Sheehan, Katherine C --- "The Hand That Rocks The Cradle A Response to Donald Hope" [1999] MurdochUeJlLaw 10; (1999) 6(1) Murdoch University Electronic Journal of Law

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
Issue:	Volume 6, Number 1 (March 1999)

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.

    
    
    

Notes

* Associate Professor, Southwestern University School of Law, Los Angeles, California. I thank Archie Zariski for his encouragement and Kelley Finan for her able research assistance.

[1] E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW VOL 6 NO. 1 (March, 1999) (hereinafter, Hope).

[2] [1973] USSC 43; 410 U.S. 113 (1973).

[3] Gestational age is commonly calculated from the onset of the mother's last menses before conception.

[4] Hope ¶ 73.

[5] Hope ¶ 1.

[6] But see Planned Parenthod of Southeastern Pennsylvania v. Casey, 105 U.S. 833, 846 (1992) (holding that the state is concerned with potential life from the conception of that life, but that abortion is nevertheless a woman's private decision before viability).

[7] But see generally FEMINISM AND SCIENCE (Evelyn Fox Keller & Helen E. Longino, eds. 1996) (collecting essays exploring the gendered nature of scientific assumptions and methods).

[8] Hope's reliance on science to provide an answer to what is posed, in the United States, as a legal question-what is the nature and value of a woman's Constitutional right of reproductive choice?-implies yet another unstated premise: that neither the U.S. Constitution nor any other body of U.S. law is adequate to the task of providing a well-reasoned answer to this question. Cf. Hope ¶¶ 97-106 (criticizing the opinion for the Court in Roe v. Wade, [1973] USSC 43; 410 U.S. 113 (1973), for relying "almost exclusively on the law"). On this point I rather agree with Hope. See Katherine C. Sheehan, Toward a Jurisprudence of Doubt, 7 UCLA WOMEN'S L. J.201, 241-55 (1997). However, I would neither pose the question in the way Hope does nor look to science for an answer.

[9] See, e.g., Hope ¶ 2 & nn. 3-5. Hope's own sources, however, do not agree on the use of the word "fetus." Compare Hope n. 6 (dating beginning of fetal stage at the end of week eight) with Hope n. 9 (noting that it is traditional to change the term from embryo to fetus at the end of the first trimester, or week twelve).

[10] Hope ¶ 52.

[11] Id.

[12] Hope ¶ 10.

[13] See Hope ¶¶ 5-8.

[14] See Hope ¶ 10.

[15] Hope ¶ 9.

[16] See Hope ¶ 9.

[17] Hope ¶¶ 30 & 34.

[18] Hope ¶ 36. Hope makes a similar claim when he states that our culturally created evaluation of life is not arbitrary because "the law places a higher value on life as one progresses up the evolutionary scale," Hope ¶ 24, a statement reminiscent, in this context, of the old axiom that ontogeny recapitulates phylogeny.

[19] Hope ¶ 36.

[20] Hope tends to treat human culture as a fairly monolithic entity resembling the world of Jules Verne's science fiction, leavened with a little art. See, e.g., Hope ¶¶ 49-53. "We live in a scientific civilization and science is the basis of our survival and flowering as a species." Id. ¶ 53. He does not comment on whether life outside the sphere of western science commands the same value as life within it.

[21] See Hope ¶¶ 24-26.

[22] Hope ¶ 20; see also Hope ¶¶ 2, 10, 20, 21, 23, 100 ("biological facts"); 9, 89, 97, 128 ("scientific facts"); 2, 35, 103 ("facts of ontogeny" or "development").

[23] For a careful analysis of the notion of "fact" and its relationship to the concept of "evidence" in science, see Helen E. Longino & Ruth Doell, Body, Bias, and Behaviour: A Comparative Analysis of Reasoning in Two Areas of Biological Science, in FEMINISM AND SCIENCE 73, 75-77 (Evelyn Fox Keller & Helen E. Longino, eds. 1996).

[24] Id.

[25] See id. at 75 ("To speak of scientific evidence is not to speak of bare facts or data awaiting an explanation. It is, instead, to confer on those facts an epistemic relevance to a belief, hypothesis, or theory.")

