Christ on the on one end of
56:20the spectrum with a full throated
56:22support for abortion rights through
56:24total condemnation of abortion.
56:26And among Jews as well, views are divided.
56:28There are some Orthodox Jews today who
56:30do regard abortion as tantamount to murder.
56:33But many Orthodox Jews
56:35support abortion rights,
56:37and overall,
56:3888% of American Jews support
56:40strong abortion rights.
56:41And in fact have brought recently
56:44and groups have brought religious
56:46liberty lawsuits claiming that a
56:48right to abortion is necessary to
56:51protect their religious free exercise.
56:53But overall,
56:54there's a greater polarization of views,
56:56and particularly here among Christians,
56:58than it perhaps at any other
57:00time in the past.
57:02From early on in their history,
57:03Judaism and Christianity have
57:05had a pronatalist stance,
57:07and is rooted in Genesis,
57:09in the command to be fruitful and multiply.
57:12So large families were associated
57:14with prosperity and blessing,
57:16and this was joined together with a strong
57:19concern for the lives of the vulnerable.
57:22So the Hebrew prophets proclaiming the
57:26the call made on persons by widows,
57:31orphans,
57:31the poor.
57:32And we see that being extended
57:34to other vulnerable life,
57:36for example in early Christian efforts
57:39to save inference from infanticide,
57:41which was legal under Roman law,
57:43and Christian efforts to set up
57:46orphanages for abandoned children.
57:48So how did these views as concern
57:51for and vulnerable life play out
57:55in relationship to abortion?
57:57Well, in the Hebrew Bible,
57:58the penalty for injuring a pregnant woman
58:01and causing a stillbirth was a fine.
58:04But if the woman died,
58:06the penalty was a life for a life.
58:08In other words,
58:09abortion was an offense,
58:11but it wasn't an offense that was
58:13seen as on the order of murder and
58:16only ever seen as acquiring the full
58:19moral standing of a born human being.
58:22It was common among Jewish thinkers
58:25to distinguish different stages based
58:27on how fully formed the fetus was,
58:29with moral standing increasing
58:32as pregnancy progressed.
58:34Abortion was not considered more
58:36ethically insignificant at any stage though,
58:38and rabbinic Judaism prohibited
58:40most abortions except to save the
58:43life and health of the mother.
58:45Within pre modern Christianity,
58:47fetal life was similarly it was
58:49widely taken to have moral standing
58:51comparable to a born human being,
58:53but only after a particular stage,
58:56and typically this was associated
58:58with quickening quickening usually
58:59in the 4th or 5th month when the
59:02woman can first feel the movement.
59:04Of the fetus.
59:05In medieval theology this was
59:07associated with ensoulment.
59:09That meant that it was associated with
59:12the dualistic metaphysics in which
59:14the soul was implanted in the body at
59:16that particular moment of development.
59:18And prior to this,
59:19the fetus was seen as part of the mother,
59:21not seen as a separate human being.
59:24So penalties for abortions that that were
59:27procured after quickening were more severe,
59:30and we can see very similar things in most
59:33of them thinkers with different stages.
59:35That had to do with perception
59:37of how developed the fetus was.
59:40Abortion to save the life of the
59:42mother was accepted at whatever stage,
59:44and there were both pharmaceutical
59:46and surgical procedures that were
59:49discussed in medical and theological
59:51texts as necessary and as justified
59:54under such circumstances.
59:56But that raises a question,
59:57of course.
59:57If a P, if if a fetus post quickening has
01:00:01the moral standing of a born human being,
01:00:03how could its killing be justified?
01:00:06Well, killing in war was justified
01:00:09within the tradition,
01:00:11so the prohibition on killing was a
01:00:14prohibition of killing of innocent life.
01:00:16Of course,
01:00:16a fetus would seem to be innocent life,
01:00:19but the argument is that a fetus
01:00:22whose existence threatens the life
01:00:23of the mother is akin to an insane
01:00:26person charging with a lethal weapon.
01:00:28That is,
01:00:29the fetus or the insane person
01:00:31attacking is subjectively innocent,
01:00:34but is objectively an aggressor.
01:00:36And the aggressor may be killed if
01:00:38that's the only way to protect the
01:00:40life of the one being threatened.
01:00:42And that is the traditional ground
01:00:43for the argument for abortion,
01:00:45to save the life of the mother and is
01:00:47found across multiple religious traditions.
01:00:50So there was concern for
01:00:52vulnerable fetal life,
01:00:53particularly after quickening or
01:00:55after some stage of development.
01:00:58But concern for fetal life was never only,
01:01:00never.
01:01:01The whole picture,
01:01:02just as significant in shaping
01:01:04attitudes to abortion, was a concern.
01:01:07The control over women's sexuality and a
01:01:09concern for assurance of male lineage.
