Medical Technology and Abortion: How Technology Poses Challenges to Our Current Law.

Show: FRESH AIR
Date: JANUARY 22, 1998
Time: 12:00
Tran: 012201NP.217
Type: FEATURE
Head: Medical Advances and Abortion
Sect: News; Domestic
Time: 12:06

TERRY GROSS, HOST: This is FRESH AIR. I'm Terry Gross.

Today is the 25th anniversary of Roe v. Wade, the Supreme Court decision that established the constitutional right to abortion. In the intervening years, reproductive technology has radically changed. We can perform surgery on fetuses. We can perform abortions with pills.

Does this change the debate on the ethics of abortion? My guest, Art Caplan, is the director of the Center for Bioethics at the University of Pennsylvania and author of the new book, "Am I My Brother's Keeper?: The Ethical Frontiers of Biomedicine."

Roe said that a state may regulate or forbid abortion only after the fetus has become viable -- that is, when the fetus has a chance of surviving outside the womb, usually during the seventh month. That position was modified by the 1992 Planned Parenthood v. Casey decision, in which the court ruled that a state could impose restrictions at any time as long as the restrictions didn't impose an undue burden on the woman seeking the abortion.

Are new technologies changing our understanding of viability? And what implications does that have for the abortion debate? I asked Art Caplan.

ART CAPLAN, DIRECTOR, CENTER FOR BIOETHICS, UNIVERSITY OF PENNSYLVANIA, AUTHOR, "AM I MY BROTHER'S KEEPER?: THE ETHICAL FRONTIERS OF BIOMEDICINE": Well in some ways, viability just doesn't resemble what it did at the time Roe was issued. The justices are thinking way into that second trimester -- that's what we're talking about -- we might have a viable fetus. And if you look at the opinion, they acknowledge that a few fetuses have lived perhaps younger than 27, 28 weeks. That's changed.

The first area of viability that has just revolutionized is preemie babies -- little tiny premature babies -- are routinely subjected to medical intervention in attempts to save them or rescue them at 23, 24 weeks. We've moved almost a month backwards from where Roe was.

What's changed technologically to make that happen? Diagnosis -- you can ultrasound and look into the uterus in ways that you just never could do in 1972. You can see a baby has a problem and say: "maybe we're going to schedule it for a C-section or have a delivery and then be there to try and do something."

You can be in a position through diagnosis of the chemicals that the fetus is putting out to say: "hmm, there's something biochemically abnormal. We better get in there and try and do something to this baby in-utero." We now have in-utero surgery. That might actually take place before 23 weeks. We could be doing operations on a baby inside the womb -- 18 weeks, 19 weeks -- unheard of at the time Roe was issued.

So we have a sense again, well, viability -- if you could do a surgical procedure to repair, say, fluid on the brain which would kill the child, but you can put a tube in to get that fluid off at 19 weeks, now we've got a baby that's -- what? -- sort of viable because you can intervene at 19 weeks?

Other changes -- much better nutrition; much better ability to support respiration on tiny infants. So, the line has absolutely shifted in terms of where you would rescue.

GROSS: So since viability has changed since Roe, how do you think it's changed the nature of the debate about abortion?

CAPLAN: Sometimes when I hear lawyers and experts on constitutional law talk, they say: "not at all. This -- this viability standard is just there, and that's what it is and it's locked in to case after case and it's not gonna move."

I wouldn't agree with that because I think the viability shift changes the moral terms very much. If your first baby picture is now an ultrasound that goes in your book of your child at age 18 weeks, you bond with that fetus. You're having an identification, an empathy, a kind of psychological tie to that child much, much earlier.

When people think about abortion morally, I think they think, well, the earlier -- for many people -- the earlier in development, the more morally acceptable. It's less a person. It's still a potential person. But when you have that window on the womb through modern diagnostic technologies, you start to identify with that baby much, much earlier. And so, people begin to have reservations about abortions coming later.

It's no accident, I think, that late-term abortion for whatever reason has become so controversial in current times. I think that's partly due to this shift in, if you will, the identification of the fetus as person. When we rescue babies at 22 weeks and we see -- we're talking here about a baby that fits in the -- in your hand. We're talking about a baby that might be a pound or less. It is a tiny creature. You're starting to get to the point where you're making people worry that if we would save babies that we allow women to choose to abort, we are fuzzing the line between the morality of what we're doing.

In other words, if we make a massive effort for a million dollars to save a 22-week preemie, but someone else can say, well given where Roe is or given where my state laws are, I could end that pregnancy at 22 weeks, we are faced with a kind of inconsistency of moral judgment. It's -- it's sort of, we're gonna spend a million dollars to save that baby, but this other baby -- this woman still may say: "I don't choose to carry it" or "I'm not going to carry it" -- for whatever reason, and end that pregnancy.

GROSS: Do you expect that the law is going to change? That Roe v. Wade would be challenged on these grounds?

