Should pregnancy help centers offer postnatal financial support to reduce the incidence of abortion?

AuthorGilles, Stephen G.
PositionSpecial Issue Commemorating the Life and Works of Judge Robert H. Bork

INTRODUCTION

Judge Robert Bork "objected to Roe v. Wade the moment it was decided, not because of any doubts about abortion, but because the decision was a radical deformation of the Constitution." (1) When it came to the morality of abortion, Bork tells us that he initially "adopted, without bothering to think, the attitude common among secular, affluent, university-educated people who took the propriety of abortion for granted, even when it was illegal." (2) By the time he wrote Slouching Toward Gomorrah: Modern Liberalism and American Decline, Judge Bork had changed his mind. His chapter on "Killing for Convenience" includes a trenchant critique of many of the arguments commonly offered to justify the morality of elective abortion, and a succinct account of the case for treating every biologically human organism--regardless of its stage of development--as a human being and person. (3) The chapter closes with this unforgettable peroration:

The systematic killing of unborn children in huge numbers is part of a general disregard for human life that has been growing for some time. Abortion by itself did not cause that disregard, but it certainly deepens and legitimates the nihilism that is spreading in our culture and finds killing for convenience acceptable. We are crossing lines, at first slowly and now with rapidity: killing unborn children for convenience; removing tissue from live fetuses; contemplating creating embryos for destruction in research; considering taking organs from living anencephalic babies; experimenting with assisted suicide; and contemplating euthanasia. Abortion has coarsened us. If it is permissible to kill the unborn human for convenience, it is surely permissible to kill those thought to be soon to die for the same reason. And it is inevitable that many who are not in danger of imminent death will be killed to relieve their families of burdens. Convenience is becoming the theme of our culture. Humans tend to be inconvenient at both ends of their lives. (4) There is much to agree with in Judge Bork's somber assessment of where we may be heading. Yet the number of abortions annually in the United States has fallen from a high of 1.6 million in 1990 (5) to 1.06 million in 2011, the most recent year for which data is available. (6) When Judge Bork wrote about abortion as a moral wrong and social problem in 1996, roughly three in ten pregnancies ended in abortion. (7) In 2011, slightly more than two in ten did. (8) Those are still appalling statistics for anyone who thinks that abortion is gravely wrong in all or almost all circumstances. Nevertheless, the fact that an unborn child's chances of being aborted have fallen by roughly one-third over the past eighteen years suggests that all is not lost. At least when it comes to abortion, the "general disregard for human life" Judge Bork lamented seems to be shrinking rather than growing.

Much of the credit for the steady decline in the number of abortions undoubtedly goes to the unflagging efforts of the pro-life movement on multiple fronts--including electoral politics, legislation, litigation, education, counseling, and various forms of help and support for women considering whether or not to terminate their pregnancies. Especially important, as the late Bill Stuntz suggested, are the thousands of pregnancy help centers that pro-life organizations and churches have established over the past thirty years. "Those centers lack the power to punish or coerce, but they seem to have the power to change lives: not with rules and threats, but with mercy and relationship." (9)

In this essay, I will consider the arguments for and against providing financial (that is, monetary) aid to pregnant women, in addition to the in-kind aid that pregnancy help centers currently provide. My analysis-- which is meant as a "think-piece" that will provoke further discussion and exploration of the issue--leads me to suggest that a post-natal financial-aid program would be worth trying on an experimental, pilot-program basis. But even that tentative conclusion assumes that the necessary funds could be raised without reducing the resources currently available to pregnancy help centers. With that in mind, I will conclude with some thoughts on the urgent need for pro-life Americans to put their money where their moral views are. Much of my analysis throughout will be economic in character--appropriately so, in a contribution to a volume honoring a man who was a celebrated pioneer of the "law and economics" movement long before he became a champion of the unborn. (10)

  1. THE STATUS QUO: A PRE-NATAL MORAL AND MATERIAL SUPPORT, BUT NOT POST-NATAL FINANCIAL AID

    The pro-life movement has developed an extensive nationwide network of some 3000 "pregnancy help centers" that offer help and support to women facing unplanned pregnancies. (11) The help can take many different forms, both moral and material. Pregnancy help centers often provide far more than just pregnancy tests, ultrasounds, and counseling. Many centers arrange for pre- and post-natal medical care, provide maternity and baby clothes, provide housing and legal assistance, and even offer job training. (12) Some centers may also try to arrange for modest financial support during pregnancy for especially needy women.