01:01:12Women were thought to seek
01:01:14abortions in order to conceal non
01:01:16or extramarital sexual activity.
01:01:18And of course that was true given
01:01:20to the harsh treatment of women
01:01:21who engaged in such activity,
01:01:23whether or not it was by choice.
01:01:26So condemnation of abortion by
01:01:29these religious traditions was
01:01:31part of a patriarchal system of
01:01:34male control over women's bodies.
01:01:36Speciality.
01:01:39Now,
01:01:39there are several important
01:01:40shifts in attitudes to abortion
01:01:42and illegal status of abortion
01:01:43or the over the course of U.S.
01:01:44history.
01:01:45And I have to skip over all of that
01:01:48except to note that as fetal under
01:01:50fetal development was understood,
01:01:52more and more quickening
01:01:54was no longer seen as a
01:01:55particularly relevant ethical,
01:01:57ethical dividing line.
01:02:00So if we go to the mid 1960s and we see that,
01:02:04well, in the early 1960s abortion
01:02:06was prohibited in those states except
01:02:08to save the life of the mother.
01:02:10But in the mid 1960s this starts to change.
01:02:12In tandem with the women's movement and
01:02:15changing attitudes towards towards sexuality.
01:02:17Women were of course seeking
01:02:19social and legal equality,
01:02:21seeking autonomy, making decisions.
01:02:23And what decisions were more intimate and
01:02:26weighty than those concerning pregnancy?
01:02:28Who was better situated to
01:02:30determine whether a pregnancy?
01:02:31Posed a threat to a woman's life and health
01:02:34that the pregnant persons themselves,
01:02:37and this allowed for the consideration
01:02:40of all of the circumstances
01:02:42involved as casuistry in these
01:02:45religious traditions required.
01:02:47Well, what really sparked the Roman
01:02:50Catholic movement against these liberalized
01:02:52abortion laws was contraception.
01:02:54The birth control pill was introduced
01:02:56in 1960, it was extremely popular,
01:02:58and it generated fears among Catholic
01:03:00authorities that it would encourage.
01:03:02Sexual activity outside of wedlock.
01:03:05Mainline Protestants,
01:03:05in the other hand,
01:03:07embraced it as enabling family planning.
01:03:10In this social context of
01:03:12liberalizing attitudes towards
01:03:13sexual activity and expression,
01:03:14Catholic activists had much greater
01:03:17success mobilizing the faithful against
01:03:20abortion than against contraception.
01:03:23Sensitized concern for vulnerable
01:03:25and dependent fetal life,
01:03:26deeply embedded in the tradition proved to
01:03:29be a strong force for mobilization mainline.
01:03:32Partisans,
01:03:33in contrast,
01:03:34deeply committed to women's equality and
01:03:37autonomy and embracing contraception,
01:03:39focus their attention on these goods.
01:03:41And we're increasingly inclined to downplay
01:03:43the moral significance of fetal life,
01:03:45regardless of its point of development.
01:03:48Catholic leaders focus very heavily
01:03:50on the rural claim of fetal life,
01:03:52and we're increasingly inclined to down.
01:03:56Play the anguish and justice is
01:03:58produced by a system in which
01:03:59abortions were safe and available
01:04:01only for the wealthy and educated.
01:04:03Evangelical Protestants,
01:04:04meanwhile,
01:04:04were initially immobilized by
01:04:06a completely different issue,
01:04:08the issue of the freedom of Christian
01:04:10schools from governmental interference,
01:04:12which we are now recognizing to have
01:04:14been linked with a racist desire
01:04:17to preserve whites only education.
01:04:19But evangelicals, too,
01:04:21became eager to defend fetal life,
01:04:25and this was.
01:04:26Tightly yoked to their anxiety
01:04:29over sexuality.
01:04:30So on both sides I think we can
01:04:32see that there was a failure to
01:04:34address in a concerted way the
01:04:36primary reasons that women seek
01:04:38and have throughout human history.
01:04:42Lack of better affordable,
01:04:44readily available means of
01:04:46avoiding pregnancy and lack of
01:04:49resources and social support for
01:04:51giving birth and raising a child.
01:04:54Talk of choice hides the fact
01:04:55that for many poor women,
01:04:57choices are extraordinarily
01:04:58burdened and constrained.
01:05:00Given the lack of support for bringing
01:05:02a pregnancy to term and raising a child.
01:05:05This is true around the world.
01:05:07According to the Guttmacher Institute,
01:05:08abortion rates are actually highest
01:05:10in countries where access to
01:05:12abortion is restricted.
01:05:14In countries that restrict abortion,
01:05:16the percentage of unintended
01:05:17pregnancies and ending an abortion has
01:05:20increased during the past 30 years,
01:05:22from 36% in 1990 to 94 to
01:05:2550% in 2015 to 2019.
