by Kenneth W. Krause.
Kenneth W. Krause is a contributing editor and “Science Watch” columnist for the Skeptical Inquirer. Formerly a contributing editor and books columnist for the Humanist, Kenneth contributes regularly to Skeptic as well. He may be contacted at email@example.com.
For thoughtful persons unburdened by ideological agendas, abortion remains a complex topic implicating tough legal, philosophical, and scientific questions. How should we characterize the fetus, for example—as part of the mother or as a separate human being? Which has superior rights? Is the “right to privacy” constitutionally defensible? If so, was the trimester system outlined in Roe v. Wade the most prudent approach to balancing the woman’s right against the state’s legitimate interests? Is abortion really about something else altogether?
The jurisprudence of abortion is highlighted in Erwin Chemerinsky’s wide-ranging liberal rallying cry, The Conservative Assault On the Constitution (Simon & Schuster 2010). Founding Dean of the law school at the University of California, Irvine, Chemerinsky admits the right of privacy was never expressed in the Constitution’s text. Nor was it compelled by the Fourteenth Amendment’s equal protection clause, for example, as was the landmark ruling in Brown v. Board of Education.
Nonetheless, Roe’s revolutionary 1973 holding was not without precedent, loosely defined. The right of privacy was created—or “revealed,” as some might prefer—eight years earlier in Griswold v. Connecticut where the Supreme Court struck a law prohibiting the use of contraceptives by married couples. Writing for the Court, Justice William Douglas notoriously discovered the now fundamental right among the supposed “penumbras” emanating from the Bill of Rights—a still troublesome expression omitted from Chemerinsky’s account.
Then, in the1972 decision of Eisenstadt v. Baird, the Court extended its more restrictive ruling in Griswold to cover all couples. Here, Chemerinsky accentuates the operative language: “If the right of privacy means anything,” Justice William Brennan pronounced, “it is the right of the individual … to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Such was Roe’s immediate constitutional foundation, however one values it. But the privacy right’s roots run deeper yet. In 1923 and 1925, respectively, the Court toppled laws forbidding the teaching of German (Meyer v. Nebraska) and proscribing parochial school education (Pierce v. Society of Sisters). In 1942, the Court invalidated a law mandating sterilization of certain criminals (Skinner v. Oklahoma) and, in 1967, a statute prohibiting interracial marriage (Loving v. Virginia).
In each case, the Court concocted specific constitutional rights never enumerated in the founding document: to marry, procreate, and raise children. So “it was clear at the time of Roe,” Chemerinsky argues, “that the Constitution had long been interpreted as protecting basic aspects of personal autonomy,” especially those relating to family. Thus, he concludes, it’s actually the textualists and not the supporters of Roe who urge radical changes in constitutional law.
The author completely disregards other obvious questions. Why should the right to procreate imply a right not to do so following a woman’s decision to risk pregnancy? Are there any theoretical limits whatsoever to substantive due process and the right of privacy? Can we the people ever know those limits, except through judicial intervention or an unlikely constitutional amendment?
Even if we accept the right’s authenticity, we still must consider the state’s rationale for intruding on behalf of the fetus. In Roe, Justice Harry Blackmun located a compelling government interest at the point of viability “because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” To fix the initiation of human life at conception, Chemerinsky concurs, would be to inappropriately base the law “not on consensus or science, but on religious views.”
But is viability a distinction without a difference? Inside or outside the womb, after all, a “viable” fetus still requires intensive care. Unfortunately, the author never considers a much simpler and more traditional option—the moment of birth. Thus, cautious readers are left wondering whether scientific advances might soon render viability a confusingly fluid standard on the one hand, or if the glaring arbitrariness of Roe’s trimester system could have been avoided on the other.
So if sustainability and bright-line clarity are crucial, some skeptics might ask, why not choose the “moment” of conception? In The Fetal Position: A Rational Approach to the Abortion Issue (Prometheus 2010), University of Southern Mississippi professor of philosophy and religion, Chris Meyers, challenges the very definability of that moment.
The problem, he contends, is that conception is a “gradual process with many steps extended over several hours.” When the sperm first breaches the egg, for example, the latter has yet to divide a second time and still holds 46 chromosomes. Even after meiosis, it takes about twelve hours for the DNA of both cells to completely fuse, and another eighteen for the zygote to begin dividing.
So at what precise point would the anti-abortionist fix conception? Meyers asks us to imagine a newly invented but hardly inconceivable birth control pill. It doesn’t thwart ovulation or prevent sperm from entering the uterus or egg cell. It only precludes dissolution of the sperm’s head and, thus, the intermingling of parental DNA. Is the pill contraceptive or abortive? The anti-abortionist can either admit he doesn’t know when morally significant life begins, or designate an arbitrary point in developmental time as the moment of conception.
The rarefied details of abnormal development are no less exasperating. When, for instance, does life—and thus ensoulment, for the religionist—commence for the second of two identical twins who doesn’t even exist until several days following fertilization? Do conjoined twins possess separate lives and souls even though many share vital organs, including brains, and couldn’t survive if separated? Does the genetic chimera—one human fused from two fertilized embryos—have one soul or two and, if only one, where did the second soul go?
