The Malta Independent 24 October 2021, Sunday

Texas on abortion

Pierre Mallia Sunday, 12 September 2021, 09:01 Last update: about 2 months ago

The US State of Texas has just passed a law stating that abortion after six weeks cannot be allowed. Actually, that is what the media and pro-choice groups have been reporting. In actual fact the law, as the BBC reported, states that abortion cannot take place once there is a heartbeat. This comes as a surprise on the one hand as Texas is the place where Roe vs. Wade started, a case which went up to the US Supreme Court and decided in favour of a woman's right for an abortion and had adjudicated a limit of three months into pregnancy at the time. Conversely it is a conservative state mostly and therefore this was to be expected sooner or later.

By the time Roe vs. Wade ended, the baby girl had been born and she is now an anti-abortion advocate; so is her mother. The case obviously took long to be decided but continued onwards to express a point. This led to a series of serious debates about abortion world-wide and the battle continues till today. Mexico has just followed suit and made abortion illegal and the Texans are now worried that they would have nowhere to go, when before this would have been an option it seems.

The question of a "heartbeat" is interesting and puts forward an important point. The heart is not only an organ, which establishes circulation, but people and significant weight to it. I recall the case of a British pathologist who had been taking dead children's organs for studies without obtaining parental consent in the 1990s. He had his licence removed. One parent actually said that had it been his son's kidney it would have been one thing, but the fact that he buried his son without his heart made it even more difficult. The heart is fraught with too many human expressions to ignore - a good heart, bad from the heart, the heart of the issue, the sacred heart, and so on. It certainly makes what we would call ontological value, where previously trying to establish where to put a moral value on the embryo centred mostly on the nervous system from the primitive streak to the brain. Incidentally in the times of Dante, and this can be found in his writing, God (moto primo) out a soul the fetus once there was a brain.

Now an interview of a gynaecologist by the BBC said that at six weeks, which seems the date that people have fixated on, there is only an electrical impulse. This is not completely true as the tissue of the heart develops concurrently - the impulse has to be in the tissue - it is not an "outside wire". But be that as it may she was concerned of course about the loss of work and that women's rights have been violated.

It remains a fact that if countries are to seek solutions on abortion there have to be criteria. One cannot allow people to kill babies when they are fully formed and approaching delivery. So countries have resorted to arbitrary time-lines. When Portugal introduced abortion it made it at two months. There was no outcry. Spain had it at three months. In the UK it is illegal but one can have an abortion up to just over mid-pregnancy for health reason; and in Ireland, just before the referendum it was only for medical reasons - but it was not really implemented well. Many remember the three women who took their cases to the European Court of Justice. Moreover, the case of Savita Halappanavar. She died of a Septic shock when the doctors knew that her fetus was going to die. They did not induce the delivery because there was still a heart-beat (there it goes again - the brain, after all dies after the heart by a few minutes). Nevertheless, oralists argued that sine the intension was not to bring about the death but to deliver the mother from her pain and indeed to avoid further risks, the principle of double effect could have been applied. It simply went to show that this principle is useless in clinical practice unless it is decided and agreed upon internationally. In reality the principle of double effect, although a philosophical argument and applied by other religions, is in fact a doctrine (as is referred to as such - doctrine of double effect). Therefore, it is the magisterium of the Church that has to agree ultimately. Clinically we can only make choices based on clinical grounds and this will consequently avoid the issue of direct or indirect (killing), which, in certain circumstances make sense - I had spoken about the issue of ectopic pregnancies in the first article of this column.

Six weeks, contrary to the arguments presented, are in fact enough to know that one is pregnant. What is not enough is the time to give the woman to process this information. One can wonder through what turmoil she may be going through. It is probably not even enough to make an appointment with the doctor who has the relevant questions she needs to answer in order to live with the choice. But to argue, on the other hand, that some would not even know, is a naïve excuse. If one is not planning to have a baby and has had intercourse, one can find out that one is pregnant very early on nowadays. There is also emergency contraception, and, before that, if one is sexually active, why is she not on contraception? Of course, there are crimes and exceptions which may have to be made in this case. An innocent girl may have been drugged and not realized she was raped.

This bring us to the other naïve argument brought forth by the governor, who on CNN was televised responding to a question on rape. He admitted that rape is a violation of a woman's body and that he will do everything to prevent it. Now how he is going to do that, only God knows. Had he said that they will do their best to educate, increase penalties, escalate efforts to catch the individuals, one could sympathise, but to say he is determined to eliminate rapists is rather naïve and does not make even philosophical sense, let alone political.

The truth is that this is not only about the rights of the fetus but also about the rights of the woman. I remain convinced that reaching out to each other by accepting that a woman has a right to decide her fate, after counselling, if her body was violated. Indeed, she may remain traumatized for the rest of her life. She ought to have a choice in the decision whether to keep a baby or not. Then if there are clear medical indications, even towards the end of pregnancy, and especially if the life of the woman is in danger, then again, it is her right and no doctor can act against a patient's wish - in my opinion even the magistrate on call ought to consider this (but I am not a lawyer). That abortion is considered an outright choice, no matter the reason, is taking things too far. Women are the custodians of life. They have means to decide beforehand. We can defend their rights when these are violated and allow a woman to make a choice. But to give the impression that unborn children are being used to assert rights in a fight against those who oppress/ed women is working against their very advancement in society. It is not a reproductive right; this has been accomplished once pregnancy is established, even if pregnancy has its dangers.


Pierre Mallia is Professor of Family Medicine and Patients' Rights and teaches at the University of Malta. He chairs the Bioethics Research Programme of the Faculty of Medicine and Surgery. He also chairs the Bioethics Consultative Committee.

This article is his personal opinion and does not represent the opinion of any committee or Board he serves on.


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