01:05:29Here in the US, the states in which
01:05:31abortion is now illegal are the states in
01:05:34which care for maternal health is weakest,
01:05:36and this should be a scandal for those
01:05:39promoting a consistent ethic of life.
01:05:42As Catholic ethicist Christina
01:05:44Traina has recently written,
01:05:45neither making abortion legal nor
01:05:48making it illegal addresses the
01:05:50conditions that create the desire
01:05:52for abortion in the 1st place.
01:05:55Bans will worsen those conditions.
01:05:58What of the rights that never materialized
01:06:01for robust maternal healthcare,
01:06:02indeed for universal and comprehensive
01:06:04healthcare and adequate social support,
01:06:07including decent wages, childcare,
01:06:09housing and job training?
01:06:12Talk of choice is cheap,
01:06:13and the kind of support that
01:06:16would truly support substantial
01:06:17freedom of choice for all,
01:06:18regardless of income level and
01:06:21racialization may be costly,
01:06:22but it enables a society worth living in.
01:06:26And this is, I think,
01:06:27what those loyal to biblical traditions
01:06:30of concern for the most vulnerable
01:06:32ought to be focusing on right now.
01:06:34Thank you.
01:06:39Thank you so much, Professor Hurton.
01:06:41Thanks to all our speakers.
01:06:42So I'm going to open it up now
01:06:45to questions through the Q&amp;A.
01:06:47Please type them in.
01:06:48I'm going to take the prerogative of of
01:06:50the moderators prerogative asking the
01:06:52first question and I'll open this up to,
01:06:54to any of our speakers.
01:06:55So these were wonderful presentations
01:06:57and and I'm truly grateful.
01:06:59One of the things about the presentation
01:07:02that interested me was the question
01:07:03of whether one should seek to
01:07:05draw the line and how that line
01:07:07should be drawn in the whole first.
01:07:08It starts right with Katie's.
01:07:10The very first thing about Justice
01:07:12Roberts question about do we have
01:07:13something other than viability to go for.
01:07:15So an interesting detail which
01:07:17which I think a lot of folks on the
01:07:20call may know but many may not,
01:07:21is that the age of viability,
01:07:25if you will,
01:07:26has been often referred to it 20 as 24 weeks,
01:07:29even now as as recently as a few years ago,
01:07:31two or three years ago,
01:07:32I taught a class and a colleague that
01:07:34told the students that viability is
01:07:3624 weeks to which I had to attend say,
01:07:38well, the legislature.
01:07:39Just to decide when abortion is legal
01:07:42or when abortion becomes illegal,
01:07:44but they don't.
01:07:44The legislation doesn't really
01:07:46decide when viability occurs.
01:07:47And the reality is that that for
01:07:49there are places that are very
01:07:50aggressive at trying to save a
01:07:52child at 22 weeks or a fetus at
01:07:5422 weeks or newborn at 22 weeks.
01:07:56I should stay and and somewhere
01:07:58between 1/3 to 1/2 of those newborns
01:08:00that weren't at 22 completed weeks
01:08:03survive and and certain centers.
01:08:06And there are certainly many
01:08:07survivors at 22 weeks here and
01:08:09and at least half or more.
01:08:10And half of those born at 23
01:08:12weeks if active resuscitation
01:08:14is attempted can survive.
01:08:16So viability and Katie you pointed
01:08:17this out early on is that that of
01:08:19course you know Roe V Wade was a
01:08:21long time ago and and so that that
01:08:23the technology has changed but
01:08:25where to draw the line and how to
01:08:27draw the line is an interesting
01:08:28one and if we if we look at the
01:08:31gradualist approach to this in terms
01:08:32of a moral status and if moral
01:08:33status increases over the course
01:08:35of gestation nevertheless and Glenn
01:08:37I think it was you forgive me if I
01:08:39if it was someone else who raised.
01:08:41Judith Jarvis Thompson's argument
01:08:42about the violinist on her scenario
01:08:45about the violinist.
01:08:46And the point being that even the
01:08:48violinist who we would all agree
01:08:50has full moral status.
01:08:51Nevertheless,
01:08:51it seems wrong to require that
01:08:54person who finds himself tethered
01:08:55to the violinist to remain in bed
01:08:58for however long it needs to keep
01:09:00the violinist alive.
01:09:01And it's an interesting thought experiment,
01:09:03and one that's obviously caught the
01:09:05imagination of people who study
01:09:07these things for decades now.
01:09:09So I guess my question to the group.
01:09:11What I'm leading up to is at what point
01:09:15do you feel abortion should be permitted?
01:09:19And this is one of the questions that
01:09:22actually came came through to me.
01:09:24From a colleague from my cell phone is that.
01:09:28Is it? Should abortion be
01:09:29permitted at 38 weeks? At 22 weeks?
