How to decide what you think about the law and abortion

It is difficult to think of a more contentious debate in the U.S. than that surrounding the law and abortion.  This blog is an attempt to step through much of the contours of the debate, pointing out where decision points and clarifications should be made to reach a consistent position.  Though I don't think it is overly relevant to what I'm trying to do here, in the spirit of full disclosure I will say that I favor a sliding scale of difficulty in acquiring an abortion ... so pretty close to current law.

This is extremely long.  I would apologize for that, but this is not a simple topic, and anyone that tries to make it so is not considering many important issues.  (And this discussion is not even close to comprehensive -- it just touches on many important areas.)

Items to consider:

1) The definiton of "person" and its importance
2) The existence of a right to self autonomy, and its possible applicability
3) The existence of life versus the quality of life
4) The importance of the choice to become pregnant
5) The importance of the health of the child
6) The importance of the health of the mother
7) The role of government
8) The role of gender
9) The importance of results

1) The definiton of "person" and its importance

How should the term "person" be defined?  What rights are bound up in that definition?  Is there anything else to ask, once that question is answered?  (It turns out, yes.)  So, for many people, this is the only question that they think should be asked.  Many "right to life" people say that human life begins at conception, and the argument is that, from the moment the sperm and egg unite, a human being with full ethical rights exists.  "Life begins at conception" is the hallmark of this group. There are some obvious problems with that stark a view, to which we will turn in a moment.

At the other end of the spectrum is a theoretical person that believes that the sack of well-formed cells in the uterus is not a life until a fully formed baby has completely exited the birth canal.  I say "theoretical" because I have personally never met someone that truly believed this way.  Most "pro choice" people believe that a human being exists once it could survive unaided (meaning it could breathe and its body could function without external assistance, not that it could hunt its own meals).  For the sake of this argument, I will stick to the idea of viability, not exiting the birth canal, in order to avoid a straw man effect.  A subset of this group often believes that a fertilized egg begins the process of someone becoming human, and that entity continues the "becoming" process until viability -- in other words, there is not a simple on and off switch, but a continuum, to whether one is human.

If you believe that life begins at conception, all the rights that you or I have should adhere to the fetus immediately.  If you think personhood waits until viability, then rights may adhere then.  If you think there is a sliding scale, you may think that the law should slowly give more rights as the fetus becomes more of a person.  This "more protection as you go along" approach is the predominant legal landscape, existing in many state's laws well before Roe v. Wade created the federal mandate (and even more so after Planned Parenthood v. Casey and subsequent high court decisions).  (Another, older approach was to believe personhood began at "quickening," loosely defined as when the fetus began to move in the womb.  This has important historical ramifications, but has been generally abandoned today.)

Problems with each viewpoint:

"Life begins at conception."  Okay, when is the exact point of conception?  Is it when the egg is first fertilized?  If so, what do we make of identical twins?  It is only after an egg is fertilized that the cells split apart to form two (or more) separate beings.  Was there one soul before this, that also split?  Or ... what? For this special occurrence, did life not begin?  Or, if the fertilized egg does not attach to the wall of the uterus, but instead exits as during a normal menstrual cycle, did a baby just die?  Should we do something about these deaths? Should we stop the practice of invitro fertilization?

At the other end, how do we know when a baby is "viable" now?  Why does a baby have to hit this high target, when someone who has already existed in the world can be put on life support and still be called "human"?  Should the definition of personhood depend on the level of technology available at the time?

For those in the middle ... how do you draw all the small distinctions in rights and personhood?  This just seems to compound the definition problem by creating many more points to define.

