Cole, Leonard A.

English

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THE END OF THE ABORTION DEBATELEONARD A. COLEtI.As the decade ends, advocates and opponents of abortion rightsare demonstrating with heightened fervor. Lawyers continue to pre-pare briefs for a lengthy docket of abortion cases, and elected offi-cials dread having to vote on the matter. But there is reason tobelieve that this seemingly intractable issue is approaching an uncer-emonious solution.The intensity of feelings will not suddenly disappear, but duringthe next few years recognition will likely seep into the national con-sciousness that the grounds for the debate have irrevocably changed.The energy presently devoted to influencing political and legal insti-tutions will ultimately subside in the face of a new technological real-ity, the French abortion pill. This is said not to pass judgment on thepill's propriety, nor on the positions of the protagonists on eitherside of the abortion question. Like genetic engineering, nuclearpower, and automobiles, the pill is a technological development thatwill comfort some and distress others, but all will feel its impact.The abortion pill, named RU486, only recently began drawingpublic attention, and many protagonists in the abortion debate havenot yet absorbed its public policy significance. The logic aboutwhere the pill will lead is so compelling, however, that people arebound increasingly to recognize the likelihood of its social conse-quences. As they do, many will question whether the energy andanxiety now so rampant will continue to have purpose.II.RU486 is a steroid that was synthesized by Dr. Etienne-EmileBaulieu in 1980. Roussel-Uclaf, a French drug company, holds thepatent and has supplied the chemical to investigators around theworld. Clinical trials are underway in about 20 countries, includingFrance and China, where the drug is approved for use.The pill is an antagonist of progesterone, a hormone that is nec-t Adjunct professor, Department of Political Science, Rutgers University,Newark; Ph.D. Columbia University, 1970.(217)218 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:217essary for the uterus to retain a fertilized egg. Progesterone servesseveral functions during pregnancy, including conditioning the celllining of the uterus to accept embryo implantation, and suppressinghormone action that triggers menstrual cycles. RU486 "fools" pro-gesterone receptors on the cell lining and attaches to them in placeof the progesterone. In this way it blocks progesterone action. As aresult, the pill prevents implantation or retention of the embryo atearly stages of pregnancy, and the uterine lining breaks down. Thesystem dispels the fertilized egg along with the sloughed lining.During the first nine weeks of pregnancy, a single dose ofRU486 followed a day or two later by a suppository containing pros-taglandin, induces an abortion in nearly all cases. Prostaglandin is anaturally occurring hormone that is also antagonistic to the action ofprogesterone. Although the reliability of pill-induced abortions fallsafter the tenth week, investigations with other chemicals and combi-nations show promise into the second trimester. But, the presenttechnology alone could deal with most American abortions becausemore than half occur during the first 8 weeks of pregnancy.The pill's availability for widespread use in France did not comeeasily. After finding the pill safe and effective in clinical trials duringthe early 1980s, Dr. Baulieu campaigned to make it generally avail-able. The Roussel company responded slowly, evidently concernedabout opposition from antiabortionists. After receiving encourage-ment and approval from the French government, however, Rousselannounced that it would make the drug available in the fall of 1988.In October of that year, the company suddenly announced it had sus-pended plans to produce the pill because of public protests and boy-cott threats. Coincidentally, the World Council of Gynecology andObstetrics was meeting in Rio De Janeiro at the time of theannouncement. The company's decision incensed many of the 9,500physicians and medical experts in attendance. One groupannounced it was preparing a list of Roussel's products that peopleshould boycott.'The French government, which owns 36% of Roussel-Uclaf,responded to the company's announcement by calling the drug "themoral property of women," and ordered Roussel to reverse itselfI See Simons, A Medical Outcry Greets Suspension of Abortion Pill, N.Y. Times, Oct.28, 1988, at 1, col. I.THE END OF THE ABORTION DEBATEagain.2 The company complied, and since November 1988, RU486has been available to French physicians and hospitals.The increasing number of women who choose pill abortionsrather than surgery is a good gauge of the drug's popularity. Injuly,1989 the pill accounted for approximately 15% of French abortions,but by October the proportion rose to about 30% and was stillclimbing. According to Andre Ulmann, Roussel's medical director,about 30,000 French women used the pill in the eleven months fol-lowing its general availability.3The