CAPLAN: I do. I think not only do the current technologies pose challenges to where Roe drew the line, if it was really viability that was the framework to justify, let's say, a woman's right to control her body versus fetal interest in life, and the state says what happens over time is that the woman's interest diminishes as the fetus, if you will, becomes more a person through its development.

We've clearly never agreed on a line, but we've agreed on a concept: viability. That tells us something significant. If that fetus could live independently, the woman has less claim to say it's a burden because we can, so to speak, have it out and she's not burdened anymore and her own interests and rights are protected, at least in terms of having to support the pregnancy. Technology's going to push this line some more.

I saw, just in the past couple of weeks, an incredible technology that's coming to the world of birth very, very fast. It's liquid ventilation. You think about what a fetus does. It basically floats around in liquid, to breathe. We all start our lives as little mermen and mermaids. We breathe liquids. Sounds odd, but that's what we must do before we're out in the air and our lungs work.

The limit on viability now is lung development. We haven't known how to get a baby oxygen that doesn't have lungs to supplement because it's still in the liquid-breathing mode. Liquid ventilation, simply put, just comes up with a chemical that you can bathe those babies with and get them to breathe. That technology is here. It's now being applied very tentatively to a few children.

You put that into play, you're talking about viability at 18 weeks, 19 weeks. And I can't imagine challenges won't then come and say we can do things with these babies. If the women don't want them, deliver them or have them taken out, or at least recognize that -- that the independence of this person is now guaranteed by technological supplementation.

So, I think that's a powerful argument. It may not be one that we all choose to accept, but I think it's going to generate a lot of heat in the years to come.

GROSS: But then the question is: is viability the appropriate standard to measure when a woman should have the right to have an abortion? And is that being challenged now?

CAPLAN: I think viability tells us an important facet of the morals of reproduction for men and women. It says: "I don't have a duty to help another person that I don't choose to." This society has always said we ought to leave each other alone, but we limit how much we expect people to do for one another.

We've said time and time again, if someone else needs bone marrow; if someone else needs blood; if someone else needs a kidney -- they can't come to you with the expectation that you're going to get it.

And the abortion framework has reflected that because what it has said from Roe: the woman doesn't have an obligation to help, nurture, house, support a fetus that she doesn't want to. She has the right to sort of say that's a limit.

I think that's not the whole story, though, and I think if Roe just depends on that, and technology steps in to provide the supplementation of that support, something else comes up. We haven't talked much about it in society, and that is: do I have the right to control how I reproduce and whether I reproduce at all with my genes?

In other words, if I choose not to have a child, even if it didn't have to stay inside my body, can I say to someone else: you can't raise that child. You can't make me reproduce. It's not that I don't want to raise this child. I don't want anyone to have this child. I don't want this child to exist. My genes -- it's my, so to speak, right or privilege to say when I reproduce, and you couldn't force me.

If some day, which I believe will happen, we come up with a box to put babies in from dishes -- literally get rid of the uterus and say we've got an artificial room -- could I still protest, morally, and say: "you know, I don't want you to make some embryos in a dish and put them in an artificial womb and raise them. I don't choose to reproduce. I should have the right to control that."

I believe that right is there. I think we should recognize some idea of the right to control reproduction that goes beyond the cost or the burden of it. So far, because of the way Roe was written, we haven't talked much about this.

It basically gets back and forth to right of the woman not to have to assist; right of the fetus to have its interest protected; and at some point we've sort of said, well, the fetal rights overwhelm the burden of it all, and so at that point you can't -- if you've gone this far, you can't sort of back out. You've got to complete the pregnancy.

I don't think that's an adequate framework.

GROSS: My guest is Art Caplan, director of the Center for Bioethics at the University of Pennsylvania. We'll talk more after a break.

This is FRESH AIR.

If you're just joining us, my guest is medical ethicist Art Caplan, and he's written a new book called Am I My Brother's Keeper?: The Ethical Frontiers of Biomedicine.

Now, for a lot of people in the abortion debate, the really large question is: when does life begin? That's the pivotal question for a lot of people. That's the pivotal question for the Roman Catholic Church, and they say life begins...

CAPLAN: It's probably a pivotal question for every human being since time...

GROSS: ... well.

CAPLAN: ... immemorial, too, but yes.

LAUGHTER

A fundamental question.

GROSS: Well, the church and many people in the anti-abortion movement say life begins when the sperm and the egg meet.

CAPLAN: Right.

GROSS: And the egg is fertilized. And so any attempt to end -- end life after fertilization is unethical.

CAPLAN: In fact, that -- that view, lest anyone think it doesn't have power, has resulted in something like 50,000 embryos being frozen in a kind of liquid nitrogen limbo, because infertility clinics that make these embryos are afraid to destroy them, and we have no idea what to do if you believe that life begins at conception, and you see those embryos that people make when they're trying to have a child, but may not use for various reasons -- they get lucky and have a baby fast and they don't want the other embryos.

Are those tiny people? And if you view them that way, then you have to -- you can't kill them. You have to sort of store them. And so clinics all around this country and, indeed, many parts of the world, have respected the idea that life begins at conception because they simply will not destroy these embryos.