[26] For example, Hope argues that the fact that "fetal movement stirs factors of intuitive recognition and empathy on the part of observers," Hope ¶ 67, is a reason to allow abortion to be prohibited when fetal movement occurs. The observation he has in mind, however, is not the mother's recognition of her unborn child's activity, or "quickening," but the transition from embryo to fetus, when movement "actually" begins, although it can be detected only sonographically. See id. Many mothers will recognize this distinction as that separating "old wives' tales" about pregnancy from much of obstetrics.

[27] See Hope ¶ 10.

[28] See Hope ¶ 59.

[29] Hope ¶ 127.

[30] See Hope ¶¶ 59-61.

[31] See Hope ¶ 127 (likening data gathered by "new imaging technologies" such as fetal sonograms to views of Earth obtained from space). Rosalind Pollack Petchesky, in her perceptive analysis of fetal imagery, quotes a telling example of this view: "'The fetus could not be taken seriously as long as he sic remained a medical recluse in an opaque womb; and it was not until the last half of this century that the prying eye of the ultrasonogram . . . rendered the once opaque womb transparent . . . letting the light of scientific observation fall on the shy and secretive fetus.'" Rosalind Pollack Petchesky, Fetal Images: The Power of Visual Culture in the Politics of Reproduction, 13 FEMINIST STUDIES 263, 276 (1987), (hereinafter, Fetal Images) quoting Michael R. Harrison, et al., Management of the Fetus with a Correctable Congenital Defect, 246 J. AM. MED. ASSOC. 774 (1981) (italics Petchesky's).

[32] Hope ¶ 73 (emphasis added).

[33] See, e.g., Hope ¶ 89 ("To a large extent the notion that humanness begins at conception relies on articles of faith rather than scientific fact.")

[34] See Hope ¶ 84 (The "human recognition factor" does not matter to the abortion of embryos because, "quite simply, embryos do not have distinctively human features").

[35] See, e.g., Hope ¶¶ 67, 81, 84.

[36] Hope ¶ 24.

[37] Id.

[38] Hope ¶¶ 38-39. See Stanley Kubrick, 2001: A SPACE ODYSSEY (MGM 1968). Hope's evident fondness for 2001 is very telling. The movie portrays an unbelievably laborious and expensive scientific process evidently intended to result in the birth of a superior baby, who appears in the movie as the fetal "star child," floating through space in its placental space ship, free of unscientific maternal connections. For an extended analysis of the mysogynistic implications of this image see Fetal Images at 270. All major and minor speaking parts in 2001 are played by men, although the movie does include several female flight attendants, a female receptionist, two wives, a daughter, a mother, and a machine with a feminine voice.

[39] See BONNIE STEINBOCK, LIFE BEFORE BIRTH 40-71 (1992) (examining flaws in moral reasoning concerning potential people).

[40] See, e.g., Hope ¶ 81.

[41] See, e.g., Hope ¶ 67 ("Fetal movement stirs factors of intuitive recognition and empathy on the part of observers."); ¶¶ 77-78 (unlike viability, which is "difficult to judge," "the change from embryo to fetus is by definition accompanied by a change in external form.").

[42] See Fetal Images at 263-71.

[43] See id.; see also BARBARA JOHNSON, Apostrophe, Animation, and Abortion 184, 199 in A WORLD OF DIFFERENCE (1987) (remarking that the debate about abortion lacks coherence, in part, because of "the difficulty . . . in the attempt to achieve a full elaboration of any discursive position other than that of the child.")

[44] Or a transistor radio. See Jed Rubenfeld, On the Legal Status of the Proposition That "Life Begins At Conception", 43 STAN. L. REV. 599, 624 n. 110 (1991) ("One might as well say a transistor radio was an independent life entitled to respect as a person.").

[45] See Hope ¶ 81 ("Those who recognize in the viable fetus the features of a complex human being intuitively feel strong empathy . . . which creates for many reasonable people a conflict between their conscience and the Constitutional abortion right"); see also id. ¶ 67 ("Fetal movement stirs factors of intuitive recognition and empathy on the part of observers.").

[46] Hope ¶ 78.

[47] Fetal Images at 264.

[48] For a careful and damning study of the importance of degrading images of poor single motherhood to the regulation of labor in the United States, see FRANCES FOX PIVEN & RICHARD A. CLOWARD, REGULATING THE POOR: THE FUNCTIONS OF PUBLIC WELFARE 365-99 (Updated ed. 1993).

[49] See BONNIE STEINBOCK, LIFE BEFORE BIRTH 59-71 (1992) (examining the logical problems with attributing interests or a point of view to aborted pre-viable fetuses).

