The Hand That Rocks The Cradle: A Response to Donald Hope

Author:	Katherine C Sheehan B.A., M.A., J.D. (Harvard) Associate Professor, Southwestern University School of Law, Los Angeles, California
Subjects:	Abortion Law and Legislation United States Cases (Other articles) Abortion United States (Other articles) Roe v Wade (Other articles)
Issue:	Volume 6, Number 1 (March 1999)
Category:	Refereed Articles

Contents

• Introduction
  
• Defining the Abortion Controversy
  
• An Unscientific Method
  
• Neutral Scientific Facts?
  
• The Hand Is Quicker Than The Eye
  
• The Hand That Rocks the Cradle
  
• The Viability of Viability
  
• Conclusion
  
• Notes

Introduction

1. In his article, The Hand As Emblem of Human Identity: A Solution to the Abortion Controversy Based on Science and Reason,[1] Donald Hope argues that the United States Supreme Court was wrong in concluding, in its landmark decision Roe v. Wade,[2] that under the U.S. Constitution a state cannot override a woman's right to terminate her unwanted pregnancy until the fetus she is gestating is "viable"-that is, capable of surviving without her, approximately twenty-eight weeks[3] into the pregnancy at the time Roe was decided, possibly twenty-two to twenty-four weeks today. Hope does not quarrel with Roe's holding that, at some point short of birth, a state's generalized interest in potential life overrides a woman's moral judgment about her own pregnancy, or that the identification of that point is a function of fetal development. He merely objects that Roe drew the line between abortions the state must permit and those it can prohibit at the wrong point in gestation, arguing that the viability line is arbitrary, vague, and permits abortions that border on infanticide.

2. As an alternative to Roe, Hope proposes that states should be permitted to ban abortion after the point when the embryo has been fully differentiated into its basic structures and may be designated a fetus-about the end of the eighth week of gestation. Because Hope claims to find this solution-which, if adopted, would outlaw half the abortions taking place today-in science (specifically, developmental biology) and reason, it is worthwhile asking how Hope defines that controversy and how it is that science and reason might be thought to provide this solution to it.

   Defining the Abortion Controversy

3. Hope's definition of the abortion controversy does not seem to lend itself to resolution by science or reason. Rather, Hope formulates the sort of "question presented," found in a good adversarial legal brief, one that attempts to direct attention away from potentially relevant contrary authority and to limit what can count as an acceptable response: "At what point in the course of human development does termination of a developing life become a matter of public concern rather than a strictly private decision?"[4]

4. To the extent this question is subject to empirical investigation at all, political scientists or sociologists would seem more suited to the task than biologists. If the question is understood to mean "at what point in the course of human development should termination of a developing life become a matter of public concern rather than a strictly private decision," it seems, on its face, even less amenable to scientific study. Moreover, as a definition of the abortion controversy, Hope's question presupposes the resolution of such a large number of hotly contested moral and legal disputes that any answer he might propose could only satisfy persons already entirely in agreement on all relevant issues-hardly an effective resolution to a debate "so polarized that reasonable people cannot disagree without becoming disagreeable."[5]

5. Implicit in Hope's definition of the abortion controversy are, among many others, the following unstated premises: (1) the termination of developing life is not a matter of public concern at all points in the course of human development; (2) the public becomes concerned with the termination of developing life as a function of that life reaching some point in the course of human development; (3) an issue cannot be both a matter of public concern and a private decision;[6] and (4) when the termination of developing life becomes a matter of public concern it can and, presumably, should be prohibited. Each of these assumptions is a conclusion to an argument Hope does not make, not a premise he can presume is shared by all who are interested in resolving "the abortion controversy."