So it -- I mean, there are policy implications all over the place where you wind up saying: "yes, we will not allow any clinic to destroy, defrost, any unwanted embryos. They're going to stay there as long as the electricity holds out, because those have moral significance. They are -- they are life that has begun at conception.

To me, this is one of the areas where there was a failure, to some extent, in the abortion debate. Probably back in the early '80s, there was a push to pass the human life amendment. And the idea was to amend the Constitution to say life begins at conception, and therefore rights accrue at conception and no matter what the Supreme Court says, we are now telling you that that's where we want the legal framework of protection to begin. We're shifting the line.

Technology today has done something very interesting. In 1972, if you asked people about the time of Roe, they would have said spontaneous abortions or miscarriages are unpredictable and probably pretty rare. It's tragic. It's sad. You have a stillborn baby. Sometimes you get pregnant and something happens and you're not quite sure, if you're the woman, and somehow or another that -- that embryo disappears or early fetus disappears.

We know a lot more about this process now. We know that the spontaneous abortion rates of fertilized eggs are probably on the order of 50 percent. That is, easily the majority of conceptions that take place don't become babies. That is not an irrelevant fact to the argument about when does life begin.

GROSS: Well, how does that relate to the argument?

CAPLAN: It does it in two ways. One, we know that there are clearly some genetic mistakes that make it impossible for some fertilized eggs ever to become babies no matter what you did to them. You could put them into women. You could put them in dishes. They are mis-programmed. The instructions that happened -- an error took place. This embryo is doomed not to become a person.

It is wrong to say that life begins at conception as a matter of factual description if I can go and do chromosome analysis of that embryo, or genetic testing of it, and say: "gosh, it has this feature, this feature, and this feature -- that's a doomed embryo. There is absolutely no way you can become a person."

How do we know this? It comes from something else that's happened in recent years. Why do older women have trouble becoming pregnant? We know that fertility begins to decline after 35 or 40. It has something to do, as people are wont to say, with the quality of eggs. The long and short of it seems to be, from current research, that -- that damage takes place over time to male and female chromosomes just by radiation and environmental things hitting -- getting into the genes and damaging them, and they make them not work right.

We know, in fact, at this point in time, that we can forecast and say: "we've analyzed your embryos. They are not going to become babies no matter what."

So I don't accept this argument or this premise that life begins at conception, but we know today, which we didn't know in 1972 when Roe was issued, is: sometimes it does; sometimes it can't.

GROSS: Now what about the formation of a brain within the fetus? For -- for a person...

CAPLAN: Yes.

GROSS: ... the measure of whether this person really has any kind of life that we'd call "life," is whether they're in the "vegetative state" or whether their brain is functioning.

CAPLAN: Mm-hmm.

GROSS: What about in a fetus, in the womb -- is that a measure of anything?

CAPLAN: At the time the Supreme Court makes its ruling, we don't know much about fetal development. We have some idea that the brain organizes and appears -- in 1972 maybe we can say something like it's there in the eighth week or the sixth -- we know a lot more about that. What we know now is that the neural tube -- the thing that ultimately becomes the brain -- doesn't pop out in fetal development until two weeks in.

That's actually when some people who talk about something known as the "pre-embryo," which is to say the first two weeks of development, you still get a kind of disorganized potential there, but you don't really have a -- what ultimately becomes the spinal cord, and at the top of it, the brain.

We also know that it probably takes another five weeks to have some form of organization take place in that brain so that it is at least wired up to be a brain in some meaningful sense -- and beyond that, the ability to feel pain, to sense. So one set of things we know is that brain development can be analyzed more closely. We know when it starts. And we know, so to speak, when the potential is there to be wired up.

Does it make a moral difference? I would say it does. It does in two ways. Again, if we're going to talk about independence, it's hard to imagine a creature being independent and viable before its brain can sort of drive its functioning. So, a two-week-old embryo is not a viable or functioning creature. It doesn't have any sort of internal thermostat to run it yet.

At the same time, morally, we might say a shift happens when a creature is capable of pain and suffering; when it is capable of the beginnings of cognition. I think that is a very morally relevant event. It happens probably in development somewhere in the late third trimester that you actually get a creature that's beginning to have some sense of the outside world; to have feedback; to react with its environment in something that we might begin to call consciousness.

At that point, I think you do have to wonder: are we using techniques that might cause a fetus to suffer depending on how we do abortions? Or is this a creature now that we can say has established some credibility as a carrier of rights because it has begun to have a mind? We know when people are viewed as not worthy of intervention at the end of life when their brains stop. We talk about brain death, and we say at that point the duties to care for them -- the duties to treat them -- are gone.

GROSS: Art Caplan is my guest. He's a bioethicist, a professor at the University of Pennsylvania. His new book is called Am I My Brother's Keeper?: The Ethical Frontiers of Biomedicine.