01:09:32Is there is can any of you see a
01:09:35line where it should in fact be
01:09:37permitted legally or or ethically?
01:09:40Or should it be permitted
01:09:41throughout gestation?
01:09:45I'll open up to anybody who wants to jump in.
01:09:47Does someone want to say where the
01:09:49line we used to say the lines at
01:09:5124 weeks and and I think that is
01:09:53still the case in Connecticut and
01:09:55maybe I'll start.
01:09:56So I'll start by saying that you'll
01:09:57find very few bioethics and lawyers
01:09:59that like the viability line.
01:10:00They they liked it since that all their
01:10:02lines might have been worse in terms of
01:10:04what was likely to be replaced by it.
01:10:05And I think Justice Alito's opinion,
01:10:07you know, has some choice words
01:10:08for it and there's lots of parts of
01:10:10his opinion that I disagree with.
01:10:11But this is one place where I think
01:10:13he's being somewhat fair myself.
01:10:15Like viability,
01:10:15I think one of the questions is whether
01:10:18the line ought to be one about time at all.
01:10:20Right.
01:10:20There are multiple lines you
01:10:21could think about when we look
01:10:23comparatively across the world, right.
01:10:25There are places where instead of shoot,
01:10:27you know, it's a combination of timing,
01:10:29but it's also about reasons, right?
01:10:32That and review and procedures.
01:10:34This idea that if we had a very
01:10:37expansive conception of the health of
01:10:39the mother that included mental health,
01:10:41one might be willing to kind of
01:10:43consider a line that's different.
01:10:45The absolutist position,
01:10:46which I do associate with Judith
01:10:48Jarvis Thompson, you know,
01:10:50essentially the idea that while
01:10:52you have a right to,
01:10:54an absolute right to unplug
01:10:55at any point of development,
01:10:56because the development is irrelevant
01:10:58in terms of the personhood of
01:11:00the individual or conceding the
01:11:02person or the individual,
01:11:03and we're talking about unplugging.
01:11:05I tend to think of that particular view,
01:11:08while kind of very principled,
01:11:09is not one that you find of very,
01:11:12very many people pushing forward,
01:11:14whether that's a political judgment.
01:11:16Ethical judgment, I think,
01:11:17is an open question,
01:11:18but I'm curious other people.
01:11:21Thank you. Let me share some of the
01:11:24questions that have come through here
01:11:25and some of these are, oh, please,
01:11:27I just want to piggyback on that, if I may.
01:11:29You know, I think I think that's
01:11:31a an issue that's raised a lot to
01:11:34sort of make abortion perhaps much
01:11:36murkier than than it usually is.
01:11:39And that's why I actually cited the
01:11:41statistics the the fact that under 1% of
01:11:44abortions happen beyond 20 weeks gestation.
01:11:48And so, you know,
01:11:50we talking about viability, you know,
01:11:52the the vast majority are going to be.
01:11:54Almost certainly pre viable and
01:11:57it's it's my understanding.
01:11:59Although you know,
01:12:00I would love input from our our our
01:12:04gynecology and obstetrician colleagues.
01:12:07My understanding is that most of
01:12:09the abortions that happen after that
01:12:12point are not just oopsie Daisy,
01:12:14I changed my mind.
01:12:15I don't want to have a baby anymore.
01:12:17These these are these happen
01:12:19because of really devastating fetal
01:12:21abnormalities that are discovered that
01:12:23are either incompatible with life.
01:12:25Or incompatible with any life other
01:12:28than a short life of of certain
01:12:31suffering and not not extended
01:12:34viability after birth or again,
01:12:37like a significant threat to
01:12:38the health of the mother.
01:12:40But of note,
01:12:41if if a pregnancy is desired and the
01:12:43health of the mother is compromised.
01:12:45And again, I I want to be clear.
01:12:47I'm not an obstetrician or gynecologist,
01:12:48so I I would love clarification
01:12:50from my colleagues,
01:12:51but my understanding is that if if a
01:12:52fetus is clearly beyond the point of
01:12:54viability and the pregnancy is very
01:12:56threatening to the health of the mother.
01:12:58Then the then the choice doesn't
01:13:00become either abortion or carry the
01:13:02pregnancy the term that the choices
01:13:04well do do we undergo expectant
01:13:06management or do we deliver early
01:13:08and manage because you know the fetus
01:13:11is is viable and even though we we
01:13:14we would love to keep in in utero
01:13:16for longer to ensure development
01:13:18we're going to give steroids and
01:13:20surfactant for lung development.
01:13:21And again Mark you probably can speak
01:13:23more intelligently about this than I
01:13:25can as a neonatologist but you know
01:13:27we're we're going to do the best we can.
01:13:28And so it's so just this idea that
01:13:31there again we we love to hear
01:13:33about this from abortion opponents,
01:13:35all these stories of, you know,
01:13:37again, partial birth abortion,
01:13:38which is not a medical term,
01:13:39that's not clear what that even means.