6. Hope's belief that developmental biology can provide an answer to the abortion controversy as he frames it presupposes many other contestable propositions: (5) both the nature of scientific knowledge and the direction of scientific exploration are unaffected by contested values relevant to abortion;[7] (6) values are arbitrary unless anchored to observed scientific facts; (7) values anchored to observed (or observable) scientific facts are not arbitrary; (8) the choice of which scientific discipline is most likely to provide an answer to Hope's question can be made in a way that does not take for granted part of all of the solution supposedly being sought; (9) the scientific study of embryos and fetuses, rather than the scientific study of pregnant women, is relevant to the resolution sought; and therefore (10) developmental biology rather than, for example, psychology, anthropology, or medicine, is the appropriate scientific discipline through which to search for the answer to the abortion controversy.[8] For Hope's effort to be a valid scientific exercise, he would at a minimum have to make all of his assumptions explicit.

7. Hope not only fails to spell out the presuppositions shaping his inquiry, he also fails to pose his question in terms science might be able to answer. Hope complains about a certain amount of inaccuracy in the biological references made by abortion courts and commentators, particularly in the use of the word "fetus."[9] Although he contends these errors illustrate the "general confusion about the biological substrate of the abortion controversy," he never defines that controversy in a way that calls for a knowledge of biology for its resolution. It is therefore never clear what information science needs to supply to help resolve the controversy, why ontogeny is the place to look for that information, or what thesis Hope expects that information to prove or disprove.

   An Unscientific Method

8. "Scientists," Hope writes, "develop hypotheses about the natural world from prior knowledge, intuition, or mathematical prediction. They then test these hypotheses through a formal process of experimentation."[10] Thus, to proceed scientifically, Hope must devise a testable hypothesis and then submit it to science for proof or disproof. The hypothesis that "the termination of a developing life becomes a matter of public concern rather than a strictly private decision" after eight weeks of gestation, is not one science can test.

9. The nearest Hope comes to articulating a hypothesis suitable for scientific testing is in a discussion of "pro-choice logic" which, when "it is asserted that the fetus is a being too primitive and undeveloped to deserve legal protection" has "a headlong collision with the biological facts."[11] Hope here formulates a "pro-choice" hypothesis that a fetus "is primitive and undeveloped," then refutes it with scientific evidence that by the middle of the second trimester of gestation a fetus "has well-developed facial features, arms and legs, hands and feet, fingers and toes. . . . It is responsive to light and sound. It has well developed external genitalia."[12] Here, as elsewhere, Hope conflates fetuses at twenty weeks of gestation, accounting for a tiny fraction of abortions, with fetuses ten or more weeks earlier, the abortion of which Hope's rule would also prohibit, so even accepting all his premises his proof lacks rigor. In any event, the biological facts provide no evidence to prove or disprove a hypothesis that "primitive and undeveloped" beings deserve no legal protection, or that beings deserving no legal protection can be aborted. Science can provide information about physical processes, but it cannot prove or disprove the moral value of that information or determine when and why those processes should be a matter of public concern.

10. More to the point, what Hope calls "the pro-choice logic" in this argument misstates the pro-choice position (which, as the name implies, is pro-choice, not anti-fetus). Hope's own earlier account of the pro-choice position makes no reference to the physical features of the developing child; instead, he accurately describes the pro-choice concern with women's freedom of reproductive choice, the profound impact of pregnancy and motherhood on both a woman's physiology and her life choices, and the recognition that women's responsibility for bearing and rearing children should be undertaken freely and not forced upon them against their will by the state.[13] These arguments might conceivably be drawn into question by reference to scientific facts about pregnant women and mothers, but Hope offers no such facts-Hope's article is entirely barren of any information about the women who would be denied abortions under his proposal.