New technology has not only changed our understanding of viability, but it's also enabled doctors to intercede much earlier and abort a fetus much earlier into a pregnancy. Why don't you just run through some of the technology that has made earlier abortions possible?

CAPLAN: When Roe took place, we were talking about saline being put into the uterus or surgical removal of what was called, and sometimes is still called, the "contents" of the uterus. Interesting language description for talking about embryos or early fetuses. I think that what's happened in the 25 years since then is two interesting developments -- two key developments.

One is the appearance of RU-486, a chemical means of causing an abortion. Basically, a chemical that changes the way the -- the uterus accepts the embryo -- causes it to reject the implanted embryo. And you basically have two chemical treatments to try and cause contractions and the expulsion of what's going on much earlier in the process -- something that could be done without a clinic, without a surgeon -- just a doctor's prescription, maybe under medical supervision because it's not a pleasant phenomena for the woman. It has some dangers that everything doesn't leave the uterus. But that form of technology wasn't even envisioned at the time of Roe.

The other and even more interesting idea is to put in hormones in high doses immediately after the act of sex, and to see whether you could prevent the uterus from accepting any embryo from implanting. If you believe life begins at conception -- when sperm and egg meet -- you are still going to say anything that stops that now fertilized egg from becoming a baby is unacceptable.

I don't accept that framework. I think it takes more than a fertilized egg. It takes an environment that would allow that embryo to then development. If I have a fertilized just in a dish, I don't consider it a potential person. It needs a uterus or an artificial environment to get going.

If you can come up with a chemical that could make the uterus unaccepting of any fertilized eggs, to me that is not an abortion. It is simply the last step in preventing what I would call the conception of a person. I think that conception is a process not only of when the genes start, but when they, so to speak, gather and then put themselves in an environment to grow.

The current technologies -- the day-after pill that we hear about, emergency contraception that we hear about -- act that way. And I think that's the future, actually, of -- of abortion technology, is to move more toward chemical interventions, not surgical, and things that will prevent fertilized eggs from -- from getting anywhere into the woman's body where they could possibly grow.

Morally, to me, unless you are of the opinion, again, that it's fertilization that's the most morally significant moment, I think far more acceptable. I think most people would say: "well, yes, fertilization is a crucial fact, but if I can prevent the rest of the steps that would be necessary to start this process from unfolding, I'm comfortable with that." I think we're going to see a lot more of that.

GROSS: Art Caplan directs the Center for Bioethics at the University of Pennsylvania. He'll be back in the second half of the show. Tomorrow, he'll speak at Boston University at a conference about the 25th anniversary of Roe v. Wade.

I'm Terry Gross and this is FRESH AIR.

This is FRESH AIR. I'm Terry Gross.

Back with medical ethicist Art Caplan. We're discussing how new reproductive technologies are changing the debate about the ethics of abortion. Caplan directs the Center for Bioethics at the University of Pennsylvania, and he's the author of the new book Am I My Brother's Keeper?: The Ethical Frontiers of Biomedicine.

You're pretty critical of the way abortion has been debated...

CAPLAN: Mm-hmm.

GROSS: ... in the country. What kind of debate would you like to see us have?

CAPLAN: Well, I'd like to see us have a debate that did a couple of things. First, that recognized the moral legitimacy of both sides. When people come to me with a pro-life position, there's a tendency to sneer at them and put them down and say: "what are they? Some kind of mystical lunatics? They see life begins at conception and they -- they want to respect tiny dot-sized things inside somebody's uterus. This is nuts."

When I hear those people, and I am a person who is more on the pro-choice side of this than the pro-life side, but I understand what they're trying to do is say something morally important: that you should respect life; that they want an ethic that says killing is wrong; that they're trying to protect a view that says children and fetuses count; potential children are important. And I think that has moral weight.

I don't listen to this debate and simply say: "well, it's some kind of misanthropy directed against women that drives the, if you will, pro-life side of this debate."

Similarly, on the other side, when women come and say: "don't I have anything to say about this? Am I the prisoner of my uterus? Do you just seem me as a king of walking uterus with a tiny, tiny brain attached and you have no interest in what comes out of that? I see that as an attempt to say: "look, you've gotta take my interests and my voice seriously, and my privacy counts. The control of my body counts. The attitudes about what you expect me to do for others counts. And hear that."

So my first comment would be: there is room here to recognize morally legitimate points of view on both sides. It shouldn't be drowned in invective or through bullhorns and so on. When the abortion arguments were originally going in the '70s post-Roe, some of the I think most moving and powerful arguments in that debate came from people who weren't shouting through bullhorns but were trying to say: "I think the framework is wrong. I think you ought to not have abortion on demand because you are not paying attention to an ethic that respects life across the board."

There was something noble about that. You may say it's not the right ethic. I don't happen to think it is, but I understand where it's coming from. I think the motive is good.

I think another area where I'd like to see this debate change is to say: "well, can't we all at least come to some common understanding that some facts are relevant?" You can't just walk around blinded and say "life begins at conception" if it doesn't. You can't just walk around blinded and say: "fetuses are tissue blobs until nine months" if they're not.