[50] See, e.g., Hope ¶ 16 (referring to late-term abortion as "gruesome" and describing it as "live dismemberment."); id. ¶ 69 (referring again to "gruesome live dismemberment").

[51] See Hope n. 17 (describing the procedures for late-term abortions, including the need to make certain fetal parts, including the skull, "smaller"); id. n. 18 (describing the "calvaria sign" which indicates to the doctor when the fetal skull has been successfully compressed); id.¶ 90 (challenging pro-choice advocates to "come up with a rationalization for 'calvaria sign'"). Hope's obsession with the crushing of skulls is oddly echoed in his admiring description of the scene from the movie 2001: A SPACE ODYSSEY (MGM 1968) in which the proto-human hero uses his new-found skill with tools to brain his hominid rival. See Hope ¶ 38. In the movie, the proto-human's first use of the tool is to slay animals for food. Hope omits this scene from his description.

[52] "Like much of surgery, late abortion by any method is not aesthetic. However, these considerations must never influence the judgment of the physician as to what is best for the patient." Continuing Need.

[53] See id.; Janet E. Gans Epner, Harry S. Jonas, Daniel L. Seckinger, Late-term Abortion, 280 J. AM. MED. ASSOC. 724 (August 26, 1998), available in 1998 WL 15720388 (hereinafter, Late-term Abortion) (noting that some U.S. physicians prefer dilatation and extraction (D&E) over labor induction methods of late-term abortion because they find D&E "distasteful," but reporting that the American Medical Association recommends that the decision whether and when to use any particular abortion method must be left to the discretion of the individual physician acting in the best interest of the patient.).

[54] See Continuing Need (giving as a reason why the D&E method is chosen over labor-induction alternatives for second-trimester abortions to the fact that "negative reactions to second-trimester abortions are directly related to contact with the fetus," and D&E "transfers the emotional burden of abortion from women, who have often suffered greatly, to the staff").

[55] Hope ¶¶ 10-11.

[56] See Hope ¶¶ 59-66 & 74.

[57] Hope ¶ 74.

[58] For a discussion of the complexity of defining life and death see Robert M. Veatch, Definitions of Life and Death: Should There Be Consistency? in DEFINING HUMAN LIFE: MEDICAL, LEGAL, AND ETHICAL IMPLICATIONS 99-113 (Margery W. Shaw & A. Edward Doudera, eds. 1983). The definition of death as the cessation of brain activity, however defined, is by no means universally accepted. See, e.g., D. Alan Shewmon, "Brainstem Death," "Brain Death" and Death: A Critical Re-evaluation of the Purported Equivalence, 14 ISSUES L. & MED. 125, 143-45 (1998) (hereinafter, Brainstem Death) (arguing that "brain death" is a harmful legal fiction).

[59] See, Brainstem Death at 143-44. Dr. Shewmon lists as one of his reasons for opposing the concept of brain death the fact that it has spawned the even more objectionable and unscientific notion of "brain birth."

[60] See Brainstem Death at 126 (distinguishing brain-based diagnoses of death into two camps: the American "whole brain" formulation and the British "brainstem" formulation.) For an analysis of the points of disagreement among the various theories of brain death, see CHRISTOPHER A. PALLIS & D.H. HARLEY, ABC OF BRAINSTEM DEATH 6 (2d ed. 1996).

[61] Robert J. Sokol & Mortimer G. Rosen, The Fetal Electroencephalogram, 1 CLINICS OBSTETRICS & GYNECOLOGY 123 (1974); Joel R. Cornwell, The Concept of Brain Life: Shifting the Abortion Standard Without Imposing Religious Values, 25 DUQUESNE L. REV. 471, 476 (1987).

[62] See Cherry Thompson, Cortical Activity in Behavioural Development, in BRAIN AND BEHAVIOURAL DEVELOPMENT 131, 136 (J. Dickerson & H. McGurk, eds. 1982) ("The electrical is random, irregular, unresponsive and dissociated" in the fetal cerebral cortex until at least the twenty-second week of gestation); JOHN R. HUGHES, EEG IN CLINICAL PRACTICE 69-70 (1982); Gary B. Gertler, Note: Brain Birth: A Proposal for Defining When a Fetus Is Entitled to Human Life Status, 59 S. CAL. L. REV. 1061, 1068 (1986).

