In the nearly four decades since the Supreme Court ruled that women have a fundamental right to decide to have an abortion, the opposition to legal abortion has increased dramatically. Opponents use increasingly sophisticated arguments - focusing on advances in fetal medicine, stressing the rights of parents to have a say in their minor children's health care, linking opposition to abortion with opposition to war and capital punishment, seeking to make abortion not illegal but increasingly unavailable - and have succeeded in swinging public opinion toward their side.
Meanwhile, those of us in the abortion-rights movement have barely changed our approach. We cling to the arguments that led to victory in Roe v. Wade. Abortion is a private decision, we say, and the state has no power over a woman's body. Those arguments may have worked in the 1970s, but today, they are failing us, and focusing on them only risks all the gains we've made.
The "pro-choice" brand has eroded considerably. As recently as 1995 it was the preferred label of 56 percent of Americans; that dropped to 42 percent in 2009 and was 45 percent in 2010, according to Gallup polls. And abortion rights are under attack in Congress. The House passed a bill on Friday that would strip federal funding from Planned Parenthood, one of the most important providers of reproductive health services for poor women. Another proposed House measure would make it impossible to buy private insurance covering abortion. Anti-choice Republicans are so secure that Rep. Joe Pitts of Pennsylvania, a leader of this wing, has introduced an act which will allow hospitals to deny an abortion even if the pregnant woman's life is at risk. Meanwhile, 29 governors are solidly anti-abortion, while 15 states passed 39 laws, most of them restrictive, relating to abortion in 2010 alone.
Pro-choice advocates have good reason to oppose legislation that restricts abortion in any way, but unfortunately we're not going to regain the ground we have lost. What we must do is stop holding on to a strategy that isn't working, and one that is making the legal right to abortion more vulnerable than ever before.
We can no longer pretend the fetus is invisible. We can no longer seek to banish the state from our lives, but rather need to engage its power to improve women's lives. We must end the fiction that an abortion at 26 weeks is no different from one at six weeks.
These are not compromises or mere strategic concessions, they are a necessary evolution. The positions we have taken up to now are inadequate for the questions of the 21st century. We know more than we knew in 1973, and our positions should reflect that.
The fetus is more visible than ever before, and the abortion-rights movement needs to accept its existence and its value. It may not have a right to life, and its value may not be equal to that of the pregnant woman, but ending the life of a fetus is not a morally insignificant event. Very few people would argue that there is no difference between the decision to abort at 6 weeks and the decision to do so when the fetus would be viable outside of the womb, which today is generally at 24 to 26 weeks. Still, it is rare for mainstream movement leaders to say that publicly. Abortion is not merely a medical matter, and there is an unintended coarseness to claiming that it is.
We need to firmly and clearly reject post-viability abortions except in extreme cases. Exceptions include when the woman's life is at immediate risk; when the fetus suffers from conditions that are incompatible with a good quality of life; or when the woman's health is seriously threatened by a medical or psychological condition that continued pregnancy will exacerbate. We should regulate post-viability abortion to include the confirmation of those conditions by medical or psychiatric specialists.
Those kinds of regulations are not anti-woman or unduly invasive. They rightly protect all of our interests in women's health and fetal life.
Even abortions in the second trimester, especially after 20 weeks, need to be considered differently from those that happen early in pregnancy. Women who seek abortions in the second trimester generally have special needs and would be helped by more extensive counseling than that available at most abortion clinics. Women who discover their fetuses have anomalies, teens who did not recognize they were pregnant, women who could not make up their minds - these are not routine circumstances. Mandating and funding non-directive counseling on all options is a good thing.
Finally, the abortion-rights movement needs to change the way it thinks about the state. Right now government is mainly treated as the enemy - and it does neglect women's needs. The new ultra-conservative members of Congress are fighting to get rid of the legal right to choose abortion. The public is ambivalent about abortion. It wants it to be legal, but will support almost any restriction that indicates society takes the act of abortion seriously. For the choice movement to regain popular support and to maintain a legal right to abortion, it has to work with the state. Society and the state do have a stake in abortion policy. Reproduction is a private matter with public consequences. Women get to decide, but we all get to weigh in on what the policy should look like.
We need to fight to get government to provide resources that women need, from subsidized birth control to better prenatal care. We also need a real effort to reduce maternal mortality and pregnancy complication rates in this country, which Amnesty International has called "shocking."
If the state wants to weigh in with advice and information on abortion, the least it can do is emulate the European system, which has some regulations but then pays for women's abortions and offers good alternatives such as child care, parental leave and health care. We have been demanding that the state mind its own business. That lets government abdicate all responsibility for funding reproductive health care.
We need more responsible and compassionate state policies. But respect for fetal life also requires that men and women take every step possible not to create fetuses they will have to abort. Too often, the movement sounds as we think women have only rights and the state has only responsibilities.
The moral high ground on abortion is not to be found in asserting an absolute right to choose. Instead, it is to be found in the movement's historic understanding that when abortion is illegal, it is poor women who suffer. The abortion-rights movement needs to focus our work on restoring federal and state funds for abortion for women in the military and on Medicaid, a benefit that Congress cut off as early as 1976. We should also work to sensibly regulate abortion facilities - not to prohibit access, but to ensure safety.
Some of my colleagues in the abortion-rights movement will resist even this modest shift on post-first trimester abortions, fearing that any compromise reflects weakness. Give the opposition an inch and they will take a yard. I believe most in the movement share my concerns and hold more moderate positions on abortion than their rhetoric or silence implies. These shifts I am suggesting are not about compromising or finding common ground with abortion opponents. Compromise assumes that there are two parties prepared to give up something in return for settling an issue. Neither opponents nor advocates of legal abortion are willing to do that. But, for pro-choice advocates, standing our ground will mean losing ground entirely.
For too long, abortion has been treated in black and white. Any discussion that deviates from legal or illegal, women or fetus, faces criticism from the twin absolutes of choice or life. If the choice movement does not change, control of policy on abortion will remain in the hands of those who want it criminalized. If we don't suggest sensible balanced legislation and regulation of abortion, we will be left with far more draconian policies - and, eventually, no choices at all.
Frances Kissling is the former president of Catholics for Choice and a visiting scholar at the Center for Bioethics at the University of Pennsylvania.