11. Biological facts of ontogeny are irrelevant to and thus can neither prove nor refute the pro-choice arguments Hope describes. In apparent recognition of this problem, but unwilling for some reason to turn to facts about pregnant women for his argument, Hope recharacterizes the pro-choice position to be a mere assertion that abortion must be permitted because a fetus is too primitive to deserve legal protection. This is not the pro-choice position and it demeans the women who seek abortions as well as those who would allow them this right to suggest that it is. This caricature of the pro-choice argument devalues human life as well, suggesting as it does that human worth depends in some way on our fingers, our faces, or our ability to suck, swallow and squint.[14]

12. Far from being the pro-choice position, the "primitive fetus" hypothesis Hope refutes appears to be a minor misapplication of his own underlying theory: that a being's entitlement to respect and protection depends on its physical characteristics. That this is Hope's position is indicated by his statement that "the pro-choice logic makes a strong case when applied to the pre-embryonic and embryonic stages of development,"[15] in support of which he offers a variety of scientific facts about the uncertainties of fertilization, implantation and cellular differentiation.[16] Hope's primary objection to Roe is that it requires states to permit abortion until a fetus is viable. Viability, understood as "the ability to breathe air . . . is not what makes humans unique or worthy of special respect. . . . Thus, the viability standard purports to mark the 'compelling' stage in fetal development at a point that has little to do with what makes a fetus human, with the emergence of unique human traits."[17] Rather, Hope believes, "what makes us uniquely human are sic the presence of certain characteristic structures that appear developmentally at the transition from embryo to fetus."[18]

13. Hope's hypothesis for the solution of the abortion controversy, then, is that the termination of developing life becomes (or should become) a matter of public concern when that life has observable uniquely human structures. "These uniquely human structures are the hand with an opposable thumb and the brain with a large neo-cortex."[19] Is any part of this hypothesis subject to scientific verification? No doubt science could determine whether the opposable thumb and large neo-cortex are uniquely human, given sufficiently rigorous definitions of "opposable," "thumb," "neo-cortex" and "large," but Hope does not report any data tending to prove or disprove these points. Nor does he offer scientific proof that human culture as we[20] know it depends on our possession of these uniquely human structures, a proposition no one is likely to dispute, although testing it would seem to require a control group of beings lacking opposable thumbs and large neo-cortexes but identical to humans in all other material respects living under substantially the same circumstances for a sufficiently long time. But, as Hope concedes,[21] science cannot determine what value to place on human life or its component parts. What use, then, does Hope make of science in advancing his argument?

    Neutral Scientific Facts?

14. Rather than appeal to the scientific method to find a solution to the abortion controversy, Hope uses science as a source of what he calls "neutral scientific facts."[22] No fact, standing alone, is scientific, or even neutral.[23] Facts cannot be neutral, because the articulation of any fact is necessarily the product both of our perceptual apparatus and of our linguistic abilities and limitations. "What counts as a fact-as reality-will thus vary according to culture, institutional perspective, and so on."[24] Facts, moreover, are scientific only when they are offered as evidence to prove or disprove specific hypotheses,[25] a feat Hope never quite manages to accomplish.

15. Hope, however, seems to believe he can sort the empirical world into scientific and non-scientific, neutral and non-neutral facts. A woman's beliefs about her own pregnancy, how she values it, are not neutral scientific facts.[26] Data about fetal fingerprints[27] and electrical activity in the neo-cortex,[28] obtained by means of "new imaging technologies"[29] and electroencephalography[30] are neutral scientific facts. Reading between the lines of Hope's essay one gets the unmistakable impression that it was not until the invention of new imaging technologies that man knew what was really going on in pregnancy and could make reasonable scientific judgments about it.[31]

16. According to Hope, the abortion controversy is about belief and values: when does the termination of developing life "become a matter of public concern."[32] Values, beliefs and concerns are not facts at all. Values, beliefs and concerns, however, are rational so long as they are anchored to scientific facts; otherwise they are arbitrary or, at best, matters of religious faith.[33] Thus, the belief held by many that human life is entitled to respect and protection from conception forward is not rational because it does not rely on scientific fact.[34] Moral concern or empathy for eight-week-old fetuses, however, is rational because it is based on facts of ontogeny-that fetuses move and have fingers.[35]