[63] See D. Gareth Jones, Brain Birth and Personal Identity, 15 J. MED. ETHICS 173, 177 (1989).

[64] See Hope ¶ 69 ("There is a strong moral argument that the right of abortion must be tempered by considerations of the humanity of the fetus and the possibility that the fetus is capable of sensation.")

[65] BONNIE STEINBOCK, LIFE BEFORE BIRTH: THE MORAL AND LEGAL STATUS OF EMBRYOS AND FETUSES 85 (1992).

[66] See Hope ¶ 68.

[67] See, e.g., ROBERT D. GOLDSTEIN, MOTHER-LOVE AND ABORTION 38-52 (1988) (describing psychoanalytic object relations theories of the origin of the self in relationships with others).

[68] See Joel R. Cornwell, The Concept of Brain Life: Shifting the Abortion Standard Without Imposing Religious Values, 25 DUQUESNE L. REV. 471 (1987).

[69] See Gary B. Gertler, Note: Brain Birth: A Proposal for Defining When a Fetus Is Entitled to Human Life Status, 59 S. CAL. L. REV. 1061 (1986).

[70] See Hope ¶¶ 61-62 and n. 31-32 (citing John M. Goldenring, The Brain-Life Theory: Towards a Consistent Biological Definition of Humanness, 11 J. MED. ETHICS 198, 200 (1985); id. ¶ 64 and n. 33 (citing Cornwell). Goldenring and Cornwell both argue that "brain life" begins after eight weeks of gestation. See, also Joseph W. Dellapenna, Nor Piety Nor Wit: The Supreme Court on Abortion, 6 Colum. Hum. Rts. L. Rev. 379-408 (1974-75) (eight weeks); BARUCH BRODY, ABORTION AND THE SANCTITY OF LIFE 83 (1975) (same); Peter Steinfels, Scholar Proposes Brain Birth Law, N.Y. TIMES (Nov. 8, 1990) at A28 col. 1 (reporting philosopher Hans-Martin Sass's support for proposed Iowa legislation dating "brain birth" at ten weeks). Hope does not mention Gary Gertler, who argued for a "brain birth" standard but dated that event at twenty weeks. See, also, J. Korein, Ontogenesis of the Fetal Nervous System: The Onset of Brain Life, 22 TRANSPLANTATION PROC. 982, 983 (1990) (concluding that brain life begins no earlier than week twenty). Hope's conflation of various stages of brain development is particularly egregious when he attempts to claim Sarah Weddington, attorney for Jane Roe in Roe v. Wade, as an advocate for his restrictive position. See Hope ¶¶ 64-66. Hope quotes a line from Weddington's 1992 book in which she reports reading that she had responded to a question at oral argument in the district court in Roe by commenting that the state might "recognize life" when the fetal brain was functioning. Because he ignores the distinction between electrical activity at eight weeks and true brain function around week twenty-four (and between a state's interest in fetal life and its power to prohibit abortion), Hope implies that Weddington was arguing for a right ending at the eighth week. This is not and never was Weddington's position. In arguing before the Supreme Court, Weddington refused to adopt any endpoint for the right to choose abortion, despite her recognition that failure to do so might weaken her argument. See SARAH WEDDINGTON, A QUESTION OF CHOICE 117-18 (1992) ("I knew that everyone, me included, was uncomfortable with the idea of abortion in the later stages of pregnancy. . . .As the justice continued to push me, I felt I had to stick to my basic answer that legal rights generally began at birth, while recognizing that the emotional, rather than constitutional response to abortion was different for late pregnancy.")

[71] See, e.g., Andrezej Kulczycki, Malcolm Potts, Allan Rosenfield, Abortion and Fertility Regulation, 347 THE LANCET 1663-68 (June 15, 1996) available in LEXIS, Health Library, Alljnl file (hereinafter, Fertility Regulation).

[72] Stanley K. Henshaw and Kathryn Kost, Abortion Patients in 1994-95: Characteristics and Contraceptive Use, 28 FAM. PLAN. PERS. 140, 145 (July/August 1996) (hereinafter, Contraceptive Use). Henshaw and Kost define contraceptive failure as conception by a woman who "considered herself a contraceptive method user during the month she became pregnant, although she may not have used a method consistently or correctly." Id. at 144.