Of course, many of those (though not all) that believe life begins at conception hold their beliefs because of a perceived religious mandate. Relying on the Bible for this is problematic, however.  Let's go through some of the passages:

a) Exodus 21:12, 21:22: "Whoever strikes a person mortally shall be put to death. ... When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman's husband demands, paying as much as the judges determine ...."  The Bible here gives no penalty if the woman's husband agreed that it should happen (as the husband would then demand nothing), and even if a fine were required, a fine is certainly different in kind from the death penalty.  This heavily implies a difference.

b) Genesis 25:22: "the children struggled together within her."  These were Esau and Jacob, and this was showing a lifelong trend.  However, this does not imply anything about conception -- at most, it implies that, after "quickening," they struggled.  Or maybe even shortly before birth (and thus possibly after viability).  So there is little help here.

c) Luke 1:41: "the child leaper in her womb." The child here was John the Baptist, who leaped when Elizabeth met Mary.  This certainly implies some sort of (supernatural, or at least extra sensory) perception, which implies some sort of sentience.  Of course, again, there is no indication that this happened anywhere close to the time of conception.  It could very well have been after viability, so this does not answer the question.

d) Psalm 139:13-16: "you knit me together in my mother's womb. ... [Y]our eyes saw my unformed body. All the days ordained for me were written in your book before one of them came to be."  "You" here is God.  But ... um ... so what?  This certainly seems to be metaphorical language (God is not wielding a needle and thread in each woman's womb, I would venture, in most people's worldviews).  If you are talking about God placing a soul into the body, there is -- yet again -- no indication that this happened at conception.  And could it only be referring to those that actually made it out of the womb?  After all, an aspect of God is omniscience, so ... he knows which baby's will survive.  Unless we think that God's book had some errors, in fact, the implication must be that only those children that actually had "days" are in there....

e) Job 31:15: "Did not he who made me in the womb make them?"  Same refrain.  At what developmental stage did this happen? 

f) Isaiah 46:3-4: "... you whom I have upheld since you were conceived, and have carried since your birth."  Well, at least there is a notion of conception here (in the translations I have seen, at any rate), but it still doesn't answer the question.  The ones that survived were certainly "upheld," but what of the ones that died?  Was God attempting to uphold them, but those that aborted fetuses confounded that upholding?  What about miscarriages?  The more straightforward reading is that he is talking to an audience that actually survived, and, because he knew that from before the beginning of time, all events were scheduled and controlled to bring that about.

g) Jeremiah 1:4-5: "Before I formed you in the womb I knew you, before you were born I set you apart."  This is the most obvious backing to my earlier interpretation about times.  BEFORE God formed the person, He knew the person.  Yes -- this is part of God's ominiscience.  It implies absolutely nothing about the beginning of personhood (unless now we want to push back to before conception, as the knowledge here implies), but it does show that the god knows before, during, and after birth how the life of someone will proceed.  This should be unsurprising.

For those that believe in arguments from silence (rather weak, but sometimes at least indicative), abortion is not one of those new things, like airplanes or telephones or genetics, about which the people of 2000 years ago knew nothing, so had no reason to mention.  Abortions happened regularly, frequently chemically using abortifacients such as pennyroyal and silphium.  Yet the Bible is silent on the morality of this practice.  If you doubt that, read through the quotes above again.  Which one even implies that this practice is bad?

Anyway, my goal in this blog is not to berate those that believe that the Bible says life begins at conception.  Suffice it to say that I think that belief is not at all self-evident from reading the text.  (For Catholics, I believe there was a papal decree, so ... not much to argue there.)

An interesting semantic argument, of a slightly different sort, is often given much more weight than it appears to deserve.  However, it is worth mentioning here.  The argument is usually phrased something like this:  "Well, if it's not a human, what is it?"  A slightly more sophisticated argument will say, "It has 23 pairs of chromosomes mapped to the human genome."  Of course, the discussion of human rights cannot simply turn on semantics like this.  A human corpse has human DNA, but it does not have human rights.  The hair I leave on the floor of my barbershop has human DNA, but no human rights.  Human DNA simply does not equal rights, so this rhetorical jab is vacuous.