17. Once Hope has rooted a value judgment in neutral scientific fact, he does not subject to further challenge either the rationality of the judgment or the quality of its link to the facts. The legal value of life, for example, is culturally created, according to Hope, but "this does not mean that we value life on an arbitrary scale."[36] The law's relative valuation of different sorts of life is rational because "the law places a higher value on life as one progresses up the evolutionary scale."[37] Hope takes it as self-evident that correlating moral value with evolutionary achievement is not arbitrary, despite the truly magnificent counter-example he draws from the movie 2001: A Space Odyssey, in which our "proto-human ancestor" is depicted using his newly evolved "hand-brain complex" to crush another hominid's skull.[38]

18. With a similar lack of intellectual rigor, Hope withholds public concern and legal protection from a human embryo, which is indisputably a form of human life and a potential bearer of opposable thumbs and a large neo-cortex, but bestows it on a fetus after eight weeks of gestation, which is no more or less a participant in human culture than its embryonic cousin, despite its tiny hands. If the potential to become uniquely human entitles the fetus to protection, it should perform this service for the embryo as well. If, instead, public concern and legal protection attach only when the potential participation in human culture becomes actual, it is not at all clear this event precedes birth.[39] Because Hope, having tied his neutral solution to scientific fact, questions the rationality of his argument no further, he does not explain why the distinction between potential hands and visible but only potentially functional hands is one of such moral importance. It can't be that the mere visibility of fetal hands makes the moral difference, although Hope often suggests that this is the case,[40] because fetal hands are not actually visible-until abortion, a fetus's mother gets in the way of the observer's view, a fact of human development Hope often seems to overlook.[41]

    The Hand Is Quicker Than The Eye

19. Thus, despite all his invocations of science and reason, Hope's argument is neither scientific nor particularly well-reasoned. Hope uses biology the way a magician uses a wand, to create a scientific impression while achieving a number of entirely unscientific results. First, Hope's repeated references to fetal fingers and toes invokes the image of fetus-as-baby. Rosalind Pollack Petchesky has written at length on the meaning and use of fetal imagery in anti-abortion advocacy and the public discourse.[42] Among other effects, this carefully cultivated picture of the baby-fetus encourages all former fetuses to identify with it, to empathize with it, to protect it from harm.

20. Indeed, Hope's chief contribution to abortion rhetoric may be his discovery of a way to link abortion restrictions based on "brain birth" to the far more appealing imagery of tiny fetal fingers and fists.[43] Whether or not one finds the presence of electrical activity a persuasive argument against abortion, it is a feature that is hard to picture and sounds like it is shared with small kitchen appliances.[44] By recognizing that fetal hands emerge simultaneously with initial electrical activity Hope has brought much of the power of pro-life polemics to bear in support of the brain birth theory. However, encouraging the reader to view abortion as a threat to his or her own life is unlikely to enhance the quality of anyone's moral reasoning. Hope frankly concedes that the creation of empathy with the fetus is an aspect of his argument.[45]

21. Second, the same intense focus on the image of the fetus and its features completely obscures the image of the mother, implying that she is physically and morally irrelevant to the development of the child. Like the image of the "star child" of the movie 2001, floating in space, free of any maternal involvement, Hope's descriptions of the "external form"[46] of the developing child render its mother literally invisible. The "external form" of a second-trimester fetus is that of its mother, yet Hope's account of the biological facts of pregnancy completely omits any mention of her.

22. Petchesky has noted the severe rhetorical handicap under which pro-choice advocates labor due to the lack of a powerful image to counter that of the baby-fetus.[47] One might think that the frightened pregnant teenager, facing the sudden end of her own childhood in responsibility for another's, or the poor single mother, wondering how she will manage to love and care for another child when one is already such a struggle, would be two such sympathetic images. Instead, the public discourse seems to recognize no greater threat to "family values" than that irresponsible layabout, the unwed mother.[48] Compounding the reader's identification with the fetus, therefore, is a disinclination even to attempt to see abortion from the mother's point of view, despite the fact that it is the only point of view actually available.[49]