It makes no sense to say that there aren't facts that bear upon moral controversy, and I don't see people making the acknowledgements that as we learn more about fetal life, about embryonic development, and we're going to continue to learn more about that. We're just in the middle of a kind of revolution about this. It has bearing on what people are claiming.

GROSS: One of the early medical controversies of 1998 has had to do with human cloning. And most scientists seem to agree that no one is really ready to do that yet.

LAUGHTER

But, it has really raised the question in a very kind of compelling way.

CAPLAN: You're making me laugh because obviously we've had claims that people are ready to do it, but I don't think anybody's ready to do it soon who knows how to do it.

GROSS: So -- so do you think that the possibility of cloning, if not now, at some time on the horizon, changes the abortion debate in any fundamental way?

CAPLAN: I do. And I think this is another one of those places where people are not paying attention to interesting, fascinating factual developments. Let's look at what a lot of major religious traditions have said -- Mormons, Catholics, Orthodox Jews, Shi'ite Muslims.

Life begins when sperm and egg meet, they say, and there is some morally significant event that takes place when this fertilization happens when the sperm penetrates the egg. That is the way that babies and human beings begin. That is the way they must begin.

What is cloning about? Cloning challenges that view in a fundamental way. It says: the genes that can make a person are in any cell of your body. There is nothing magical about sperm. There's nothing magical about your egg.

That was just nature's old-fashioned way of having to deal with things. We've figured out a way to get DNA -- a full set of genes -- not that we're going to do this tomorrow, but soon we will or someday we will -- be able to make you from the cells of your nose; the cells of your foot; the cells of your bone marrow.

Well first, if you have this view that there's something morally significant about sexual behavior and the fertilization of the egg, it's not true. Do we have a respectful attitude now about your nose cells because they could be people, too? Do we have to think: "well, if I take genes and put them in a dish and start an embryo off that way, then I have to say that conception has occurred?"

I believe that cloning, aside from its fascination about "wouldn't want to clone somebody" -- which I suspect will be of limited interest once people understand the idea of making a small copy of themselves might not be the greatest gift to the kid that they could come up with -- making another wheezy, asthmatic, paunchy philosopher may not be the way to start life.

But what I do believe is it raises a fundamental, profound, metaphysical, ontological question: life doesn't begin anymore only when sperm and egg meet. Life may begin when a scientist takes DNA out of an adult cell and dumps into an egg, shoots some electricity in there, does a few other chemical interventions, and lo and behold, life begins.

We are going to face a metaphysical crisis, I suspect, due to cloning 'cause what we found out is that we can turn on those blueprints ourselves and that the mystery of what was going on when life began isn't so much a mystery. We're starting to unravel it. We're starting to decode it. It's not as mystical. It's not as spiritual.

There may be some who will still cling to the idea that the only way to make babies is through the act of sexual -- heterosexual intercourse. There are going to be some who say: "well, that was old-fashioned. That was the way it used to be. We've gotten around that and we don't have to dress that event up with moral significance and cultural specialness anymore. It's something we do in dishes and it's something we do with any old cell."

GROSS: What's you best guess now about abortion law? Do you think abortion law is going to change much in your lifetime?

CAPLAN: Having said that I think the ethics of abortion is tossed into a kind of revolution by technology and understanding of embryo development and when life begins, I don't think the law is going to change because ironically, I think there is a kind of stability of consensus in one sense that Roe gave us. Roe told us: leave people alone. If they have the means and they want to make the choice, up until the point of roughly viability, women can choose. And I think that's been a stable point of consensus.

We are going to see some intrusion because of this viability issue and what we know about fetuses. Late-term abortions are going to be viewed with more skepticism because it looks like there's more of a person there than we once thought. So I may -- we may see some nibbling at that -- on the right to choose abortion at the far end of fetal development.

Other than that, I think the debate will continue to be about who has to pay for it; who has to approve of it; how long you have to wait; does the government have any obligation to make it available; do you have to train doctors to do it. Those are what I would call positive rights.

And I think the negative right -- you choose it, you want to have it, up until some point in time, it's your right to end that pregnancy -- your -- the woman's interests dominate over the potential fetus -- I think is going to be there. I think that has been a stable point of consensus for some years now. I think it's going to remain so. We're not going to amend the Constitution to take that away. There will be no court decision that overthrows that, I don't believe. So, I think the fundamental core right to have access to this as a matter of choice will stay.

But I also think the abortion debate is going to change for two other reasons. Demographics -- the abortion debate is the baby boomers' debate. When you're having a lot of babies, you worry about it. An older society, while still having people who have babies, isn't quite as consumed about the rights and details of abortion. And I think it's going to fade as an issue because it's not the one that an older population is going to just be so caught up in.