01:13:41But the fact is that the vast majority
01:13:44of abortions happen well before that
01:13:46that that blur of viability because
01:13:49it isn't a line, as you pointed out.
01:13:52And the ones that do happen late
01:13:54usually are because that that fetus
01:13:57is is not going to have.
01:13:59A very good chance at at anything
01:14:01resembling what most people would would
01:14:03call a a life without abject suffering.
01:14:06Or again,
01:14:06the pregnancy is terminated early
01:14:08because of severe threat to the mother.
01:14:10But usually in those cases they try
01:14:11to save the the fetus if if possible.
01:14:14So I, I, I,
01:14:15I welcome input from neonatology
01:14:16and guinot colleagues,
01:14:18but I just think that's a
01:14:19really important distinction.
01:14:20It's not that people are,
01:14:21you know, at 8 months pregnant
01:14:22all the time just deciding, oops.
01:14:23I yeah. I don't want to kid.
01:14:24I'm just going to,
01:14:25I'm just going to have an abortion.
01:14:26That's I don't think that
01:14:27really reflects reality.
01:14:30Thank you. Thank you.
01:14:30Let me see if I can get you a couple
01:14:32of questions in here if I could.
01:14:34And some of them are specifically legal
01:14:36questions and I because I wanted us to
01:14:39focus more on the ethical issues here.
01:14:41But there is one legal question
01:14:42that I will ask here because I
01:14:44think it's worth asking here.
01:14:46What's directed for to attorney Kraschel?
01:14:50Does Connecticut's law protecting
01:14:53physicians also explicitly protect APRN,
01:14:55PA's and midwives?
01:14:58Yes, it protects the licensed medical
01:15:00professionals providing healthcare
01:15:02that's legal in Connecticut.
01:15:05I will just say, however,
01:15:07that it is the shield laws that are in place.
01:15:11There's a lot to play out in
01:15:13the legal landscape to see how
01:15:15strong those Shields will be.
01:15:16I would not advise that.
01:15:17I think that the shield laws are bulletproof.
01:15:20They are states doing the best to
01:15:22protect the providers and the people
01:15:24seeking abortion care in those states.
01:15:26I think they're important.
01:15:28Laws that have been passed and put in place.
01:15:31And I'm proud of the fact that
01:15:33Connecticut was the first to do it.
01:15:35But I would just caution that there is.
01:15:38There are a lot of unknown legal questions
01:15:40that are probably going to arise when states,
01:15:43for example,
01:15:44start to refuse to honor us.
01:15:47You know,
01:15:48a request from another state to issue
01:15:50a subpoena through their usual legal
01:15:53infrastructure in a given state.
01:15:55Thank you. Thanks, Katie.
01:15:57Here's the question, please.
01:15:58Thinking about forced gestation,
01:16:00embryo destruction,
01:16:01abortion from a rights perspective,
01:16:03while some views more strongly
01:16:06favored some and more weakly others,
01:16:08can't we argue that all of these are
01:16:10rooted in the right to decide the
01:16:12number and spacing of your offspring?
01:16:14Admittedly, this neglects the argument
01:16:16of bioethical issue of life of the fetus.
01:16:19But we can currently.
01:16:21We can currently take Thompson's
01:16:23argument that the life of
01:16:25the fetus does not matter.
01:16:27Additionally,
01:16:27this right is still separate
01:16:29from the legal right.
01:16:31Umm.
01:16:34Maybe I'll say a word or two about
01:16:35about that right, which this is a
01:16:37little bit where I said about the
01:16:38second premise of the argument, right,
01:16:40that the idea of abortion is gestation,
01:16:43the right not to gestate is a
01:16:45very strong right we all have.
01:16:47And Professor Hall,
01:16:49Dr Hall mentioned this with the
01:16:51example of force bone marrow
01:16:53transplant or blood transfusion.
01:16:55We tend to think we have very strong
01:16:58rights over our body and in some ways
01:17:00the rights being asserted by people
01:17:02who are who want to restrict abortion.
01:17:04Is kind of on the same terrain.
01:17:06And one can say,
01:17:07even if I believe that fetuses have a
01:17:09very strong rights claim to be protected,
01:17:12here's this other rights claim that
01:17:13also sounds in bodily autonomy,
01:17:15and thus the conflict is kind
01:17:16of you have to choose one.
01:17:18By contrast,
01:17:18when you talk about something like
01:17:20a right to control the number of
01:17:22offspring and spacing ones offspring,
01:17:23for example,
01:17:24these are also real rights claim.
01:17:26It just seems to me they're
01:17:28defeasibility conditions,
01:17:28so when they get trumped and when they
01:17:31get overwhelmed comes much sooner than
01:17:33when we're talking about a right to control.