23. Third, Hope's graphic accounts of the mechanics of abortion at various stages of fetal development serve no purpose but to horrify the reader.[50] Images of late-term abortion procedures, which sometimes require that the fetal skull be collapsed to avoid injury to the mother, haunt Hope's piece. [51] Most surgery is distressing to the lay observer,[52] but medical science does not weigh this fact in determining the most effective treatment for a patient,[53] and physicians ordinarily work to shield their patients from contact with more disturbing procedures.[54] The "gruesome" nature of late-term abortion is not a scientific argument against it; if Hope intends to ground a philosophical or moral argument on this basis he should acknowledge that that is what he is doing, and argue it accordingly. Moreover, the vast majority of abortions that would become illegal under Hope's proposed rule are those that now occur between weeks eight and twelve, to which Hope's constant reference to late second-trimester abortions are simply irrelevant. Hope never explains why, because abortion at twenty-four weeks is gruesome, women who are ten weeks pregnant, or twelve, or fifteen, should be compelled to become mothers.

24. Fourth, throughout his essay Hope blurs the significant differences between first-trimester fetuses and those nearing viability, as he does in connection with the mechanics of abortion. At one point, for example, he describes in detail the child-like characteristics of a fetus after twenty weeks of gestation, then concludes, "thus, the pro-choice argument is compelling when applied to early stages of embryonic growth, but is open to increasing criticism as development unfolds into the fetal stage,"[55] implicitly equating the eighth week of gestation with the twentieth.

25. A similar ontogenetic confusion plagues Hope's discussion of "brain birth." Hope supports his argument that abortion may be prohibited when recognizable fetal hands develop by asserting that this event occurs simultaneously with "brain birth."[56] Hope argues that there is "a powerful analogy and symmetry in proposing that if human life is valued and legally protected up to the point of brain death, then brain birth marks the point at the other end of the life cycle where the human being deserves to be valued and legally protected."[57] The symmetry between brain birth and brain death, although superficially appealing, is not a strong one. Death marks an absence of life with no potential for future biological life, a state bearing no resemblance to that of a pre-birth embryo or fetus, which is certainly alive and may even be said to be defined by its potential for future life. Because the ordinary context for a determination of brain death involves the life of a person thoroughly entwined with familial, cultural, social, economic, legal, religious and a thousand other ties and meanings, it cannot usefully be compared to a decision about the status of an entity who has yet to see the light of day.[58]

26. "Brain birth," moreover, is not a scientific term.[59] Indeed, "brain death," itself is an imprecise reference to one of several methods of diagnosing death.[60] In his discussion of brain birth, Hope not only fails to acknowledge any dispute as to what constitutes "brain death," he also disregards the variety of possible applications of the theory to fetal brain function, failing to distinguish among inchoate electrical activity in embryonic brain cells, apparently detectable after seven or eight weeks of gestation,[61] minimally organized activity in the developing cerebral cortex, which does not emerge before the twentieth week,[62] and recognizably human electroencephalographic readings, not found until week thirty-two.[63]

27. Distinguishing among these events is scientifically required, in that each represents a very different state of fetal development. This distinction is also important if Hope's argument depends on a concern that the fetus might feel pain during its abortion,[64] a possibility that does not exist at week eight but is highly likely by week thirty-two,[65] or on a contention that the fetus at some point develops a "self,"[66] which probably does not occur until sometime after birth.[67] Moreover, Hope's imprecision in his references to brain activity gives his argument an appearance of consistency and scientific objectivity that it does not, in fact, have. Advocates of "brain birth" as the event marking the end of a woman's right to choose abortion have identified both eight weeks[68] and twenty[69] as the critical point; Hope treats all references to "brain birth" as unambiguously indicating eight weeks without acknowledging the discrepancy.[70]

28. None of Hope's misdirections, confusions, and conflations is harmless error. Rather, Hope manipulates scientific facts to inflame the reader's emotions, distract the reader from relevant considerations, and skew the argument in favor of his proposed rule. Ignoring the differences between the ninth and twentieth weeks of gestation enables Hope to support his argument for an end to abortion after week eight with arguments applicable only as the fetus nears viability. Most importantly, Hope purports to seek a solution to the abortion controversy in "neutral scientific fact" without considering any facts about pregnant women and girls and without justifying or even acknowledging this omission. An unsupported determination that scientific facts about developing fetuses are relevant to the abortion controversy while scientific facts about pregnant women and girls are not is neither neutral nor scientific.