I think assisted suicide and how we die will come to replace abortion as a societal debating point. And I think something else is going to happen to the abortion debate. I think technology, due to day-after pills, better contraceptives -- it's going to make the abortion debate in 10 years moot, and what we'll wind up arguing about is what we should do to make babies. Should be genetically engineer them? Should be clone them? Should be make better ones? Should we restrict who it is that can make them? If you want to make a baby and risk disease, then do you have to pay the cost of that? Sure, you can do it, but we're not paying for your diabetic kid or your cystic fibrosis kid.

I think the abortion debate is going to peter out with a whimper, not actually wind up with another gigantic court battle, because I think demographics, and if you will, the technology of baby-making are going to take us to a new place.

GROSS: Well Art Caplan, I want to thank you very much for talking with us.

CAPLAN: Thank you.

GROSS: Art Caplan directs the Center for Bioethics at the University of Pennsylvania, and he's the author of Am I My Brother's Keeper?: The Ethical Frontiers of Biomedicine.

Tomorrow, he'll speak at Boston University at a conference called "The 25th Anniversary of Roe v. Wade."

Coming up, we continue our talk about new reproductive technologies and the ethics of abortion with Catholic theologian and bioethicist James McCartney.

This is FRESH AIR.

Dateline: Terry Gross, Philadelphia
Guest: Art Caplan
High: Today marks the 25th anniversary of Roe v. Wade, the landmark Supreme Court decision that legalized abortion. We talk to medical ethicist Art Caplan about how technological advances in the medical field, from fetal surgery to cloning, have affected the abortion debate.
Spec: Courts; Trials; Roe v. Wade; History; Abortion; Technology; Health and Medicine; Neonatology
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Copy: Content and programming copyright 1998 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1998 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Medical Advances and Abortion
Show: FRESH AIR
Date: JANUARY 22, 1998
Time: 12:00
Tran: 012202NP.217
Type: FEATURE
Head: James McCartney
Sect: News; Domestic
Time: 12:40

TERRY GROSS, HOST: Today we're looking at how changes in reproductive technologies are effecting the debate about the ethics of abortion.

James McCartney is a bioethicist and a Catholic theologian. He chairs the Department of Philosophy at Villanova University. He's served on the ethics boards of hospitals and nursing homes. He's the ethics consultant for the Catholic East Health System and for the Franciscan Health Network.

I asked him if he thinks that new reproductive technologies are effecting the abortion debate.

DR. JAMES MCCARTNEY, CHAIR OF THE DEPARTMENT OF PHILOSOPHY, VILLANOVA UNIVERSITY, ETHICS CONSULTANT, CATHOLIC EAST HEALTH SYSTEM: Yes, I do. I think first of all the technology of in-vitro fertilization has made people aware that there can be a living organism outside the body. And we have the ultrasound imaging -- the fetus inside the body -- and people are beginning to see that it's not just a clump of tissues. I mean, early-on, it's certainly small, very small, but after a few weeks you can actually see the fetal form -- the human form taking shape. And I do think that has had a significant impact on people's perceptions about the debate.

I also think that the morning-after pill has in some sense medicalized and privatized termination decisions more than anybody would have anticipated.

GROSS: So, you know, from the ethical perspective, how do you weigh those two issues that you're talking about -- the privatization of abortion through the morning-after bill or RU-486, and reproductive technologies that show us how -- early life really begins to form? Yeah...

MCCARTNEY: Well, I think that -- my own feeling is that we have an independent, but you know -- not independent, but an individual, but dependent life, very early on. Maybe not at fertilization, as some claim, but certainly very early in the process. And I think that the imaging techniques have -- have shown that much more clearly than anybody could in writing.

However, I do think the RU-486 -- this -- these issues are not going to become public in the same way that they were before; that this is going to be increasingly a very private decision between a woman and her physician. And you know, while we can say that may be objectively immoral, we can't enter into, you know, all the subjective reasons that people might have to make that decision.

GROSS: You've made the argument in an article that abortion is an inherently social decision, and not a private decision.

MCCARTNEY: Right. I said that because -- I argued that because all of us are involved in a web of relationships and responsibilities. And certainly that's true of women who are pregnant. They have relationships with spouses, with the child in some way. They have relationships with other children. They have relationships with their jobs, which sometimes is the reason why they're choosing the termination decision.

So, you know, to say that this is just strictly a private issue, I think, strikes me as incoherent. Also, the court in the Planned Parenthood case indicated one of the reasons why it supported the Roe versus Wade, even though some of the individual members were against it, was precisely because of this social dimension that women, you know, were planning their lives around reproductive decisions. That's inherently a social reason for supporting Roe.

GROSS: You are, among other things, the ethics consultant for the Catholic Health East Health System.

MCCARTNEY: Right.

GROSS: Do you consult on issues related to abortion?

MCCARTNEY: I sure do. Yes, in fact I just reviewed a policy last week in the Tampa area. One of the major hospitals there, Saint Joseph's, which is part of Catholic Health East, has developed a new association with some of the other hospitals called Bay Care Center.