01:17:35One's body,
01:17:36and I think this is most apparent
01:17:37from people who've analogized,
01:17:39writes about abortion to 13th Amendment,
01:17:42anti slavery, rights of to say,
01:17:43to describe what it is to be a gestating
01:17:46person against one's will as akin to slavery.
01:17:49It's just a much stronger, in my view,
01:17:51rights claim to say that I have a right.
01:17:53If I have any rights in the world,
01:17:55it is the right not to
01:17:56have that happen to me.
01:17:58Whereas a right to space out your children.
01:18:00There's all sorts of ways in which
01:18:01the law does restrict that or at
01:18:04least doesn't support that right.
01:18:05Whether it's the weak coverage we
01:18:07have for in vitro fertilization,
01:18:08whether it's social support for parents,
01:18:11those are all positive liberty
01:18:12versions of the right.
01:18:13But just to say,
01:18:14even if that's a real right,
01:18:15it's not clear that's a right
01:18:17that's good enough to overcome,
01:18:18a right to protect the fetus for somebody
01:18:20who believes the fetus is a person.
01:18:22Thank you. Thank you.
01:18:23And if I, if I might also just add
01:18:25on top of that too is that to the
01:18:27extent there is a constitutionally
01:18:28protected right to parenting decisions
01:18:30found in the US Constitution,
01:18:32it's also, you know,
01:18:34I think most scholars would agree and.
01:18:36Their Supreme Court is that it's
01:18:38in the substantive due process
01:18:39of the 14th amendment.
01:18:40So that's in that sort of bundle of
01:18:44rights that I would say, you know,
01:18:46it becomes sort of disfavored rights
01:18:49perhaps as in the wake of the decision in
01:18:53which the court took apart one of them.
01:18:56And as Professor Cohen mentioned,
01:18:59Justice Thomas would suggest we
01:19:00should apply that same reasoning to
01:19:03other substantive due process rights.
01:19:05So even if we found.
01:19:07That that right existed under
01:19:09the US Constitution.
01:19:10Today,
01:19:11I would query whether or not it would
01:19:14withstand a similar analysis by this court.
01:19:19Thank you. Here's a note from one
01:19:20of our our maternal fetal medicine
01:19:22colleagues which is worth mentioning.
01:19:24Please just want to clarify the
01:19:27chemotherapy point we give chemotherapy
01:19:29and pregnancy and many cancer
01:19:31chemotherapies are not considered
01:19:33incompatible with supporting the pregnancy.
01:19:35We need to make sure we get
01:19:37that point correct.
01:19:37So Sarah, I I think the point you
01:19:39were making stands but but this
01:19:41nevertheless is we we don't we we
01:19:43want to make sure that people for
01:19:45example might be pregnant and also
01:19:47have cancer understand that that
01:19:49chemotherapy is not incompatible.
01:19:50Necessarily with pregnancy,
01:19:52with supporting a pregnancy and.
01:19:55For that clarification.
01:19:57This question is directed to you,
01:20:00Professor Cohen's parent's parents
01:20:01have a legal responsibility
01:20:03to care for their children.
01:20:05Does that responsibly extend
01:20:06to a fetus and why or why not?
01:20:10Yeah, so let me say two
01:20:12things that one is to say,
01:20:13and this is now an interesting
01:20:15discourse within people who who do this,
01:20:17who are philosophically interested.
01:20:18One of the big critiques of Judith
01:20:21Jarvis Thompson is that it posits
01:20:23the relationship of a stranger to
01:20:25another stranger as opposed to the
01:20:27relationship of a person to a life
01:20:29that they have fostered and created.
01:20:30So there's definitely a strand of
01:20:32critique of the Thompson style argument
01:20:34that says it's not just a random
01:20:36person who's your human dialysis
01:20:38machine or a long lost relative.
01:20:40Who needs a blood transfusion?
01:20:42It is a life that you brought into being
01:20:44and put in this potential to be harmed,
01:20:47and maybe that increases it.
01:20:49As a second thing I want to
01:20:50say is that the legal matter,
01:20:51one of things very interesting
01:20:52is that states that have adopted
01:20:54personhood language are now facing
01:20:55all sorts of interesting questions.
01:20:57So Georgia, for example,
01:20:59is giving a tax credit for dependencies
01:21:01for state law purposes to fetuses.
01:21:04And in Texas,
01:21:05I believe there was somebody
01:21:06that sounds silly to say it,
01:21:07but there was somebody who basically
01:21:09claimed that they had a right to be in the.
01:21:10High occupancy vehicle lane because
01:21:13they were pregnant, right.
01:21:15So there were two people in the car.
01:21:16So once you start recognizing the
01:21:18personhood of of embryos or fetuses for the
01:21:21purpose of trying to get out of abortion,
01:21:23restrict abortion,
01:21:24suddenly you have a long list of laws.