    The Hand That Rocks the Cradle

29. Hope's focus on ontogeny as the relevant field of study for resolution of the abortion controversy assumes the outcome of virtually all the moral questions fueling abortion disputes to which he purports to be seeking a neutral solution. To see that this is so, compare to Hope's formulation this very different version of what ought to be the same question: When should a person be forced to become a mother? An investigation designed to answer this question would look for information about women and girls and the meaning of motherhood, not blastocysts and zygotes. What do the scientific facts demonstrate about the women who need the abortions Hope would deny them?

30. All studies show that existing contraceptive methods are inadequate to insure a woman control over her own fertility.[71] Sixty percent of U.S. abortions are associated with contraceptive failure.[72] Even in countries where contraceptives with low failure rates are widely available, the majority of pregnancies are unintended or mistimed.[73] Many women are unable to use contraception to prevent pregnancy because they lack access to contraceptive services, suffer side-effects and complications from contraceptive use, or are poorly educated about risks and benefits."[74]

31. About half of unintended pregnancies in the United States end in abortion.[75] Over twenty percent of these abortions are obtained by teenaged girls,[76] well over half by women and girls under twenty-five.[77] Less than twenty percent of women and girls obtaining abortions are married, but more than half already have at least one child.[78] As of the beginning of this decade, women and girls with family incomes under $11,000 were four times more likely to need abortions than those with family incomes over $25,000.[79] At least one study reports that two-thirds of US abortion patients have family incomes under $25,000.[80] Nevertheless, almost two thirds of women and girls obtaining abortions are employed.[81]

32. Hope concedes that his proposal allowing abortion to be banned after eight weeks of gestation would prohibit half of the abortions that now take place [82] (indeed, he seems to regard this effect as one of the virtues of his solution).[83] He asserts that his proposal is nevertheless "pro-choice"[84] opining that "it is probable that under a more restrictive standard many women would change their behavior to adapt to a more limited freedom."[85] This conclusion is belied by the scientific facts Hope declined to consider.

33. The involuntary motherhood Hope's standard would impose would not be distributed evenly over the population of pregnant women; instead, it would fall most heavily on the girls and women least able to "change their behavior to adapt to a more limited freedom." Today, two-thirds of children aged fifteen and under who obtain abortions do so after the eighth week of pregnancy,[86] and well over half of all abortions performed for teenaged girls occur after the eighth week.[87] Teenagers are twice as likely as adults to put off confirmation of their pregnancies.[88] Teenagers delay dealing with their pregnancies because they are ignorant and confused about their own bodies and don't know they are pregnant,[89] because they are unaware of available, confidential health care or anxious about approaching strange institutions with their problems, [90] because they are afraid to tell their parents they have been sexually active,[91] and because of the enactment of foot-dragging abortion control legislation mandating extensive parental or judicial involvement in teenagers' abortions.[92] There is no reason to suppose that any of these conditions would change except, perhaps, to further lengthen delay, under Hope's regime of "more limited freedom."[93]

34. Hope's rule would also fall heavily on poor and minority women and girls. One study of women obtaining abortions after sixteen weeks of pregnancy found that almost half had had to wait until they could raise enough money to pay for the procedure.[94] African-American women are five times more likely to be poor and substantially more likely to delay abortion past the eighth week.[95] None of these factors is within the control of the women facing unwanted pregnancy, and none is likely to change, except for the worse, in response to Hope's "more limited freedom."

