This part of the chapter begins by considering why neither side in the abortion debate seems to be able to compromise. Then it considers whether the morality of abortion really depends on the status of a fetus as a human being and whether viability of the fetus is really an ethically valid distinction. Finally, this part evaluates whether ethical theories are really helpful in resolving the morality of abortion.

Many advocacy organizations, spokespersons, commentators, and politicians take extreme positions on one side or the other of the abortion debate. In contrast, some ordinary citizens might be willing to compromise on this issue to some extent. Some ordinary citizens who are generally opposed to abortion might be willing to tolerate abortion in some limited circumstances, even when abortion is not absolutely necessary to save the life of the mother. Some ordinary citizens who generally favor choice in abortion might be willing to tolerate restrictions on the availability of abortion in some limited circumstances. Does it have to be all one way or the other? Is there no room for compromise on this issue?

The difficulty of compromise is not limited to the issue of abortion. On many issues of public policy, advocates on each side worry about the “slippery slope.” Advocates worry that if they give up a little now it will force them to give up more in the future. Some people refer to this phenomenon as “the thin edge of the wedge,” or “the camel’s nose under the tent.” This concern over the slippery slope certainly applies to the debate over abortion. Pro-choice organizations worry that allowing any further regulation of abortion would lead us down the slippery slope to more regulation and ultimately prohibition of abortion. Opponents of abortion worry that if exceptions were made to allow abortion in some circumstances the result would be that the exceptions would swallow the rule.

However, when it comes to the debate over abortion, perhaps it is more than merely concern over the slippery slope. Maybe there is another reason that many advocates are unwilling to compromise. As discussed in the following paragraphs, it may be impossible for advocates on either side to compromise without undermining what they perceive to be the ethical basis for their position.

Imagine a scenario in which a pro-choice advocate and an antiabortion advocate talk to each other in an attempt to reach a compromise. The pro-choice advocate says to the opponent of abortion: “I know that you are opposed to abortion. I understand that you think abortion is morally wrong. But surely, even you would be willing to permit abortion in the very limited circumstance when a fifteen-year-old girl is raped by a member of her family?” The antiabortion advocate responds: “Oh, that’s terrible. A fifteen-year-old girl was raped by a member of her family. That’s just horrible. Let me think about it. Can I make an exception to permit abortion in that very limited and very terrible situation? Let me think about it. No, sorry, I cannot make an exception.”

Many people who oppose abortion cannot compromise, because of their perception of what makes abortion morally wrong. Usually, opponents of abortion conclude—or assume—that a fetus is a human being who is entitled to live. If a fetus is a human being who is entitled to live, it is still a human being and is still entitled to live even if it is the product of rape and incest perpetrated on a fifteen-year-old girl. Therefore, many opponents of abortion cannot make an exception that would allow abortion in that very limited circumstance, because making an exception would undermine the perceived ethical basis for their position.

The same thing happens on the other side of the debate. Assume that an antiabortion advocate says to a pro-choice advocate: “I know that you think abortion should be available to every woman on demand. I know that you think abortion is only the choice of the pregnant woman and nobody else’s damn business. But surely even you would be willing to prohibit the particularly gruesome procedure of so-called partial-birth abortion at a late stage of pregnancy?” After hearing the details of that procedure, the pro-choice advocate is visibly shaken, and responds: “That’s just horrible. Let me think about it. Can I make an exception to prohibit that one type of abortion procedure in that one, very limited situation? Let me think about it. No, sorry, I cannot make an exception.”

Like many opponents of abortion, many people who support a right to choose abortion cannot compromise, because of their perception of what makes abortion permissible and solely a matter of individual choice. Usually, supporters of choice conclude—or assume—that a fetus is not a human being who is entitled to live. Supporters of choice also argue that a woman’s autonomy over her own body gives her the right to make her own decision about whether to terminate her pregnancy. If a fetus is not a human being who is entitled to live, that would even apply in cases of so-called partial-birth abortion at a late stage of pregnancy. If a woman’s autonomy gives her the right to make her own decision about whether to terminate her pregnancy, her autonomy would apply even at a late stage of pregnancy. Thus, many supporters of choice in abortion are unable to make an exception that would prohibit one particular abortion procedure in one limited circumstance, because that would undermine the perceived ethical basis for the pro-choice position.