But, at this point, we have determined which camp you fall into as to when you believe a person should be given all or some of the aspects of being a human.  There are many more interesting questions that need to be asked before answering the abortion question, however.

2) The existence of a right to self autonomy, and its possible applicability
The right to govern oneself is a bedrock principle of our nation, and it is mentioned several places in the founding documents.  The Declaration of Independence locates the people as the primary repository of rightful power, and the Constitution enumerates powers so that the government is limited in what it can do.  Privacy and self control are important in a large swath of the amendments, and many of the fundamental rights not enumerated (but implied to exist by Amendment 9) have included autonomous choices, such as the right to refuse health care, the right to choose where you children are educated, the right to refuse grandparent visitation, the right to use contraception, etc.

Perhaps the most obvious and extreme example of this right is the right to live.  At a minimum, without due process, the government cannot remove my right to life.  (Certainly that's the base of the pro-life position.)  Except for certain exceptional circumstances (such as a soldier at war), the government cannot require you to die.  For instance, if you are the only viable match for a heart donor for a child, the government cannot say that you die and the child gets the heart.  In fact, even if it is a redundant organ, like a kidney, the government cannot require you to risk your life.  The same holds true, most would say, with when a woman is at risk of death if she carries a child to term.  Almost everyone I have spoken with would agree that, if the choice to be made is whether the woman lives or dies, an abortion is justified.  You cannot force her to make the choice, though -- it is her right to self-determine that prevails.  Though there are some that would disagree here, usually -- in my experience -- on a notion of innocent life, I believe that doing so consistently is difficult.

The obvious example here is "Siamese Twins" that are conjoined in such a way that, to save the life of one, an operation affecting the other twin would be required.  The law does not require the other twin to undergo this operation; you do not have to risk your life to save the life of another, even the closest relative possible (one sharing your same body and, likely, DNA). 

The harder questions are, what if the risk of death is relatively slight -- say, 3% -- or, what if the risk is not one of likely death, but of severe physical harm?  These can still be covered under notions of personal autonomy (and, alternatively, self defense), but they are certainly harder questions.

An even more difficult question is, can a woman that wants to terminate a pregnancy because she fears for her mental health be forced to continue the pregnancy?

The final question, and now more difficult on the pro-choice side, is whether a simple desire not to have a child should be sufficient.  This is the true notion of a "choice" that is normally raised by the pro-life side -- after-the-fact contraception, period.

Of course, there will ALWAYS be risks to the mother, both physical and mental.  Carrying a child to term changes the layout of a woman's body, stressing and stretching it.  Different hormones are produced, in different quantities, and the immune system has to handle an (at least eventual) second inhabitant.  Activities must be curtailed, work must be interrupted, and cultural expectations and norms must be addressed.  Pregnancy, as almost any woman who has born a child will tell you, is never easy, even without morning sickness, gestational diabetes, and post-partum depression.

But the pro-life side will immediately respond that the equation is NOT one sided.  Many, many women who have had abortions regret the decision, some immediately.  An abortion, even one not of the "back alley" sort, is not without risk.

So, at this point, we have a balancing of one life against the balancing of a separate/becoming/non-life, and into the mix we've thrown the idea of risk.  This says that it is not as simple as "life versus life," going either direction.

3) The existence of life versus the quality of life

This is not really a separate path, but it is instead a moment to consider whether you believe life, in every manifestation, is better than the alternative.  To put it another way, should the quality of anybody's life ever be considered when making determinations on continuing life?  Most of us would agree that these determinations are important in other areas (continuation of life support, and the applicability of living wills, springs to mind immediately).  Like at the end of point two, here we are muddying the waters a bit more.  Instead of assessing risk to lives, though, now we are pondering whether quality of life should be part of the algorithm to determine value of life.