35. Nor is it clear what behavioral adjustment Hope anticipates women will make in response to a more limited freedom. In light of the facts noted above, it is, at best, implausible (and at worst, contemptuous) to suppose that the forty percent of women who now obtain abortions during weeks nine through twelve of pregnancy could, if they were just a little more decisive, energetic or diligent, take care of the matter by week eight. Perhaps Hope thinks women faced with greater restrictions on access to abortion would try harder not to become pregnant, but again, the scientific facts suggest this is also unlikely to work in light of the findings linking pregnancy to contraceptive failure.

36. One group of women who now obtain abortions after the eighth week of pregnancy includes women who learn through amniocentesis or other testing that the genetic abnormalities carried by the parents have been transmitted to their unborn children. Testing for such abnormalities is premised on the availability of abortion to prevent the birth of deformed and doomed children in the relatively small percentage of cases where the defect has indeed been passed on, but the results of genetic screening are currently unavailable until the second trimester of pregnancy.[96] Unlike all the other consequences of his proposed rule, which he ignores, Hope acknowledges that reducing (more accurately, eliminating) the time available to detect fetal abnormalities would be "a serious consequence of an eight week abortion threshold."[97] He breezily asserts that "medical practice would shift towards tests and methods that would detect abnormalities within the earlier window"[98] were his rule to be adopted. Medical practice, however, has never shown any particular inclination to adapt to the needs of women-if it had, unwanted pregnancy would not be the problem that it is-and there is no reason to suppose it will do so now. Hope's rule, therefore, will have the perverse result of encouraging abortions among couples carrying genetic defects: unable to know in time to terminate the pregnancy whether they have escaped transmission of the abnormality, many such women will abort all pregnancies rather than gamble with their unborn children's fate.[99]

37. What will happen to the other women who cannot make even this unsatisfactory adjustment to their more limited freedom? Some, disproportionately poor girls and women of color, will die from illegal abortions, as they did in the days before Roe. Before Roe legalized abortion everywhere in the United States, seventy-five percent of all women who died of illegal abortions were women of color; in the two years immediately before Roe the death rate from illegal abortions for women of color was twelve times the rate for white women.[100] Hope's rule is likely to intensify this disparity by rewarding those with money, time and access to adequate abortion services[101] while punishing the disadvantaged, in effect drawing a line between the quick and the dead.

38. Many other women will have babies against their will.[102] Already poor, they will be poorer. Already disadvantaged, they will suffer greater impediments to education and employment.[103] Already disempowered, they will be further oppressed by the knowledge that they have nothing to say about the most fundamental aspects of their physical, emotional and economic lives.

39. Perhaps one might ultimately conclude that the terrible impact an end to reproductive choice after eight weeks of gestation would have on thousands of women, girls and their families, is outweighed by the respect demanded by beings with opposable thumbs. It is hard to understand, however, how a rational argument for that rule based on science and reason could omit any mention of these effects.

    The Viability of Viability

40. As noted above, not everyone interested in resolving the abortion controversy would agree with either Hope's definition of the problem or the direction in which he looks for its resolution. Can those who share none of his underlying premises nevertheless find common ground with Hope? Perhaps surprisingly, the answer is yes. Hope is quite correct in his contention that the viability rule, ending a pregnant woman's right to reproductive choice when her fetus becomes capable of survival without her, makes no sense.[104]

41. Hope is right that there is no defensible reason to end the right to abortion when the fetus is viable. As he correctly observes, humans are not really viable when we are born, and require intensive care for years thereafter if we are to have any chance of survival.[105] (Characteristically, Hope fails to note that most of this care is provided by the children's forgotten mothers.) Hope is also correct in noting that the highly dubious premise that a fetus might be able to survive without its mother after twenty-four weeks of gestation does not at all compel the conclusion that the mother should therefore be required to continue to care for that child against her will.[106]