Is a fetus really a human being who is entitled to live? Pope John Paul II wrote that the fetus is a human being from the moment of conception. According to the section of John Paul’s 1995 Evangelium Vitae headed “’Your eyes beheld my unformed substance’ (Ps 139:16): the unspeakable crime of abortion,” this conclusion is not based solely on religious faith or revelation but also on a “scientific” conclusion that human life begins immediately upon fertilization. Pope John Paul II also wrote that even the possibility that a fetus is a human being requires us to treat it as such. Perhaps this is a question that we simply cannot answer. We do not even have a clear understanding or consensus of what it means to be a human being. When Barack Obama was running for president of the United States, he was asked when life begins. He responded that the determination of when life begins was “above my pay grade,” and later clarified that he considers this to be a theological question (Phillips, 2008).

Does it really matter whether the fetus is a human being? Does the morality of abortion really depend on whether a fetus is a human being? Some ethicists, including feminist ethicist Susan Sherwin, argue that the morality of abortion does not depend on the status of the fetus as a human being. In their view abortion may be ethical even if the fetus were a human being.

Sherwin (1992) wrote that “feminist ethics demands that the effects of abortion policies on the oppression of women be of principal consideration in our ethical evaluations” (pp. 104–105). According to Sherwin, nonfeminist arguments in favor of a right to abortion usually are based on concepts such as privacy and freedom of choice, which she describes as “masculinist” concepts that might not meet the needs of women in many cases (pp. 99–100). In contrast, feminist ethics would determine the morality of abortion primarily by considering how various policies would affect the oppression of women. Under this approach, a right to choose abortion is ethical because it would reduce the oppression of women, and it does not really matter whether the fetus is a human being.

Another ethicist, Judith Jarvis Thomson (1971), has argued that abortion may be ethical even if the fetus were assumed to be a human being. Thomson began her analysis by stating her conclusion that a fetus at an early stage is not a person. However, for purposes of argument, she then assumed that a fetus is a human being from the moment of conception, and analyzed whether abortion could still be ethical under those circumstances. Thomson concluded that abortion would be ethical in some circumstances and unethical in others (pp. 65–66). In other words, abortion might be ethical in some situations even if the fetus were a person, but abortion would be unethical in other situations.

Unfortunately, that approach raises problems as a practical matter. It is not clear how we could decide whether abortion is ethical or unethical in any particular situation. Thomson (1971) concluded that abortion would be ethical in the case of “a sick and desperately frightened fourteen-year-old schoolgirl, pregnant due to rape” (p. 65). She also concluded that in some situations abortion would be “positively indecent,” such as when a late-term abortion is performed to avoid the inconvenience of rescheduling a trip (pp. 65–66). But, precisely what makes it unethical or indecent to have a late-term abortion in order to be able to go on vacation? How can we distinguish situations in which abortion would be unethical from situations in which it would be ethical? If we merely use a process of balancing all of the relevant interests, such as the interests of the pregnant woman, the fetus, and society, that could result in carte blanche to do anything we wanted in a particular case and then rationalize it as ethically correct.

Significantly, Thomson (1971) referred to “our sense” of what is appropriate and what is not (p. 65). Perhaps that is the key to the way in which people really make their decisions about the ethics of abortion. People on each side of the debate have their supposed rationale for their respective positions, which they perceive to be based on ethical rules. In fact, the views of people on each side of the debate might be based more on their “sense” of what is right and wrong, or their “gut feeling,” rather than on ethical theories or principles. Perhaps people would be more willing and able to compromise if they were to recognize that their positions are based more on gut feelings than on hard-and-fast ethical rules.

Another issue on which gut feelings may have more impact than ethical principles is the concept of viability. Viability is often used as a dividing line in determining whether an abortion is ethical. Many people make a distinction between abortion at an early stage of pregnancy and abortion after the fetus has become viable. Viability is really a medical concept. Essentially, it refers to the time at which the fetus can survive outside of the mother. In the United States the law on abortion has adopted that distinction between the period of time before the fetus is viable and the period of time after the fetus has become viable. As a general rule, a woman in the United States may obtain an abortion prior to the time of viability, but state governments may impose certain limitations on abortion after the point of viability, subject to certain exceptions.

