The usually tranquil European abortion landscape has in recent weeks resembled a Jackson Pollack painting as Spain became embroiled in a nationwide one-week strike by abortion clinics. Marcy Bloom, a long time and respected advocate of reproductive rights, reporting on the crisis for RH Reality Check, focused on the strike in Spain as a response to the frequent persecution and stigmatization of physicians and women who seek abortion. I'd like to offer a second opinion and an ethical analysis of the Spanish case.
The full circumstances of the crisis bear repeating. In italics, I highlight some important information that was left out of Ms. Bloom's story. On November 26th, 2007, police agents searched four Barcelona clinics owned by Dr. Carlos Morin. The raid was ordered by the Court of Justice following a complaint by a Catholic anti-abortion group, e-Christians, which claimed abortions were being performed illegally. Dr. Morin had been shown on TV in a secretly recorded tape offering an abortion to a Danish woman who was in her seventh month of pregnancy, and explaining that "loopholes" in Spanish law that would make this possible. Further raids followed at other clinics; 13 people were arrested, including doctors and anesthesiologists. In Holland, a Dutch woman returning from Spain was arrested and charged with having undergone an illegal abortion. Almost all Madrid clinics were then raided — and a number of irregularities were allegedly found. These included forged signatures of physicians performing abortions, presigned blank medical forms signed by a psychiatrist who certified that the "patient" — unnamed and unexamined — suffered from a serious mental health problems that justified an abortion under Spanish law, and evidence of an attempt by one clinic to destroy medical records in anticipation of police action.
There is no doubt that the actions by Spanish authorities were excessive and in some instances possibly violated doctor patient confidentiality. Ms. Bloom does a service in pointing this out. At the same time, moral outrage requires equal attention to and a constructive critique of how Spanish abortion providers interpret and implement the highly flawed Spanish law.
Spain's Ambiguous Abortion Law
Under a 1985 Spanish law a woman can have an abortion during the first 22 weeks of pregnancy for fetal malformation or during the first 12 weeks in cases of rape. Abortion can be performed at any point in the pregnancy if an appropriate specialist physician certifies that the woman faces serious physical or mental health risks. Ms. Bloom says that abortions can "theoretically" be performed under this provision. In fact, they are performed and women travel from throughout Europe to Spain for late term procedures.
The Spanish abortion providers' association recognizes the ethical and legal dilemmas such a law places on them and the subjectivity involved in evaluating performing abortions as late as 26 to 32 weeks gestation based on an "assessment" of serious mental health risks. They have repeated asked the government to pass a law that would set a firm gestational limit and eliminate the need for certification of risk. The providers' association has also established internal guidelines that prevent members from performing abortions beyond 26 weeks of pregnancy, two weeks beyond the most liberal European law, that of the UK.
This is not the first time that Spanish law has come under international scrutiny. In 2005, an undercover reporter for one of the UK's more scurrilous tabloids was referred by the Bpas, the largest non-profit provider of abortion services in the UK, to Spain for an abortion at 26 weeks. Once in Spain, the reporter did not claim any mental or physical health problem, but was told by the Spanish clinic that this was not a problem; the clinic would simply say there was a risk to her health and perform the abortion. British health authorities investigated Bpas and ruled that they had broken no laws, although Sir Liam Donaldson, the Chief Medical Officer who conducted the inquiry recommended, that Bpas tighten its procedures before referring women beyond 24 weeks, the legal limit in the UK abroad.
What Gestational Limits Are Reasonable?
For advocates of a woman's right to choose and especially those who provide abortions, the Spanish case is not an opportunity to laud courageous doctors (although there are plenty of those). Rather it is an opportunity to examine whether any gestational limits on abortion are reasonable and the circumstances under which protocols designed to ensure evaluation of medical and psychological conditions are ignored in pursuit of deeply held beliefs about women's rights. When is civil disobedience justified?
This is not just a question Spanish providers ask. The Supreme Court's trimester frame in both the Roe and Doe decisions require that American providers make tough decisions in the third trimester. Roe allows states to ban third trimester abortions unless the woman's health is at risk. In Doe v Bolton, the Court defined the health exception quite broadly. Associate Justice Blackmun stated in Doe that "the medical judgment [of health] may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman's age – relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he (sic) needs to make his best medical judgment."
And so, I asked myself: Why do I find the Spanish (and US) clinics' broad interpretation of "serious mental health risks" ethically problematic when I have absolutely no problem with the hundreds of doctors and clinics throughout Latin America, Africa and Asia that are routinely breaking the law and providing safe first trimester abortions to women throughout these regions? When a Spanish clinic certifies that a physically healthy woman more than 24 weeks pregnant with no clinically determined mental health problem has a "serious mental health risk" that justifies an abortion are they playing fast and loose with medical ethics and the law or just acting on their conscientious belief that carrying a fetus to term, no matter what stage of pregnancy you are in when you don't want to is ipso facto a serious mental health risk?
What Does "Clinically Justified Mental Health Risk" Mean?
I had to unpack the question. What did I mean by "healthy women" and "no clinically justified mental health risk"? These are subjective criteria. I am sure my colleague and favorite intellectual sparring partner Ann Furedi of Bpas (with whom I have shared this article) believes that being 16 years old, out of school and having avoided admitting you are pregnant for 7 months constitutes a serious mental health condition. Further, I bet she believes that even a 26 week pregnant lawyer who changed her mind because she was offered a human rights post (or a good corporate job) in Uganda has a very good reason to have an abortion at 33 weeks. And then there are the few people I've met who sincerely believe that a fetus being carried by a woman who decides she does not want to be a mother is better off not being born. Some health professionals believe that a pain-free life is a human right and women have a mental health right to avoid any emotional discomfort or suffering that might occur if they were denied an abortion at any stage of pregnancy. And of course, there is the principle that reproduction is a completely private matter and that the there should be no laws related to abortion. Women can be trusted and when it comes to reproduction the law should trust them absolutely.