As the Schiavo case from several years ago proved, most people think quality of life should matter at some point.  I personally have never met anyone that would want to stay on life support for as long as Terri Schiavo did, even knowing -- somehow -- that you would miraculously wake and be somewhat functional.  And (*gasp*) ... most people even include financial considerations here.  Who wants to be a burden on her family ... or the community ... for that long?  If you ask people about their children/parents/other loved ones, you might get different answers, but as soon as every person I have spoken with has been asked, "Would YOU want to be kept around like that?," the answer is overwhelmingly NO.

So, should we apply this same type of thought process here?  Should the fact that the child is unwanted be a consideration?  If the child is placed up for adoption, will it get loving parents?  (Don't answer that "yes" too quickly -- look at the adoption roles in your community.)  Either way, what will the quality of life be?  If you believe that any life is better than no life, then maybe you don't care.  But, maybe here the nob moves a little bit in one direction or another.  (One way to check this is to consider if your feelings change depending on knowing how the child's life actually WILL turn out.  If you are pro-choice, you KNOW there will be a loving family.  Pro-life, you KNOW there will be a meth-head, gun-dealing rapist; think of the movie Precious.  Are you swayed?)

And should the impact on the quality of life of the mother be inspected?  Anyone that has children knows that nothing changes your life more.  New job?  Hah.  New spouse?  Easy-peasy.  New child?  Woah!  Life is now dramatically different.  Should this matter?

4) The importance of the choice to become pregnant
By now, certainly some people are thinking about the choice to become pregnant.  Pro-life people often like to say that they are pro-choice, but that the important choice involved a zipper, and it was made some time ago.  Let's walk down that road a bit.

The argument is that a woman who chooses to engage in sex is assuming the risk of getting pregnant.  (Many aspects of that risk can never be shared by the man that was also involved.  At least our society has reached a point where the legal system at least expects some level of financial support, however.)  If two consensual adults, with full capacity, choose to have unprotected sex, this argument has the most weight.  Now, of course, the assumption here is that the woman did not choose to conceive.  (The same sorts of argumentation techniques would apply there, but let's skip it.)  During the ovulatory cycle, there is about a 1/5 chance of becoming pregnant; that cycle is 12 to 24 hours long, each cycle.  So, if you don't understand your cycle (or how this works), and assume randomness, there is around 1/5 * 1/28 = ~0.7% chance of becoming pregnant when you have unprotected sex.  This is obviously simplistic, but you get where this is going.  Is less than a 1% chance of an event occurring negligent?  Normally you compare against that risk the difficulty in avoiding it and the desirability of the event.  It is likely easy to avoid (unless you have some legal or moral reason not to do so), but it is overwhelmingly a desirable event.  I mean, the word "desire" itself conjures up notions of this -- very little could be said to be more desirable.

Generally, in negligence cases, the question is whether a reasonable person would engage in this behavior, given these risks.  Different people ostensibly come down on different sides here, but certainly many, many people have taken the risk at one time or another.  The question of negligence is not a given, in other words.  And the "harm" bestowed is quite great:  Physical, mental, and financial duress for the rest of your life.  Most of us make that sacrifice gladly, but surely we all recognize it IS a huge sacrifice.

And what if she did not choose?  What if she used contraception, but it failed (broke, out of date, whatever)?  What if she was drunk, or high?  What if she was raped?  Should any of these make a difference?  Obviously if you say "yes," you are now willing to discuss a choice, and that may undercut the pro-life position.

5) The importance of the health of the child
Does the health of the child matter?  If the child is likely to die at an early age, does that matter?  What if it will NOT die, but live with a large disabilty, such as Down Syndrome?  The impact to quality of life in that circumstance is monumental.  Should we care?

6) The importance of the health of the mother

We talked about health a bit above, but let's focus more on the mental capacity, and mental stability, of the putative mother.  Does mental health of the mother matter?  This is, in some ways, another way to question the imporance of the choice.  If she was raped, should she have to bear the reminder of that rape, then the raise the fruit of the rape, forever having a linkage to the father of the child (who, by the way, may have parental rights)?  To take it a bit further, what if there was incest?  Of a 15 year old?  13 year old?  11?  What if the woman has an IQ of 55, and really does not understand what could happen, much less how to raise a child?