With advances in medical science, the time of viability has become earlier than in the past, and may become even earlier in the future. There is no indication that these scientific advancements were intended to affect the availability of abortion. However, they may have the unintended effect of reducing the window of time during which a woman has the option to obtain an abortion.

Thus, it is important to consider whether viability of the fetus is an ethically valid distinction. If an abortion would be ethical the day before the fetus becomes viable, would it really be unethical to have an abortion the next day or even the next week, when the fetus is viable? If an abortion would be unethical once the fetus has become viable, would it really have been ethical to have had an abortion the previous day or even the previous week?

If a fetus is really a human being who is entitled to live, that would seem to apply as well to the period of time before viability. If a fetus is really not a human being who is entitled to live, that would seem to make it ethical to perform a late-term abortion during the eighth month of pregnancy. The reality is that using viability as a dividing line is just a compromise, and it might not be an ethically valid distinction. Here again, people seem to make distinctions about abortion on the basis of a gut feeling about what is right, rather than on the basis of ethical theories or principles.

This leads to the final issue to be discussed in this part of the chapter, which is whether ethical theories are useful in resolving the ethics of abortion. If we try to use utilitarianism to answer questions about the ethics of abortion, we still need to decide whether the greatest good for the greatest number includes the good of fetuses. If we try to use Kantian ethics to resolve the morality of abortion, we first need to decide whether fetuses are individuals who are entitled to be treated as ends in themselves. As a practical matter, this threshold issue begs the question. Our decision on such threshold issues is likely to determine the outcome of our ethical analysis under each of those theories of ethics.

If we try to use principlism, or prima facie moral duties, we have to answer another set of threshold questions. Specifically, whose autonomy, beneficence, nonmaleficence, and justice should we consider? We could try to balance the interests of the fetus, the interests of the pregnant woman, and the interests of society. However, that would be an extremely open-ended analysis. We could probably reach any result that we wish, and then we could justify our chosen result by declaring that one moral duty outweighs all the others in this situation. The bottom line is that it does not appear that ethical theories or principles are helpful in resolving the ethics of abortion. Perhaps that is another reason why so many people seem to make their decisions on the basis of their gut feelings.

Assisted reproductive technology (ART) generally refers to a category of fertility treatments in which eggs are surgically removed from a woman’s ovaries, fertilized with sperm in a laboratory by means of in vitro fertilization (IVF), and then placed in the uterus of the woman who provided the eggs or in the uterus of another woman (Centers for Disease Control and Prevention, 2010). This procedure may result in creating more fertilized eggs, or embryos, than are needed by the donors for the purposes of their assisted reproduction. Prior to implantation in the uterus, the embryos might be screened for genetic abnormalities by means of preimplantation genetic diagnosis (PGD). This screening process may provide an opportunity to avoid implanting a particular embryo that has an abnormality and to implant only one or more of the preferred embryos.

The creation of multiple embryos raises the issue of whether surplus embryos should be stored indefinitely, destroyed, donated to other women, or used for medical research. Medical research with embryonic stem (ES) cells, which have the capacity to proliferate continuously and develop into all types of human cells, might lead to treatments for conditions such as Parkinson’s disease (Ethics Committee of the American Society for Reproductive Medicine, 2009).

Not surprisingly, ART and research with human ES cells are controversial and raise complex ethical issues. For those who believe, as the Catholic Church does (John Paul II, 1995), that human life begins at the time of fertilization, an embryo is a human being who is entitled to live, and its destruction is equivalent to abortion or murder. In fact, the position of the Catholic Church on ART goes further than condemning the destruction of unused embryos. Catholic teachings also oppose the use of IVF, because intercourse is replaced by a laboratory procedure and because the seminal fluid is obtained by means of masturbation (United States Conference of Catholic Bishops, 2009).

In contrast, others believe that human embryos, while deserving of respect, are not human beings with the same rights as adults or children. Under this view, research with human ES cells can be ethical “if it is likely to provide significant new knowledge that will benefit human health and if it is conducted in ways that accord the embryo respect” (Ethics Committee of the American Society for Reproductive Medicine, 2009, p. 668).