abortion pill induces bleeding comparable to a menstrualperiod for about a week, and a few patients feel slight nausea andcramps. Complications are rare, but the drug is best taken under aphysician's care because of the potential for heavy bleeding.Although researchers and physicians have found the pill largelyeffective and safe, there may be yet unknown long term healtheffects, as recent studies suggest may be the case with contraceptivepills. Several observers consider long term problems unlikely, how-ever. Clinical tests with RU486 since 1982 have not revealed unto-ward effects in the ensuing years and, unlike birth control pills thatmust be taken on a regular basis, the abortion pill requires a singleadministration. The drug metabolizes quickly; three-quarters is dis-sipated within two days.Beyond efficacy and safety lie other advantages. Unlike surgicalabortions, the pill eliminates the risk of injury or infection from phy-sicians' instruments, as well as anesthesia complications. No tech-nique could be easier, more private, or cheaper. An abortion pillcosts only a few dollars, a surgical abortion a few hundred dollars.Under the French social security system, women have had to pay thesame amount, about $140, for chemically or surgically induced abor-tions. The growing number of French women who choose the pilltherefore offers all the more testimony to its appeal. If patients hadto pay the cost differential for surgery, the rush to the pill doubtlesswould be faster, but the simplicity and privacy of treatment by thepill alone have been a strong incentive.III.The pharmaceutical companies' fear of the reaction from abor-2 See Henry, Production of Abortion Pill Ordered, Baltimore Sun, Oct. 29, 1988, at 1,col 1.3 See Herman, The Politics of the Abortion Pill, Wash. Post Health, Oct. 3, 1989, at12, col. 2.1989]220 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:217tion opponents has been the biggest obstacle to bringing RU486 tothe United States. Antiabortion groups have announced that theywill boycott any company that seeks to market the drug in this coun-try. Indeed, shortly before the French government's 1988 endorse-ment of RU486, David N. O'Steen, executive director of the NationalRight to Life Committee in the United States, threatened such actionagainst the French company and its affiliates. In a letter to theFrench Ambassador in Washington he wrote:If Roussel-Uclaf or any other pharmaceutical company attempts tomanufacture or market RU486, National Right to Life would seri-ously consider joining with other pro-life groups around the worldto initiate a boycott of the products of Roussel-Uclaf and firms affil-iated with it through its parent company Hoechst in the FederalRepublic of Germany.4The French government ignored the threats, and to date there havebeen no reported effects on Roussel-Uclaf sales.Nevertheless, antiabortion groups continue to raise the boycottspecter. Dr. John Willke, who heads the National Right to Life Com-mittee, says that any company marketing an abortion agent in theUnited States "will be hit with an instant, massive, national boycottof every product they [make], except those where there are no otheralternative drugs."5 In addition to concern about boycotts, drugcompanies worry about product liability, especially in the birth con-trol area. Legal defense and insurance costs involving the birth con-trol pill have discouraged some from marketing oral contraceptives.By the early 1980s, liability costs climbed higher in this area than forother drug categories.6In any case, no company legally could market the abortion pill inthe United States during the next two or three years because theFood and Drug Administration must approve the manufacture anddistribution of all new drugs, and its safety and effectiveness reviewtakes at least a few years. Moreover, the antiabortion White Houseprobably would not encourage an expedited review. Thus, despitethe promise of profits for the first company that brings the pill to theUnited States, the effort faces obstacles and risks.4 Letter from David N. O'Steen to His Excellency Emmanuel deMargerie,Ambassador of France (June 21, 1988) (on file with the University of Pennsylvania LawReview).5 Chapman, The Politics of the Abortion Pill, Wash. Post Health, Oct. 3, 1989, at 13,col. 2.6 See Djerassi, The Bitter Pill, 245 SCIENCE 356, 357 (1989) (discussing a 1982report by the Office of Technology Assessment).THE END OF THE ABORTION DEBATEYet it is hardly inconceivable that the government can keep thepill out of this country. As RU486's popularity grows in France,Roussel-Uclaf will manufacture more. In addition, other countriesincluding Great Britain and the Netherlands are moving closer topermitting domestic distribution, and some stock is bound to appearin the United States; all the sooner if the Supreme Court or stategovernments substantially restrict abortion rights. If all Americanabortion clinics closed and the federal and state governmentsdeemed the pill contraband, nothing could stop the tablets from get-ting into this country. Many people believe that