Anatomy of the Abortion Debate

   Since Roe v. Wade fifty years ago, the debate over abortion in America has stagnated because opposing sides begin with different premises, talking past each other and ignoring the narrow common ground. It's a battle between an elephant and a whale, noisy but inconclusive because they fight on different grounds.

   I want to define the arguments (almost hermetically sealed off from each other), find common criteria (in justice, not the theology of any one sect), and state a personal resolution.

   First, it's not about killing babies. The word baby means something. It's an air-breathing person who can be held in arms, an income tax deduction. A baby can survive outside its mother if cared for by another adult. Ancient cultures permitted infanticide (recall the story of Oedipus), but Christianity outlawed it, and today nearly everybody condemns the intentional killing of babies. So baby-killing isn't the issue. The entity terminated in an early abortion is a tadpole-shaped blob the size of a grain of rice, an embryo. This is not to deny, of course, that it is a potential fetus, baby, teenager, adult, even octogenarian, but it is none of these things at six weeks. This is simply a call for honest language. To use the loaded term baby for an early abortion is to semantically abort reasonable argument, not to offer one. The term is a poison pill.

   Names applied to both sides are also misleading. One side calls itself pro-life, and--while Catholicism does oppose capital punishment and euthanasia and support health care for the poor--many "pro-lifers" are merely pro-fetus. By implying that they support Life with a capital L, they vilify by implication folks who are more pro-life in on issues like universal health care, biodiversity, climate change, and the death penalty. Even anti-abortion is misleading if it implies that the opposition is pro-abortion. For pro-choice, abortions are like appendectomies, unpleasant responses to ugly situations--things to be avoided. And the term pro-choice is misleading too because it implies that the other side opposes free choice in other areas. The accurate, unbiased terms are clunky ones: anti-abortion-choice and pro-abortion-choice.

   As I said, it's a battle between a whale and an elephant, and the religious side floats massively on "life begins at conception." To make sense of this, we have to redefine the term life because life couldn't begin at conception if the sperm and egg weren't already alive, so obviously life began earlier. What the slogan means is that a new life begins at conception, an independent person who didn't exist earlier. It is a sacramental concept: when a material sperm's chromosomes meet an egg's and cell division begins, a spiritual soul comes into existence. It is as if human copulation makes God point a finger from Heaven and zap eternal life into a microscopic cytoblast--from that instant on a person destined for heaven or hell. This is, I think, a fair portrayal of the religious stance that condemns even the so-called morning-after pill: X is alive; X is human; therefore, X is a human life. Human life is sacred. When chromosomes entangle, the egg becomes the image of God.

   Of course, the above is a hard sell to any but the devout, and many anti-abortion-choice advocates--without necessarily endorsing early-term abortion--emphasize stages of development after the fetus shows up on ultrasound sucking its thumb and looking humanoid even if it isn't ready to breathe air yet. This is a different argument from the sacramental one and may prevail without belief in a spiritual soul zapped into a microscopic zygote. Recognition of a biologically based sense of identity, an ability to feel and suffer, to learn and remember, may be enough, though, of course, even an eighth-month fetus has developed less personhood than a two-year-old dog, and its toes, fingers, and a beating heart are traits shared with tree frogs. Claims to special status in a late-term fetus derive from the fact that, unlike other vertebrates, it is genetically human, but this genetic status--its superiority to them--subsists, not in what it is, but what it may become. Human fetuses are only potentially superior. Still, potential must count for something. Otherwise, a newborn would be inferior to an adult dog and less worthy of legal protection.

   Against the argument that a fetus is an actual person--either from supernatural ensouling or by physical development of human traits--is the argument that, prior to birth, it is only potential person; therefore, the rights of a real persons must take priority. Custom and law assume that life--at least, life as a member of the community--begins not at conception, but at birth. Asked his age, even a foe of abortion counts from his birth, not his conception. Pre-birth humans are seldom given names or funerals and don't qualify for tax exemptions, Social Security numbers, or citizenship. Live children appear on many legal forms, fetuses on nearly none. Under the law of Moses, killing a person in a fight is a crime punishable by death, but causing a miscarriage is a civil offense punishable by a fine (Exodus 21:22-25). In Jewish law, the fetus is explicitly not a person (Hebrew, nefesh) until its head emerges into the air, and it "has no identity of its own, since it is dependent for its life upon the body of the woman" (https://www.myjewishlearning.com/article/the-fetus-in-jewish-law/). Nothing in the New Testament explicitly contradicts this though there was an emerging tradition in ancient Christianity. The second-century Apocalypse of Peter describes women who "conceived out of wedlock and caused abortion" being punished in hell (§26, http://www.earlychristianwritings.com/text/apocalypsepeter-mrjames.html). But all of this, of course, pertained to moral theology, not law. Legally, the fetus was the property of its would-be parents.