Other aspects of ART may also raise ethical concerns, even for those who believe that embryos are not human beings. Rather than using PGD to avoid genetic abnormalities, prospective parents might use PGD to create a potential organ donor or stem cell donor for an existing child (Verlinsky and others, 2001). Other prospective parents might use PGD to screen embryos for desired traits, such as gender, height, hair color, intelligence, or athletic ability (Sandel, 2004). The quest for “designer genes” raises the specter of eugenics and the possibility that some people might try to create a “master race.” Even if the use of PGD and other techniques of ART were carefully regulated, these techniques would inevitably be more available to wealthy individuals and residents of wealthy countries than to everyone else. This disparity would raise concerns under the ethical principle of justice. In addition, it might be more ethical to devote limited health care resources to interventions that would have more impact on public health, in accordance with the economic concept of opportunity cost and the ethical principle of utilitarianism.

Emergency contraception (EC), which is also known as Plan B, can be used to prevent pregnancy after unprotected sex or after failure of another method of contraception. EC is not the same as medical abortion by means of RU-486, a pharmaceutical method of terminating a pregnancy. EC does not terminate a pregnancy, and it operates before implantation. However, EC must be taken within seventy-two hours after unprotected sex.

Several ethical issues arise in connection with EC. As with abortion there is a threshold issue of whether EC itself, or the mere use of EC, is ethical. Second, is it ethical to require people to obtain a prescription from a physician in order to gain access to EC? Put another way, would it be more ethical to make EC available over the counter (OTC), that is, without a prescription from a physician? Third, may health care professionals and health care institutions refuse to provide EC—or any other health care service—if they object to that service on ethical grounds?

Just as people disagree about whether abortion is unethical, people also disagree about the ethics of using EC or any other form of contraception. In the Philippines, for example, approximately 80 percent of the population is Roman Catholic. In November of 20082008, the Catholic Bishops Conference of the Philippines (CBCP) opposed some aspects of a reproductive health bill then under consideration by the Philippine legislature, on the ground that contraception is abortion:

The current version of the Bill does not define clearly when the protection of life begins. Although it mentions that abortion is a crime it does not state explicitly that human life is to be protected upon conception as stated in the Constitution. This ambiguity can provide a loophole for contraceptives that prevent the implantation of the fertilized ovum. The prevention of implantation of the fertilized ovum is abortion. We cannot prevent overt abortions by doing hidden abortions. It is a fallacy to think that abortions can be prevented by promoting contraception. Contraception is intrinsically evil (CCC 2370, Humanae Vitae, 14) [Catholic Bishops Conference of the Philippines, 2008].

Of course, many people would disagree with the proposition that contraception is “intrinsically evil” and would dispute that contraception is the same as abortion. In fact, advocates of contraception point out that the availability and use of contraceptives can have the effect of reducing the number of abortions.

Assuming that the use of contraceptives, including emergency contraception, is ethical, is it ethical to limit access to EC by requiring people to obtain a prescription from a physician before receiving EC? In other words, would it be more ethical to make EC available over the counter? It might seem that making EC, or any other drug, available on an OTC basis should be merely a medical issue or a regulatory issue, with the outcome depending on the drug’s safety and potential for misuse. Unfortunately, in the case of EC, availability without a prescription has become an ethical, religious, and political issue. In the United States the Food and Drug Administration has essentially compromised between prescription access and OTC access by allowing people over eighteen years of age (later lowered to seventeen years of age) to obtain EC over the counter but requiring younger people to obtain a prescription for EC. Moreover, the OTC EC can be obtained only from pharmacies and health care facilities and not from other OTC outlets, such as convenience stores (U.S. Food and Drug Administration, 2009). In the United Kingdom, EC is available over the counter at pharmacies to persons over the age of sixteen (U.K. National Health Service, 2009). Meanwhile, in Indonesia, some health care professionals oppose the use of EC for ethical or religious reasons, and some oppose making EC available without a prescription on the ground that it might encourage teenagers to have “free sex” (Syahlul and Amir, 2005). Writing about Iran, Larijani and Zahedi (2006) have stated that “emergency contraception is also available in family planning clinics” (p. 130). However, it is not clear whether EC is really readily available in Iran, as a practical matter.

The controversy over emergency contraception raises the broader issue of whether it is ethical for health care professionals or health care institutions to refuse to provide EC—or any other health care service—if they object to the particular service on ethical grounds. Some doctors and other health care professionals argue that they have the right to refuse to perform or to participate in performing any procedure that they consider unethical. In some jurisdictions, laws referred to as conscience clauses protect the right of health care professionals to make their own decisions about the procedures they are willing to perform. However, those decisions could have the practical effect of preventing patients from having access to lawful procedures that the patients consider to be ethical.