None of these opinions can be rejected out of hand. It is difficult to bite the bullet and say one would tacitly force any woman, no matter how pregnant, to carry to term a fetus she can't accept. But respecting women as well as holding medical and social services providers accountable demands that tough issues be discussed. Movement leadership requires that one express opinions about the moral as well as the legal issues of our time. Strong advocacy of a legal right to choose does not require silence on what is moral. Civility demands that one find a way to express views about morality in a way that does no harm and acknowledges that more than one view is respectable.
Reproduction is both a private act and a social phenomenon with public consequences. We want doctors to perform abortions, nurses to assist at the procedure, counselors to be there for women and states to pay for the procedure. At the same time, doctors should not become machines whose only function is to fulfill every patient's every wish. Women are also strong competent moral agents who have made the decision to have abortions or babies regardless of what anyone else thinks. There is nothing even the cruelest anti-abortionists have said that women seeking abortions have not themselves thought. Doctors, even those we consider heroes, are not perfect and feminists have been criticizing them for years, with good cause. The decisions of Spanish doctors are rightfully subject to public reflection and approval or disapproval.
Balancing the Public/Private Dichotomy in Abortion
Advocates of choice will have different views on whether and how to balance the private/public dichotomy in relation to abortion. Setting legal limits on abortion rights is not automatically to be condemned. For me, a legal limit that gives women ample time to decide honors both women's rights and a growing social concern about treating viable fetuses as if they had no claim on our humanity. Accepting that some women and girls will not meet the legal limits and not get an abortion may make us sad but is not wrong. It makes me sad that some women can't find the money to pay for even a first trimester abortion, but I don't conclude that the clinics that do not provide free abortions for all who have financial hardships are responsible for forcing them to carry a pregnancy to term.
This brings me back to those among the Spanish abortion providers who believe that the current requirement for certification of serious physical or mental health risks is routinely applicable at all stages of pregnancy. Should the abortion rights movement endorse this approach?
The Spanish providers who called for the one week strike don't think so. They favor an abortion on request law without the need for any certification. If such a law existed they are willing to accept a gestational limit.
In a European context, this could be as early as 16 weeks or as late as 24 weeks. While a strong ethical argument for no gestational limits can be made in principle, many factors need to be considered before one seriously adopts this approach. Among the questions that would need to be answered are whether abortion throughout all nine months of pregnancy is necessary for women's freedom and bodily autonomy and whether such a principled position compromises legality at earlier stages of pregnancy and of course whether it is achievable. A commitment to democracy also requires some respect for compromise and negotiation in contested areas – and abortion is surely one of those areas.
Until the time that Spanish advocates achieve their goal of abortion on request within a reasonably defined gestational limit, I believe abortion providers should voluntarily take a moderate approach to interpreting the Spanish law consistent with the change they seek. That means that abortions beyond 24 weeks gestation should not be performed unless there are serious physical or mental conditions that make continuing the pregnancy a demonstrable danger to the woman. The evaluation of these conditions should not be routine, nor should the facile and not-quite-accurate claim that pregnancy is always medically more dangerous than abortion be used as a fall-back excuse. Women deserve to have their health conditions medically evaluated by specialists who treat each case individually and have no prior bias for or against abortion.
When Is Civil Disobedience Justified?
The disrespect for the norms of the law demonstrated by Dr. Morin and expressed to his patients is unacceptable. How, you may ask, is it different from the disrespect of the law demonstrated by those who provide safe illegal abortion services in the developing world? What standard does one use to judge some violations of law heroic and others unacceptable?
In the case of the heroic services provided by doctors in the developing world, the consequences of not performing those procedures include death, serious health injury, and economic deprivation to the woman and her existing children. These consequences are demonstrable. What about declining to perform an abortion for a healthy woman or adolescent in Europe? The undercover clients who "set up" Dr. Morin and Bpas, if they represent any of the women who make their way to Spain, demonstrated no compelling economic or medical reasons for the abortion or for their delay in seeking an abortion, no fetal abnormalities and a high degree of competence in managing getting to the clinics. So to turn such women away is not insignificant, but does not justify bending the law.
Poor women in Europe do not find their way to the Spanish clinics when they find themselves 26 weeks pregnant, as they simply do not have the 4,000 plus euros such procedures cost. Poor women in the US face similar financial challenges in obtaining post 24 weeks abortions which cost from $5,000 to $7,500.
Those who get these abortions are adolescents who denied or were unrealistic about their pregnancy and whose parents can raise the money. In these cases, exceptions need to be considered, but it should not be automatically assumed that every adolescent is better off with a late term abortion than a baby. There will be many contributing factors to both adolescent and adult women's delay in seeking abortions, including ambivalence. Adolescents also need to be protected from parents who coerce abortion as well as from those who want to prohibit it.
Every week, those of us who are pro-choice are faced with new circumstances that should cause us to think about how those circumstances affirm or change our core principles. Do our boundaries shift? In this sense, I hope we never reach a point when abortion is routine or uncontested. Moral and ethical deliberation takes place best in a non-coercive climate of legality: the need individuals, women, doctors, clinics have to evaluate the morality of specific acts and the fact that is some cases one will decide that certain acts are immoral does not mean abortion should become illegal. At the same time, respect for autonomy in moral decision making does not require that abortion be legal for any reason up to the swinging doors of the birthing theater.