[73] See Fertility Regulation (citing sources reporting that 60% of U.S. pregnancies are unwanted or mistimed, while two-thirds of European women have at least one unintended pregnancy).

[74] See id.

[75] See id.

[76] See id.; Contraceptive Use at 142.

[77] See Contraceptive Use at 142.

[78] See id.

[79] See RACHEL BENSON GOLD, ABORTION AND WOMEN'S HEALTH: A TURNING POINT FOR AMERICA? 16 (1990).

[80] See N.F. Russo, J.D. Horn, R. Schwartz, US Abortion in Context: Selected Characteristics and Motivations of Women Seeking Abortions, 48 J. SOC. ISSUES 183-202 (1992).

[81] Contraceptive Use at 142.

[82] See Hope ¶ 91. According for the Centers for Disease Control, 48.8% of reported U.S. abortions occurred after 8 weeks of gestation in 1993; 47.4% in 1994. Lisa M. Koonin, et al., Abortion Surveillance-United States, 1993 and 1994, in 46 Morbidity & Mortality Weekly Report 37, 62-65 (Centers for Disease Control, August 8, 1997) (hereinafter, Abortion Surveillance). For a careful discussion of the CDC's statistics, comparing them to those collected from abortion providers by the Alan Guttmacher Institute, see Late Term Abortion.

[83] See Hope ¶ 129 (pointing out that his solution "will give each side half a loaf").

[84] Hope ¶¶ 90, 93.

[85] Hope ¶ 92.

[86] In 1993, 65% of reported legal abortions performed for children under 15 occurred after the eighth week of gestation; in 1994 that number was 65.5%. Abortion Surveillance at 90-91.

[87] 56.8% of those performed for teenagers aged 15 through 19 in 1993 occurred after the eighth week. In 1994 56.6% of abortions for girls aged 15-19 were performed after the eighth week. Id. About 20% of all United States abortions are performed for teenaged girls. Id. at 54-57.

[88] Committee on Adolescence, American Academy of Pediatrics, The Adolescent's Right to Confidential Care When Considering Abortion, 97 PEDIATRICS 746-751 (1996) (hereinafter, Adolescent's Right).

[89] See David A. Grimes, The Continuing Need for Late Abortions, 280 J. AM. MED. ASSOC. 747 (August 26, 1998) available in 1998 WL 15720393 (hereinafter, "Continuing Need").

[90] See id.

[91] See B. Santee & S.K. Henshaw, The Abortion Debate, 24 FAM. PLAN. PERS. 172-73 (1992); Planned Parenthood of Southeastern Pennsylvania v. Casey, 744 F. Supp. 1323, 1356-57 (E.D. Pa. 1990) (making extensive findings of fact concerning minors' reactions to pregnancy), aff'd in part and rev'd in part[1991] USCA3 1120; , 947 F.2d 682 (3d Cir. 1991), aff'd in part and rev'd in part [1992] USSC 112; 505 U.S. 833 1992).

[92] Most teenagers voluntarily involve adults in considering what to do about their unwanted pregnancies. See Adolescent's Right; Casey, 744 F. Supp. at 1356. Foot-dragging abortion control statutes impose additional burdens on minors and their consenting parents, including, for example, requirements that parents receive counseling in person from abortion providers, resulting in abortions being delayed until both the child and her parent can arrange time to visit the provider. See id. These delaying tactics, as well as others requiring that counseling be performed by physicians, dictating the information to be provided to persons seeking abortion, limiting the places where abortions can be performed, and imposing onerous record-keeping and reporting requirements on providers, all of which decrease the availability and increase the time and expense associated with abortion, have all been upheld as Constitutional by the United States Supreme Court. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 105 U.S. 833 (1992). These statutes have been opposed by pediatricians as harmful to the health of young women and girls. See Adolescent' Right.

[93] See Continuing Need (Remarking that reasons for late-term abortions include young age, ignorance, fear, and ambivalence, factors that "are not easily changed.") Improved education in contraception and reproduction might address some of the conditions that cause teenaged girls to need abortions after the eighth week of pregnancy. These measures are seldom favored by persons seeking to restrict access to abortion, however, and Hope does not mention any effort to improve access to either contraception or early abortion as part of his scientific resolution of the abortion controversy.

[94] See Late-term Abortion (discussing results of 1987 survey conducted by Alan Guttmacher Institute).