42. The rule ending a woman's right to reproductive choice when her fetus is viable is not without its defenders, however. After a meticulous examination of the question of a fetus's legal personhood, Professor Jed Rubenfeld of Yale Law School concluded that the Roe Court's selection of viability as the end to the abortion right probably could not be improved upon.[107] Approaching the question from a very different angle, moral philosopher Bonnie Steinbock argued that a fetus first becomes capable of having interests that might be injured by abortion after about twenty-four weeks of gestation, not because it is hypothetically viable at that point, but because it the physical structures supporting sentience or the awareness of sensation are then in place.[108] From still another perspective, Law Professor Robert D. Goldstein of the University of California Los Angeles has noted with approval that the viability standard allows the pregnant woman enough time to decide, as representative of the mother-child dyadic unit, whether birth is in the best interests of both.[109]

43. As a practical matter, however, very few abortions are sought or performed anywhere near the time when the fetus is viable. Very few providers perform abortions after twenty weeks of gestation.[110] The vast majority of abortions are performed before the thirteenth week, while less than one percent occur after the sixteenth week.[111] Women who end their pregnancies after six months do so because their own lives and wellbeing are threatened, because they believe the children they are carrying will be too deformed or disabled to lead truly human lives,[112] or because they are themselves children, disturbed, or otherwise incompetent to deal with pregnancy, childbirth and motherhood.[113]

44. Thus, the Roe Court's ruling, reaffirmed in 1992 in Casey, that abortion can be prohibited once a fetus is viable, actually interferes with very few abortions. To the extent that the viability rule prevents any abortions, it tends to insure that those least able to care for children will be required to have them.

45. Roe's viability rule, however, has a consequence more important and far-ranging than its effect on particular abortions: it inscribes (perhaps more accurately, emphasizes) in the United States Constitution a lack of respect for women and mothers. The viability rule permits a state legislature to override a mother's own moral determination that she should end her pregnancy, on the grounds that a generalized state interest in "fetal life" outweighs a mother's interest in her own life and that of her child. On an issue that all seem to agree is a moral one, the viability rule stands as a statement that women lack the judgment required to make the decisions that matter most to us. By limiting women's right to reproductive choice at any point short of birth, the Court demeans the women charged with responsibility for the children who will or will not be born as the result of these choices.

46. By pinning the limits of women's moral judgment to a fetus's wholly hypothetical ability to survive without its mother, the viability rule further offends the women whose bodies and souls bring children to life in at least two ways. First, by explicitly according greater weight to fetal physiology and medical technology than to any understanding, value, or belief a woman might have formed, based on whatever information she considered important, in consultation with whomever she chose to involve, the viability rule imposes its own meaning on pregnancy and gestation-a peculiarly scientific meaning-and denies the woman the right to understand pregnancy and motherhood from her own point of view.[114] Second, the viability rule trivializes the unique achievement of a mother bearing a child by equating it to what can be accomplished through advances in medical technology, as if the contribution of the former could be duplicated by the latter, given sufficiently well-equipped neonatal intensive care units.

    Conclusion

47. Thus, Hope is right that Roe's viability rule should be scrapped. He is also right in believing that the point of viability is too late in gestation to begin to accord respect to developing life. He is wrong, however, in contending that eight weeks of gestation marks the point when respect for a unique human life can begin. Eight weeks is too late. What makes us human and entitled to respect as such is that we are borne by human mothers and raised in human families. A unique human life begins and becomes a matter of public concern when a human mother acknowledges that she will have a baby.[115] This event may and often does occur well before the unborn child develops hands and brain activity; to say that such a being is not entitled to respect and public concern for lack of these features demeans the value of human life and a mother's love.

48. However, despite the fact that the life she creates thereby becomes a matter of public concern, a woman's assent to becoming a mother must remain a strictly private matter, to be determined by the woman herself and whomever she chooses to involve, on whatever grounds they find important. It is not a decision that can or should be made under coercion on terms dictated by the state. If a state wants to give effect to the public concern for developing life, it cannot do so by do so by denigrating the moral qualities and judgmental capacities of the women responsible for that life. Instead, a state truly respectful of human life would act to insure a world in which mothers were not punished for having children, a world in which the economic worth of childrearing was acknowledged with material compensation, and the moral worth of motherhood was valued at least as highly as that of science.