On the other side of the spectrum, what if the woman was mentally unstable?  Severely depressed, made worse by the hormonal imbalances?  What if she is schizophrenic?  Should such a person be required to carry the child to term?  What if she says she will kill the baby as soon as she has a chance?  (Surely you realize that such women exist -- they do.)

Again, these are simply illustrative, and they attempt to show that quality and risk could be part of an algorithm.

7) The role of government

On a more theoretical note, what do you think should be the proper role of the government here?  Let's start with the federal government.  Is this part of an enumerated power?  It seems highly unlikely, except perhaps when crossing state lines for marketing or services, or in governing federal territories, cities, or bases.  Maybe you think the power of the purse should be used here, or not, going either direction.  As for the courts, are there any protected rights to consider?  The life of the mother is certainly one recognized constitutionally, but do other rights make it, such as the life of the child, the right to privacy, etc.?  So, perhaps you believe in one side or the other on the issue, but you think it is inappropriate for the federal government to enforce this decision.

Okay, then, what is the proper role of the state government in regulating abortion?  Unless otherwise limited by federal law, states have the power to do pretty much anything.  Here, with few exceptions, that means that states are restrained only by the courts (recognizing or finding or creating rights in the Constitution or other proper laws).  Simply because states have the power to do something does not necessarily mean that we think it is proper for the state to do something.  Is it the role of the government to interfere between a doctor and her patient?  Alternatively, can the government sit by while an innocent citizen is put to death?

The role of government is actually something that most people do not consider at first blush, but that many sophisticated speakers push ... and I suspect that many times those arguments are ex post facto rationalizations that coincide with already held positions.  However, the role of government is extremely important, and these SHOULD be considered.  Do you believe in limited government?  Do you believe in government intervention?  On this question, interestingly, many people find themselves uncomfortably in a different camp than they would normally occupy.

8) The role of gender

With all of the difficulties and ethical dilemmas involved here, should anyone but females make this call?  They have historically born the vast majority of difficulties associated with raising children, and virtually all of the difficulties with bearing them.  Should that biological consideration be important?

9) The importance of results

Finally, what are your goals with desiring to legislate abortion?  Should we care about outcomes, or simply about principles?  For instance, if experience showed that eliminating access to legal abortions in one state would decrease the number of abortions by 15% (those that could not get across state lines but did not want a "back alley" abortion, most likely), but that the number of serious complications related to illegal abortions went up, would that change your mind?  Or if making it illegal decreased the number of abortions, but there were fewer serious complications overall, and that studies showed the women who changed their minds were happy about their decision to continue the day before giving birth?

If you believe that it is appropriate to use government to impose principles regardless of the consequences (which seems unlikely, stated that way, doesn't it :-)? ), then you need not worry about this step.  You know what is right, and you think the government should be used to impose that on all pregnant women.  Or, alternatively, you know what is right, and you think the government should prevent anyone from interfering with the choices of pregnant women.  This, to you, is true even if it means more abortions, more dead and depressed women, more unwanted children, more crime, more ... anything.

On the other hand, if you think that results actually DO matter, you have to start creating priorities.  So, here is a possible approach:

• Look at the various legal approaches to abortion, and see what effect the laws have. 
• Knowing what you consider to be the proper role of government, decide at what level you think some sort of intervention might be appropriate.
• Consider risks and the quality of life, as well as your beliefs about when personhood and its attendant rights should accrue.

After carefully considering all of this, maybe also ponder if there should be some gender humility, if you are male.

Then, come to a decision.

Once you have taken this long road, maybe a secondary benefit will be that you may understand the passion and vehemence of someone that chooses differently than you do.  Maybe you can even find common ground and work toward better solutions, such as better adoption alternatives, better contraception, etc.

I look forward to hearing your thoughts.

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