And we just hammered out a termination policy consistent with the principles of the Catholic tradition, which would be, you can't directly terminate a pregnancy for any reason. But if the health of the mother is jeopardized and you are directly intending to save the life of the mother, you can use a medical intervention even if the fetus dies as a result.

GROSS: Now, how did you arrive at that policy?

MCCARTNEY: Well, the Catholic tradition really believes that it's -- that the fetus deserves protections; an ethical stance that the fetus is a person and deserves ethical protection from the very beginning. And that, you know, Catholic hospitals won't directly terminate life for any reason whatsoever. They will allow for the indirect termination of life through the principal of double effect in order to save the life of the mother.

So for example, if the mother has a cancerous uterus, that uterus can be removed even though it has a fetus in it.

GROSS: What has given you the most difficulty over the years in coming to ethical decisions about abortion?

MCCARTNEY: The most -- let me say first of all, the most pain that I have about this whole decision is the lack of thought that sometimes seems to go into it, in experiences that I've had talking with different people -- that it just becomes an issue -- the court says it's legal, therefore it must be ethical -- and not a real working-through of the issue.

The most difficult ethical dimension, though, would be where it's a situation where -- where a woman really is suffering and there is legitimacy in terms of, you know, some of the concerns. And your, you know, heart has to go out to her and say: "you know, this is a person who's really suffering, and I'll -- trying to understand that, and then putting that in the context of, you know, a religious tradition that, you know, has a very strong position and will not allow for some flexibility there. And you know, that can become painful at times.

GROSS: What's your take now on the abortion debate? You know, abortion has been legal for 25 years, but it's never stopped being debated.

MCCARTNEY: Right.

GROSS: And I'm wondering if -- if you would offer your critique of the debate -- of both sides of the debate -- and how they talk about it.

MCCARTNEY: I think that just in the last few years, there seems to be a willingness to listen more to the other side that wasn't there before. I also...

GROSS: A willingness on both sides to listen to the other side?

MCCARTNEY: Yeah -- on both sides there's been a willingness to try to understand the other perspective, even if they don't agree with it.

But I also think that it is not as much of a front burner issue anymore precisely because of some of the things we said earlier, the RU-486 and other things that are making this become a much less public issue. I mean, just in the last -- maybe five years ago, you had a lot of demonstrations in front of, you know, abortion centers and all. You seem to have that less.

I mean, there was -- you know, of course the outbreak of killings which was -- which was terrible to kill in the name of life -- it's just, you know, a contradiction. But to -- just in the last couple of years, we haven't seen a whole lot of that and it seems to me that the rhetoric is dying down somewhat.

But I do think there's more understanding. And I think also the -- as you pointed out, the imaging techniques and other technologies that we have have, you know, educated people in a way that they weren't educated 25 years ago about what the fetus looks like; what developmental stages it goes through. And I think, you know, both sides of the debate have been benefited by this.

GROSS: Can you think of an example where you have changed your mind on something because of something you've learned from the other side of the debate?

MCCARTNEY: In, specifically, the abortion debate?

GROSS: Yes.

MCCARTNEY: I -- I think that -- I don't know, I feel like I've always, you know, been empathetic to the other side of the debate. I've never been, you know, in -- you know, just unsympathetic to some of the concerns of women on this issue.

And I guess what it -- you know, one thing maybe I've changed through my research on this is, you know, believing that life began right at conception to a notion that life now begins when the neuro-tube is formed -- that, that possibility. Also, I think the trying to justify some termination of pregnancy very early on, you know, as a result of, you know, hearing -- hearing some of the tragedies that some women have to experience.

But I -- you know, I think I've always been fairly sensitive to the other side.

GROSS: My guest is Catholic theologian and bioethicist James McCartney. We'll talk more after a break.

This is FRESH AIR.

Back with Catholic theologian and bioethicist James McCartney.

Do you think there's a fundamental difference between an early abortion and a later abortion? Or, do you think ethically it's the same no matter when its performed? And is -- and especially now that we have pills that can do an abortion very early-on. We have pregnancy testing technology that can detect a pregnancy much earlier than it could be detected before.

MCCARTNEY: Right.

GROSS: So the possibilities of very early abortions are...

MCCARTNEY: Of course, the issue is, you know, when is this an individual apart from the mother? And no one has a, you know, certain answer on that. Even the Catholic Church, which people think has -- doesn't say absolutely. It says it's likely that it happens at fertilization, but it really doesn't say that it's, you know, absolutely so.

And, you know, taking that into context, my own argument, which I've written up and published in a book that I issued about 10 years ago, is that I believe that individuation, becoming of a new person, takes place fairly early in the process, but not right at fertilization -- maybe within 10 days or so, when the -- what's called the "neural streak" forms; when it can be this person and no other; when you can't have identical twins forming or when you can have a fusion of two fertilized eggs to form a chimera.

So when that possibility has ended, then I think it's an individual with -- with protectable rights.