[95] In 1993, 54.2% of black women who obtained reported abortions got them after the 8th week of pregnancy, compared to 44.5% of white women. In 1994, the number was 52.6% for black women compared to 43.3% for white women. See Abortion Surveillance at 90-91. Although the majority of abortions in the United States are performed for white women, the abortion rate for African-American women is nearly triple that of whites. See Abortion Surveillance at 43; Contraceptive Use at 143.

[96] See Continuing Need. Even the results of chorionic villus sampling (CVS), which Hope points to as a method of early testing, are not available before his 8-week deadline. See Late-term Abortions (reporting that CVS can be performed between the 10th and 12th weeks of pregnancy, with results available in 2 to 10 days, and concluding that "an induced abortion prompted by the discovery of fetal anomalies through CVS or amniocentesis is almost certain to occur after the first trimester.").

[97] Hope ¶ 94 (emphasis added).

[98] Hope ¶ 95.

[99] See Continuing Need (remarking that, for this reason, "the availability of late abortion is pronatalist.").

[100] See RACHEL BENSON GOLD, ABORTION AND WOMEN'S HEALTH: A TURNING POINT FOR AMERICA? 5 (1990).

[101] "Almost a third of metropolitan areas have no abortion provider, and a similar proportion of women live in unserved counties. Two states-North and South Dakota-have only one provider each." Stanley K. Henshaw, Abortion Incidence and Services in the United States, 1995-1996, 30 FAM. PLAN. PERS. 263, 270 (December 1998).

[102] Today only a tiny percentage of women and girls denied abortions give their babies up for adoption; it is hard to know whether more would do so under Hope's rule but both the current adoption figures and the pre-Roe numbers suggest that most involuntary mothers will keep their babies. For example, although the abortion rate for teenaged girls has declined over the past decade, see Rachel B. Kaufmann, Alison M. Spitz, Lilo T. Strauss, Leo Morris, John S. Santelli, Lisa M. Koonin and James S. Marks, The Decline in U.S. Teen Pregnancy Rates, 1990-1995, 102 PEDIATRICS 1141 (1998), so has the rate at which teenagers give their babies up for adoption. See Adolescent's Right.

[103] "Compared with peers who terminate their pregnancies, adolescents who hear children are at a significantly higher risk of educational deficits, economic disadvantage, and marital instability." Adolescent's Right, citing American Academy of Pediatrics, Committee on Adolescence, Counseling the Adolescent About Pregnancy Options, 83 PEDIATRICS 135-137 (1989); Conner K. Greenberger, Parental Notice and Consent for Abortion: Out of Step With Family Law Principles and Policies, 23 FAM. PLANN. PERSPECT. 31-35 (1991).

[104] See Hope ¶¶ 27-35.

[105] See Hope ¶ 32.

[106] See Hope ¶ 105.

[107] See Jed Rubenfeld, On the Legal Status of the Proposition That "Life Begins At Conception", 43 STAN. L. REV. 599, 634-35 (1991).

[108] See BONNIE STEINBOCK, LIFE BEFORE BIRTH: THE MORAL AND LEGAL STATUS OF EMBRYOS AND FETUSES (1992).

[109] See ROBERT D. GOLDSTEIN, MOTHER-LOVE AND ABORTION (1988).

[110] See Stanley K. Henshaw, Abortion Incidence and Services in the United States, 1995-1996, 30 FAM. PLAN. PERS. 263 (December 1998).

[111] See Abortion Surveillance at 90-91.

[112] See Late-term Abortion.

[113] See Continuing Need.

[114] For an account of the damage done to women by the imposition of alien meanings on their bodies, see, DRUCILLA CORNELL, THE IMAGINARY DOMAIN: ABORTION, PORNOGRAPHY & SEXUAL HARASSMENT (1995). One of the pernicious effects of this imposition of meaning is that the dominant meaning of abortion as a victory of the woman in an adversarial battle with her fetus denies the woman any way to grieve for her loss. Cf. Lynn Wardle, "Crying Stones": A Comparison of Abortion in Japan and the United States, 14 N.Y. L. SCH. J. INT'L & COMP. L. 183, 185 (1993) (comparing the role of sadness in the meaning of abortion in two cultures).

[115] See ROBERT D. GOLDSTEIN, MOTHER-LOVE AND ABORTION (1988) (proposing that a woman's assent to motherhood creates a mother-child dyadic unit for which she remains responsible through pregnancy and much of childhood.) 16