01:21:27You have to ask how does it apply here?
01:21:29And the one that I think is the most
01:21:30kind of potent and this is something
01:21:32that show good one among others have
01:21:34written about is child endangerment
01:21:35laws and how ingesting drugs,
01:21:37for example, relates to that.
01:21:38So that's an area that we've
01:21:39had a lot of conflict.
01:21:40Already,
01:21:41and I imagine we'll see more
01:21:42conflict going forward.
01:21:44Thank you. Thank you, Glenn.
01:21:45It's worth pointing out,
01:21:46which I think is is known to most
01:21:48or all people, just to remind us
01:21:50that that in terms of the analogy,
01:21:53no doubts the special relationships
01:21:55carry with them special obligations.
01:21:57But but it's also known,
01:21:58I think that everybody on this
01:22:00call that not every pregnancy is
01:22:02the result of a voluntary act.
01:22:04And that's probably perhaps relevant
01:22:06to the conversation as well.
01:22:07Another one of my maternal fetal
01:22:09medicine colleagues wants you to know,
01:22:10Sarah, that you are correct.
01:22:13Most late abortions are due to fetal
01:22:15abnormality. From maternal risk.
01:22:17Umm.
01:22:21And another OB colleague wants us to
01:22:23know that the majority of abortions
01:22:25are done for social reasons,
01:22:26not due to severe fetal anomalies or threat
01:22:29to the mother, even those after 20 weeks.
01:22:32So there appears to be a difference
01:22:35of opinion perhaps on that. Here is a.
01:22:42Can you discuss the ethical dilemmas
01:22:44of physicians in restrictive
01:22:45states where they cannot practice
01:22:47medicine the way they were trained?
01:22:49Now being unable to refer or
01:22:51perform abortions in women
01:22:53who need one for physical,
01:22:54mental or psychosocial reasons?
01:22:56Does anybody want to address?
01:22:59Obviously this is a I mean,
01:23:01this is a huge question,
01:23:02but the ethical dilemmas faced by physicians
01:23:04where there are legal restrictions?
01:23:06That prevent them from practicing in
01:23:08a way that they feel is appropriate.
01:23:11So I I can take that.
01:23:13Umm so you know, I I I think it's it's a
01:23:17it's a huge ethical dilemma because as
01:23:19as I've hopefully persuaded most people,
01:23:22restricting access to evidence
01:23:25based healthcare causes patient
01:23:27harm and violates patient autonomy.
01:23:29And so telling physicians that or
01:23:33other healthcare providers that
01:23:34they cannot provide evidence based
01:23:36healthcare that honors their patients
01:23:38wishes with respect to what they
01:23:40will or will not do with their own.
01:23:42Bodies is is really a violation of of
01:23:44some of our core duties as physicians
01:23:47and other healthcare providers.
01:23:49And there have been some calls for civil
01:23:53disobedience on an organized scale.
01:23:56Actually.
01:23:56That is to say that medical
01:23:59societies should work to provide
01:24:01legal cover for physicians in those
01:24:04states to provide services that are
01:24:07medically and ethically warranted
01:24:09even though they are illegal and.
01:24:12And to provide a robust enough
01:24:16protection with the idea being that if
01:24:19there's organized civil disobedience
01:24:22amongst an entire profession that
01:24:24it's really going to be impossible to
01:24:26operationalize laws because you can't put,
01:24:28you know,
01:24:29you can't put half of your state
01:24:31physicians in jail for half of your
01:24:33states OBGYN's in jail, for example.
01:24:35It's it's not as applicable
01:24:36to all physicians, obviously.
01:24:37You know, I as a cardiologist,
01:24:40I do not know how to provide
01:24:41that kind of care.
01:24:42Although there are,
01:24:43there are many cardiologists,
01:24:45particularly those who who specialize
01:24:46in the in the care of in the
01:24:49cardiac care of pregnant women,
01:24:50who who do often find themselves in the
01:24:52role of needing to counsel patients.
01:24:53And so maybe it's even, you know,
01:24:56if it's illegal to even counsel
01:24:58patients about pregnancy termination.
01:25:00Maybe that's an act of civil
01:25:01disobedience that they have to undergo,
01:25:03that they have to undertake.
01:25:04Excuse me,
01:25:05but I think it's also important
01:25:06to understand that, of course,
01:25:08these duties don't exist in a vacuum,
01:25:09and physicians are often the primary
01:25:11breadwinners for their families.
01:25:12And, you know, it's it's easy to just say,
01:25:15yeah, well,
01:25:15you just have to do the right thing.
01:25:16And and you know,
01:25:18if that means that you're fined or or
01:25:20you go to jail, well, then so be it.
01:25:22That's that's what you have to do.