Before then, I still think because it's -- you know, headed toward human life, it deserves respect. However, in those situations, I think it would be possible even within the Catholic tradition some day, although probably not in the near future, to look at the issue, say, of rape and say that, you know, you could have a termination at that time because you're not killing a person. That you are, you know, tragically ending the life, but it's a very difficult situation and, you know, you have to weigh both sides of it.

And I -- so I do think there can be some movement there. Many people, of course, in the Catholic tradition, would disagree with me on that. But I do think in that first 10 or 12-day period, there is some room to -- to reflect. And of course, that would be the situation with RU-438.

If you could kind of rewrite the debate about abortion now, what would you want to hear people debating about? What -- what form would you like to hear the debate take?

MCCARTNEY: If I were rewriting, I would first of all say that Roe probably should not have made this a constitutional issue. I think it has been a real mistake in American jurisprudence, and even in that situation, the court has been inconsistent, because in Bauers (ph) v. Hardwicke (ph), they said that people do not have the right -- the privacy of sex if they're same-sex partners. So you know, there's a lot of inconsistency in the court.

And I think they should not have gotten into this whole area of personal privacy, which is really not privacy in its traditional sense, but personal freedom of decision. And I'd like to see it in terms of the social good, the common good, and possibly allowing states to make laws and legislation and let the people decide some of these issues rather than, you know, saying this is a constitutional given; a constitutional right.

So, I think that has set the debate on a non-winning -- non-winnable situation in terms of the debate, because short of a constitutional amendment now, the courts are not going to change the decision on Roe v. Wade.

GROSS: Let me raise an issue that Art Caplan raised earlier.

MCCARTNEY: OK.

GROSS: And that is, you know, now we have the technology to transfer a kidney from one person to another; bone marrow from one person to another. But if a person needs bone marrow or needs a kidney, it is not your absolute responsibility to give it to them. You have a choice, whether you will give some of your life to support their life.

MCCARTNEY: Mm-hmm.

GROSS: So in that question of what is a woman's responsibility to support a fetus, does the -- do you think that the kind of kidney/bone marrow analogy holds up?

MCCARTNEY: To a certain extent. I mean, that I think that there -- if there ever became a situation where we had an artificial womb that could support life, and a woman didn't want to carry a pregnancy to term, and could -- they could remove the fetus and still keep it alive, sure. I mean, I wouldn't have any problem with that at all. That's not strictly-speaking abortion, you know. It's only abortion if you're intending to kill the fetus.

So yeah, if we had that technology, yes. But since we don't, the intention to abort is also an implicit intention to kill at this particular time. And as far as: does one have a responsibility to provide life to another person? I think one of the issues is: how close are you to that person? If it's a sibling or the spouse or if it's a child, you probably have more of a responsibility, you know, to provide that than you do if you were just a casual acquaintance.

And so, you know, the relationship between a mother and fetus is a pretty close one.

GROSS: How do you see your role in the abortion debate as a Catholic moral theologian?

MCCARTNEY: I see it as one of trying to get both sides to talk to one another; to listen; to develop a deeper respect for life, knowing that there's probably never going to be in a pluralistic society, full agreement on this issue. But to see that, you know, this issue is connected to a lot of others that there's a lot of debate about -- for example, capital punishment and euthanasia and all the other life issues. And I think that if I can get people thinking about the importance of the dignity of human life, respect for life, you know, maybe we can find common cause and develop a theory of a seamless garment that says that all life is sacred.

GROSS: How much do you allow science to shape your views as, you know, a Catholic theologian?

MCCARTNEY: Very -- very much. I have a masters degree in biology and teach philosophy of biology and you know, I'm fairly knowledgeable about contemporary science.

GROSS: And you don't see them as being at odds -- your religion and science? You use science to inform your religious...

MCCARTNEY: They can be at odds...

GROSS: ... (unintelligible)...

MCCARTNEY: ... they can be at odds, but they don't -- they need not be.

GROSS: Mm-hmm.

MCCARTNEY: I think you can, you know, faith is faith and science is science. And one can still believe in contemporary science, even evolution and still, you know, be a person of faith and still believe that there's -- that the purposes of love are unfolding in the love and, you know, to kill is still against the purposes of love, even if there isn't a master design at the beginning which contemporary biology would reject.

GROSS: Well James McCartney, I want to thank you very much.

MCCARTNEY: OK.

GROSS: James McCartney is a Catholic theologian and bioethicist. He chairs the philosophy department at Villanova University.

Earlier, we discussed the new reproductive technologies and the ethics of abortion with bioethicist Art Caplan.

I'm Terry Gross.

Dateline: Terry Gross, Philadelphia
Guest: James McCartney
High: On the 25th anniversary of Roe v. Wade, we talk to medical theologian, Dr. James McCartney about the abortion debate. McCartney, the chair of the Department of Philosophy at Villanova University just outside Philadelphia and the ethics consultant for the Catholic Health East Health System, says advances in medical technology have helped the anti-abortion argument, by showing the fetus as a person earlier on.
Spec: Religion; Abortion; Health and Medicine; Roe v. Wade; Politics; Government
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End-Story: James McCartney
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