   In a kingdom where ecclesiastical courts had police powers (such as most of Europe during the Middle Ages), there was no barrier to enforcing moral theology on unbelievers. But in a pluralistic society such as the United States, it is unjust to do so: to impose the rules of a particular sect on citizens who haven't joined it, no matter how God-given these rules may seem to believers. A believer may ask how my "unjust" should overrule her sectarian doctrine on the subject of, say, pork, bare arms, Sunday, or abortion? Because it derives from an overarching commandment that rules the others--the law of reciprocity sometimes called the Golden Rule, a nonsectarian principle of fair treatment common to most religious, philosophical, and legal traditions (https://uufhnc.org/wp-content/uploads/2017/08/Golden-Rules-Marc-Mullinax-Presentation-8.20.17.pdf). You can call it simply fair play.

   If, as a Christian, I don't wish to be ruled by Sharia law, it is unjust for me to impose Christian law on a Moslem, and the same reciprocity extends to persons without religion. If I understand that my rejection of abortion has a faith basis--that it depends on sectarian beliefs about human personhood and that it conflicts with the beliefs of non-sectarians and other sects--then it is unjust for me to try to outlaw abortion, to enforce my sect's moral theology on other sects. Unless I want the morals of other sects forced on me, I violate the Golden Rule by forcing mine on them. Of course, the presence of a moral teaching in a religion need not make it sectarian. There is consensus between citizens of all religious stripes on many laws, beginning with matters of theft, fraud, and violence. But an issue's prominence in "culture wars" is evidence that it is sectarian--that believers are forcing their beliefs on non-believers. At this point, the just response is to mind one's own business unless actual people are being hurt, and this returns to the definition of person, which is legally void if it is narrowly sectarian, an article of faith.

   If a fetus' personhood is only potential in the nonsectarian consensus, then the rights of unquestionably real persons take priority, the rights of mothers (another poison-pill term) to control the use of their bodies. It's hard to imagine a more basic right, a more invasive violation. And charges of corrupt intent are easily leveled against majority male legislatures that attempt to restrict abortion. Unwanted pregnancy is sharply asymmetrical. The man can deny, walk away, and, at most, pay child support. The woman, absent abortion, faces a nine-month health crisis and, given social pressures, likely decades of life-distorting responsibility and expense. Parenthood can be a blessing, but that sentiment doesn't justify saddling women with a burden men don't share--or justify that the wealthy, who make most laws and have the means to raise children, force poor families into crisis for bad luck in birth control. Or force a woman to mother her rapist's child. 

   Of course, none of this justifies killing an actual person, but, again, that term is the question, and any definition that is faith-based in the absence of nonsectarian consensus is a deeply questionable basis for criminal law in a pluralistic state.

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   So what is my personal position? How would I negotiate between the whale spouting sacramental water and the elephant trumpeting on secular land? I can't buy the idea of a soul supernaturally inserted at conception. That's just not how I understand biology. But if I did, I would personally never participate in abortions and would promote birth control, medical care for poor women, and adoption. I would argue my faith position with anyone who would listen. 

   Developing fetuses gradually develop human traits, and, even if they are only potential persons, I recognize the force of potentiality--otherwise, an adult dog would be superior to a newborn baby. Ongoing processes take on inertia so that stopping them acquires moral gravity, and so, if I felt compelled to end a pregnancy, I would try to do as early as possible. If a pregnant woman--especially by her own choice--has carried a fetus deep into the second trimester and her health isn't in danger, it seems best for her to chill a few more weeks even if it means offering the newborn for adoption. 

   If a fetus is developed to the stage that a healthy caesarean delivery is feasible, I join the anti-abortion side in seeing surgical procedures that kill it as homicide. This, like many moral and legal criteria, may hinge on questions of judgement. I'd offer a criterion like the one that distinguishes passive euthanasia from active euthanasia. Heroic life-saving measures are not obligatory, but if a fetus can breathe and survive with ordinary postnatal care--even if it is unwanted and not yet born--it has a right to live. 

   Roe v. Wade struck a balance. The Court might have affirmed the Biblical position that a fetus is the property of its parents and no business of the courts (Exodus 21:22-25) or restored American practice prior to 1821, when Connecticut was the first state to outlaw abortion. But a legitimate function of government is to protect vulnerable persons (especially children), and Roe v. Wade extends the availability of protection to "viable" fetuses, to potentials capable of being actualized by birth--that is, to fetuses in their third trimester. This seems a fair compromise.