The issue of who should make this type of ethical decision is not limited to the field of health care services but affects suppliers and consumers in other areas as well. In fact, other settings may provide useful analogies. For example, at the Minneapolis-St. Paul International Airport, many travelers arrive from overseas with bags of duty-free alcohol (“Minnesota’s Muslim Cab Drivers Face Crackdown,” 2007). It is easy to tell what is in the bags. Many of the taxi drivers are Muslims from Somalia who have religious and cultural objections to drinking alcohol or helping others to drink it or carry it. Between 2002 and 2007, there were approximately 4,800 cases in which taxi drivers at this airport refused to accept passengers carrying alcoholic beverages in their cabs. Eventually, the Metropolitan Airports Commission took action and, in May of 2007, began to impose penalties on taxi drivers who refused to take these passengers, including a thirty-day suspension for the first offense and a two-year revocation for a second offense. In this situation no one had forced these individuals to become taxi drivers. They had agreed to serve the public as drivers of taxis and thereby gave up the right to make their own decisions about whom to serve or which ethical standards to apply in serving the public.

Similarly, when individuals join the military, they give up their right to decide on the particular wars in which they will agree to participate or the particular weapons they will agree to use. Assuming there is no draft, they made their own choice to join the military and thereby gave up their rights to make those particular decisions in individual cases.

In the health care setting, what are the rights and responsibilities of health care professionals and institutions in regard to performing procedures that they consider to be unethical? Many health care professionals believe that they should be allowed to opt out of performing any procedure to which they object on ethical grounds. In addition, many people who are not health care professionals accept the proposition that physicians should be allowed to refuse on the basis of their personal ethical views to participate in abortion. Ironically, some of the same people who support a physician’s right to refuse to perform abortions are outraged by reports that pharmacists have refused on the basis of personal ethical views to dispense EC.

Health care professionals often insist that they are not merely “hired guns” who must perform any procedure requested by their patients but are instead entitled to make their own ethical decisions and are ethically responsible for their decisions. As Eike-Henner Kluge (1993) wrote, “the physician’s entry into a professional relationship with a patient does not turn that doctor into a moral eunuch” (p. 289). That is also the position of the Catholic Church. As Pope John Paul II (1995) wrote, “Doctors and nurses are also responsible, when they place at the service of death skills which were acquired for promoting life [R]esponsibility likewise falls…to the extent that they have a say in the matter, on the administrators of the health-care centres where abortions are performed.” Under this view a patient may have a right to obtain a particular procedure, but that does not mean that a particular health care professional or institution has an obligation to perform it. The patient may have to accept being referred elsewhere or even having to find another practitioner by himself or herself.

But what if no other health care professional is available or willing to perform the lawful procedure that is desired or needed by the patient? Under those circumstances the health care professional’s refusal has the practical effect of denying treatment to the patient. This problem is not limited to abortion and EC but also arises in other situations, such as withdrawal of treatment at the end of life. Some health care professionals even insist that they should not be required to make a referral for a procedure that they consider to be objectionable. As Julie Cantor (2009) has written, “Conscientious objection makes sense with conscription, but it is worrisome when professionals who freely choose their field parse care and withhold information that patients need Conscience is a burden that belongs to the individual professional; patients should not have to shoulder it” (p. 1485).

An argument can be made that as an ethical matter health care professionals should not be allowed to refuse to perform lawful services requested by their patients. The health care professionals who do refuse have, like all their colleagues, been trained, at least in part, at public expense. As students or trainees, they occupied seats that could have been filled by other individuals, ones who would meet more of society’s health care needs. Perhaps we should screen applicants for medical school and nursing school by asking which procedures they would not be willing to perform when they graduate, and then we could give priority in admission to those applicants who would provide the broadest range of services to the public. In hiring workers, perhaps hospitals and other health care facilities should give preference to those workers who are willing to perform all lawful procedures.