01:25:24Well, you know,
01:25:24if you're the primary provider
01:25:26for your family as well,
01:25:27you also have very important obligations to,
01:25:29to your children and to your family and
01:25:30to other people dependent upon you.
01:25:32So.
01:25:32So I don't think that gives us carte
01:25:34blanche necessarily to tell physicians
01:25:36that they they have to disobey the law.
01:25:38But I do think there is a strong
01:25:40argument to be made for that.
01:25:41I think it does have to be done systemically.
01:25:43An organized way rather than than
01:25:46rogue individuals necessarily making
01:25:48making decisions because I think it
01:25:50will be much more powerful that way there.
01:25:53There's also,
01:25:53there have also been interesting calls
01:25:56for we talk about conscientious objection,
01:25:58but sort of the the OR basically
01:26:01saying I'm not going to provide this
01:26:03service because it goes
01:26:05against my conscience.
01:26:06The idea of conscientious
01:26:07provision or to say actually it is,
01:26:09it goes against my conscience not to provide
01:26:11this care and even though it's illegal.
01:26:13I want to be protected under a
01:26:15conscientious provision clause,
01:26:16much like they're conscientious
01:26:17objection clauses,
01:26:18so that those are, I think,
01:26:20some of the salient ethical dilemmas for
01:26:22physicians and other healthcare providers.
01:26:25And I I'm interested to see how
01:26:27that evolves as as we see these,
01:26:30these laws become implemented.
01:26:35Professor hurt, one for you.
01:26:38How would you respond to someone who said,
01:26:43for religious reasons, I believe,
01:26:46that a fetus is absolutely the moral
01:26:50equivalent to whether it's in solomont,
01:26:53whether it's a you know?
01:26:56Whether whether it's from scripture
01:26:58based or otherwise or or tradition based,
01:27:02I believe that this fetus.
01:27:05Is the same thing as a 2 month old baby.
01:27:09And therefore, not only would I not have
01:27:13an abortion myself because it would be
01:27:15the same as killing my 2 month old child,
01:27:18but I also think that it's my duty,
01:27:20my religious duty.
01:27:23To fight those who would make that happen.
01:27:27Umm.
01:27:28If if you were confronted by that
01:27:30question by someone,
01:27:31how would might you respond?
01:27:35You're muted. You're muted, gentlemen.
01:27:37Thank you. It's not a
01:27:38theoretical question. Obviously.
01:27:39That's a view that's pretty widely held.
01:27:43So I think in part I want to under
01:27:48score that that the traditions that
01:27:50they themselves are are embracing has
01:27:53always left room for regarding the
01:27:56fetus as an subjectively innocent,
01:27:59but objectively.
01:28:02Guilty aggressor whose life can be
01:28:05ended just like any other aggressor.
01:28:08When when life is under threat,
01:28:10and in that sense,
01:28:12even consistent with regarding
01:28:13the fetus as a full person there,
01:28:16there is room for there ought to be room
01:28:19for legal abortion in certain circumstances.
01:28:22Now that, of course,
01:28:24would provide a very limited justification,
01:28:27but I'm also inviting people of
01:28:29faith to delve deeper into their
01:28:32traditions and to recognize that.
01:28:34There's been shifts in views
01:28:36over time in terms of when we
01:28:39understand what what sort of moral,
01:28:42moral stratus we give to
01:28:44developing human life.
01:28:46And it's not that there is
01:28:48a traditional view on this,
01:28:49which is the current absolutist position,
01:28:52but it's much more complicated.
01:28:54And in fact,
01:28:55it may be much closer to something
01:28:57like some of the other views that
01:29:00were put out today about, say,
01:29:02something like a the the 14 day.
01:29:04View, perhaps,
01:29:05of where we say that there are
01:29:08points at which we could say
01:29:10it's not clear that what we have
01:29:12here is a human individual,
01:29:14and that we might want to say
01:29:17that either the notion that you
01:29:18want is either a person or not
01:29:21a person is too crude a moral
01:29:22distinction for us to be working by.
01:29:26Thank you very much professor
01:29:28Hurt and Doctor Hall and Attorney
01:29:31Kraschel and Professor Cohen.
01:29:33I thank the four of you very
01:29:35much for your time tonight.
01:29:36This was I've gotten so many
01:29:38compliments in my through my my
01:29:39texts on my phone and on the Q&amp;A
01:29:41that that this was a wonderful
01:29:43presentation by all four of you.
01:29:45I thank you so much.
01:29:46I thank you all for joining us and we
01:29:48have another session coming up in a
01:29:50couple weeks with a crew from Saint
01:29:52Justine and Montreal talking about
01:29:54how we follow pre term babies so.
01:29:57Something different to him.
01:29:58We'll be reaching out to you about that soon.
01:30:00Again, thank you to our speakers
01:30:01and thank you all for joining us.
01:30:03And I wish you all a good night.