    Even pre-natal money payments to the pregnant woman, however, are the exception, not the rule. No pro-life organization of which I am aware routinely offers pregnant women significant monetary aid during pregnancy, let alone after giving birth. Yet because difficult financial circumstances are among the reasons most commonly cited by women as factors in their decisions to abort, there is good reason to think that post-natal financial aid could induce many women to forego abortions. (13) Of course, there are numerous other reasons why women have abortions, some of which have nothing to do with money. Many reasons, however, fall somewhere in between: financial aid won't remove the problem, but it could ameliorate it. For example, a young woman who sees herself as not mature enough to have a child might feel less immature if she knew that she and her child would have some savings to draw on during its infancy. Even modest amounts of post-natal financial aid might tip the balance for some women in a way that in-kind aid alone does not.

  2. LEGAL CONSIDERATIONS AND OBSTACLES

    For several reasons, it would be legally and practically unworkable for a pregnancy help center to pay a woman a lump sum early in pregnancy in exchange for her promise not to terminate her pregnancy. Quite apart from constitutional law, at common law courts typically refuse to order specific performance of contractual obligations to perform personal services. (14) Thus, if the woman took the money and proceeded to have an abortion, the pregnancy help center's only remedy would be to seek the return of its money. Even that remedy might not be available: courts might invoke the woman's constitutional right to an elective abortion as evidence that the contract is against public policy, and hence unenforceable. And in any event, collecting the money from a woman who was needy to begin with would almost certainly be a fruitless task.

    These obstacles, however, would not apply to arrangements that don't rely on judicial enforcement to induce the woman to make and keep a promise not to abort her child. The pregnancy help center could promise to make a lump-sum payment to the mother once her child was born. (15) The agreement wouldn't purport to limit the woman's legal right to an abortion in any way; however, because the payment would be contingent upon the child's live birth, the woman would have an additional incentive not to choose abortion. This financial support would supplement, not supplant, the wide range of in-kind aid pregnancy help centers typically offer during pregnancy.

    Another potential legal impediment to post-natal financial assistance is our society's dubious but universal prohibition on the sale of parental rights. (16) Prima facie, these offers would avoid that prohibition by leaving the mother's post-natal parental rights intact. If the mother wants to keep the child, she is entitled to do so (provided she meets the state's ordinary criteria for fitness). If she wants to put the child up for adoption, she may elect that alternative. In the latter situations, however, a post-natal payment to the mother could be misconstrued as a quid pro quo for her agreement to relinquish her parental rights. For that reason, it would probably be prudent for the financing charity to avoid any involvement in placing the child for adoption.

  3. HOW MUCH POST-NATAL FINANCIAL SUPPORT SHOULD BE OFFERED?

    In designing a program of post-natal financial support, deciding on the amount to be offered is obviously a crucial issue. A helpful starting point for analysis is the average fee paid to a surrogate mother, which is currently approximately $25,000. (17) If the funding were available, that sum would arguably be a good one to use, at least at the program's inception. If pregnancy help centers offered to pay $25,000 to every pregnant woman once her child was born, they would be sending a powerful message: the pro-life movement is willing to compensate a woman for the burdens of pregnancy and childbirth, while leaving her free to decide, after her child is born, whether she will raise it or relinquish it for adoption. At the same time, the centers would be offering a financial incentive that would likely be sufficient to induce considerable numbers of women who would otherwise have abortions to carry their children to term.

    But of course the funding would not be available. Even if it were possible to distinguish with perfect accuracy the roughly one million women who will have an abortion in the United States each year from the roughly four million women who will give birth, to pay each of them $25,000 would cost $25 billion per year. (18)...

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