making RU486available here would be an act of high moral purpose, whatever thedrug's legal status. Some have even coldly confided to me that ifabortion were illegal in the United States, they would not expect toreturn empty handed from an overseas visit.In making this observation I do not endorse unlawful activity,but merely present a realistic scenario. People drank liquor when itwas illegal and smoke crack today. Even people in poor economiccircumstances will not be denied a substance they dearly want, ascocaine and heroin addicts demonstrate daily. How much simplerfor a person to obtain a contraband tablet or two than an endlesssupply of illegal narcotics.The strength of commitment in the medical community to mar-keting the abortion pill may be gleaned from the vigorous objectionsraised by the thousands of physicians at the 1988 Rio conference,when Roussel tried to suspend distribution plans. American abor-tion rights leaders have suggested they will settle for nothing lessthan the pill's availability here. Molly Yard, president of the NationalOrganization for Women, said her organization would meet withdrug company officials to encourage research and distribution. Asfor keeping RU486 out of the United States, she said, "I know thefeminist community will not allow it." 7 As long as companies pro-duce the pill in France or anywhere else, its ultimate accessibilityhere is assured.IV.There is a precedent for the contentiousness related to the abor-tion pill. A generation ago the legality of contraceptive devicesdivided much of the nation. Then, as now, there were harsh debates.In August 1966, a group of pickets carried signs in front of New York7 Chapman, supra note 5, at 13, col. 2.1989]222 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:217City's St. Patrick's Cathedral claiming that "Rome fiddles as theworld yearns for birth control." Although the civil rights March onWashington was held three years earlier, demonstrations for socialor political causes were not yet commonplace. A news report saidthe contraception rights demonstration was "the first protest thatcould be recalled taking place before the cathedral itself."8 In tak-ing this action, contraception rights advocates conveyed theirextraordinary sense of purpose.The opposition was no less determined. The American RomanCatholic Bishops issued a statement that deplored "pressures for acontraceptive way of life" and government activities that "seekaggressively to persuade and even coerce the underprivileged topractice birth control." 9 Meanwhile, the then recently created birthcontrol pill was becoming popular, and the new technology settledthe contraception argument as much as the government decisiondid. A few years later, the birth control issue faded from the publicagenda.Not all the mid-1960s conditions are analogous to today's.Unlike the current executive branch which unambiguously opposesabortions, the 1960s White House was not involved in the birth con-trol debate. Moreover, the Supreme Court had just issued Griswold v.Connecticut.'0 The Griswold Court held that states could not interferewith a married couple's right to use birth control devices, and thisdecision lent momentum to contraception rights efforts. No courtedict, however, could suddenly uproot an individual's moral ration-ale for opposing birth control, a justification that arises from atti-tudes, feelings, and values. Nevertheless, once the contraception pillwas available, its widespread use became matter of fact, and ques-tions about whether or not it should be used became irrelevant. Atechnological reality defused the controversy.The intensity of conviction on both sides of the abortion ques-tion is greater for many than it was with birth control, and a politicalaccommodation on abortion seems beyond reach. If the courts con-tinue to protect abortion rights, opponents will remain angry. Ifstates restrict abortion, abortion rights advocates will chafe, but Roev. Wade1 1 created new conditions and new expectations.The legal norm that has prevailed during the past 16 years has8 N. Y. Times, Aug. 13, 1966, at 14, col. 2.9 N. Y. Times, Nov. 15, 1966, at 25, coT. 1.10 381 U.S. 479 (1965).11 410 U.S. 113 (1973).1989] THE END OF THE ABORTION DEBATE 223strengthened the sense of legitimacy that abortion rights advocatesfeel. The number of physicians, nurses, counselors, and others will-ing to help facilitate abortions will be greater than before Roe,whatever the government says; so will the number of women whowant an abortion and believe that having one is their right.Any government attempt to revoke this perceived right willleave battalions of citizens prepared to act in defiance. The earlypregnancy abortion pill can only make their efforts easier. In theend, this new technology is likely to render early pregnancy abor-tions as much a nonissue as birth control is today, and in the processwill have rescued the nation from a political nightmare.

End of the Abortion Debate

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End of the Abortion Debate

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