Prevailing concepts of medical ethics, however, allow health care professionals to refuse to participate in procedures on the ground of their personal beliefs. According to the Declaration on Therapeutic Abortion of the World Medical Association (2006), “If the physician’s convictions do not allow him or her to advise or perform an abortion, he or she may withdraw while ensuring the continuity of medical care by a qualified colleague.” In the United States the federal government and some state governments have adopted these concepts of medical ethics by enacting laws known as conscience clauses. As mentioned earlier these laws protect the right of health care workers to refuse to participate in any procedure to which they object on ethical grounds, and they cannot be fired or otherwise penalized for their refusal. In fact some of these laws go even further by protecting health care workers who refuse to refer patients to other providers who would be willing to perform the requested procedure.

In 20072007, the American College of Obstetricians and Gynecologists (ACOG) Committee on Ethics issued a report titled “The Limits of Conscientious Refusal in Reproductive Medicine.” According to that report, “Physicians and other health care providers have the duty to refer patients in a timely manner to other providers if they do not feel that they can in conscience provide the standard reproductive services that patients request” (p. 1). However, some opponents of abortion argue that a physician should not be required to violate his or her personal beliefs by making a referral for a patient who wants to obtain an abortion.

During the final months of the George W. Bush administration, the U.S. Department of Health and Human Services (HHS) (2008) issued a proposed rule to strengthen the protections for health care workers who object to performing or to assisting in the performance of specific medical procedures. In its proposed rule, HHS criticized the standards of professional organizations, such as ACOG, that might prevent individual health care providers from making their own decisions about performing or assisting in the performance of specific procedures to which they object. HHS said it was “concerned that the development of an environment in the health care field that is intolerant of individual conscience, certain religious beliefs, ethnic and cultural traditions, and moral convictions may discourage individuals from diverse backgrounds from entering health care professions” (p. 50276).

HHS was proposing to adopt a very broad definition of the term assist in the performance. That broad definition might include even workers who clean floors or replace light bulbs in rooms that are used for abortion, sterilization, or other procedures that a worker might consider objectionable. If adopted, such a rule might require hospital supervisors, who arrange staffing for thousands of workers, to keep track of which procedures and tasks each worker is not willing to perform or to assist in performing, such as abortion, sterilization, contraception, or removal of artificial life support from a terminally ill patient. For this practical reason it might not make sense to allow every health care worker to refuse to assist in any lawful procedure to which that worker might object (Cantor, 2009, p. 1484).

Under the new administration of President Obama, the federal government has taken a different approach to the proposed HHS rule. However, that change in government policy does not resolve the underlying issue of whether it is ethical or practical to permit every health care professional to refuse to perform or to assist in performing any health care service to which he or she objects on ethical grounds. This underlying issue also leads to a further question about the ethical practices of the governmental agencies and nongovernmental organizations (NGOs) that provide funding for health services and public health. If health care professionals and facilities may refuse to participate in activities that they consider to be unethical, does that mean that governmental agencies and NGOs may impose conditions on their funding for health services in developing or transitional countries, requiring these countries to conform with the funding organizations’ ethical views about reproductive health issues? That issue of ethics in funding is addressed in the final part of this chapter.

When donors are funding health or social services, is it ethical for these donors to impose conditions based on their own ethical views? Individual taxpayers cannot refuse to pay for activities to which they object. However, governments have the power to fund activities that they consider ethical and to refuse to fund activities that they consider unethical. NGOs and other private donors also have the ability to limit their funding or impose conditions on their funding on the basis of their ethical views. Of course having the practical ability to limit funding or impose conditions on funding does not mean that it is ethical to do so. Specifically, is it ethical for governmental agencies or NGOs to impose conditions on funding in developing and transitional countries when those conditions are based on the funder’s ethical views about reproductive health issues?

For many years the U.S. government imposed limits on the use of funds for activities related to abortion in other countries. Opponents of that U.S. policy have referred to it as the global gag rule, because it prevented NGOs from providing information about abortion or advocating for greater availability of abortion. It is also known as the Mexico City Policy. This policy was not a prohibition against using U.S. funds for abortion-related purposes. That prohibition is contained in a separate U.S. law. The global gag rule, or Mexico City Policy, went beyond the provisions of that law by limiting what foreign NGOs could do with their own funds if they received any USAID funds for family planning. Under that policy, if a foreign NGO received USAID money for family planning, then that NGO could not even use its own non-U.S. funds for abortion services, referrals, or lobbying.

On January 23, 2009, President Obama issued a presidential memorandum rescinding the Mexico City Policy (President, 2009). This memorandum, which explains the history and details of that policy, follows.