“Instead of identifying what makes humans morally special with what makes us biologically alive,” Myers argues, “we would do better by identifying it with that which makes us persons: consciousness, the capacity for rational thought, the ability to have human feelings,” and self-awareness. The metaphysical waters begin to clear, in other words, only when one abandons the supernatural association of ensoulment with moral significance.
In any case, let’s assume two human beings with conflicting metaphysical interests. Which attendant liberty interest should prevail—the mother’s right to control her body, or the fetus’s right to life? One might presume life—the right on which all others depend—to reign supreme. But not so fast, warns the author. What if the human seeking life can achieve it only at the expense of the human seeking bodily control?
Meyers begins with Judith Thomson’s legendary violinist hypothetical. You wake up in a hospital, the scenario goes, to find a supremely talented and thus valuable musician hooked up to your kidneys. You never consented to this burdensome union, but, if unplugged, the helpless violinist would perish. So far, the problem is relatively simple—you owe no duty to the musician or her adoring fans. So far, however, the analogy applies only to pregnant women who were raped.
But what if you bear partial responsibility for your predicament? Maybe you attended a party for the ailing violinist, Meyers continues, knowing that someone with your blood type might be drugged and recruited to the musician’s cause. No problem—we would still acknowledge your right to bodily integrity. The same reasoning would apply if you invited a homeless stranger into your house on a very cold day and later decided to evict her. The initial kindness would not imply a continuing duty to shelter and feed.
Sure, but what if the stranger was your child? You have “the right to be selfish when it comes to your own body,” Meyers resolves, “and no one can force you to let another use it.” Likewise, so long as the fetus is not viable, “the pregnant woman has the right to deny the fetus the use of her body, even if that means the fetus dies.”
Convinced? Rights comparisons resemble religious quarrels in their regrettable tendency toward insoluble emotional conflict. There must be a more rational way to resolve the predicament. What if the prevailing developmental science, for example, confirmed that no one capable of actually experiencing harm is injured during an abortion? Perhaps then we could broach more practical considerations, like the extent to which individual, family, and even national and international finances might be affected by compulsory childbirth?
Which carries us to the issue of fetal pain. In Ourselves Unborn: A History of the Fetus in Modern America (Oxford 2011)—easily the most sophisticated and engaging title of the three—Williams College historian Sara Dubow describes how the valuation of fetal life since the late nineteenth century has varied vis-à-vis intensely fought debates over gender roles and the relative authority of science and religion.
The post-Roe era was distinctly marked by the aforementioned disputes over conflicting rights. But beginning in the 1980s, two new claims—that women were psychologically traumatized by and that fetuses experienced terrible pain during abortion procedures—were woven together into a novel rhetorical strategy culminating in a popular, though conspicuously political, patriarchal, and anti-scientific, “compassionate” conservatism.
In their mission statement emphasizing both physical and emotional injury to mothers, Americans United for Life labeled abortion a “violent deception” producing two victims. AUL’s list of legislative objectives featured a mandate that clinics “protect the health and safety of women” and “inform women of the health risks of abortion including the link between abortion and breast cancer.” Similarly, the National Right to Life Committee circulated pamphlets warning women that, in addition to cancer, abortion can trigger “guilt, regret, divorce, promiscuity, child abuse, lesbianism, eating disorders, reckless behavior, substance abuse, and suicide.”
In his 1984 address to the National Religious Broadcasters convention, President Ronald Reagan insisted that “[m]edical science doctors confirm that when the lives of the unborn are snuffed out, they often feel pain, pain that is long and agonizing.” In response, Dr. Bernard Nathanson produced and narrated the Silent Scream, a graphic, twenty-eight minute videotape of an abortion procedure performed on a twelve-week-old fetus, which resurfaced in the 1990s during congressional debates over late-term (“partial-birth”) abortion.
All of which proved emotionally rousing, to say the least. But the sober facts, Dubow reminds us, supported precious little of it. The American College of Obstetricians and Gynecologists knew of “no legitimate scientific information” in support of early pregnancy fetal pain. Certain prerequisites to discomfort, including a mature cerebellum, brain and spinal cord mylenization, and neurotransmitter hormones, were absent. Leading neurologists instructed as well that twelve-week-old fetuses lack the necessary nerve cell circuitry. The National Cancer Institute and the American Psychological association were equally incredulous about the alleged links to breast cancer and post-abortion trauma.
Nevertheless, such propaganda would permeate debates over late-term abortion procedures in Congress and, eventually, the Supreme Court. In 2007, Justice Anthony Kennedy penned the majority opinions in Gonzales v. Planned Parenthood and Gonzales v. Carhart upholding the constitutionality of the Partial Birth Abortion Act of 2003. Therein, he presumed to shield fetuses from the “brutal and inhumane” dilation and extraction procedure and to protect women from the “[s]evere depression and loss of esteem” that follows.
In her dissent, Justice Ruth Bader Ginsberg first noted the glaring scientific reality gap and then scolded Kennedy for perpetuating what she deemed an embarrassingly antiquated ideology. Gonzales, she concluded, “reflects ancient notions about women’s place in the family that have long since been discredited.” But as Dubow suggests, opposition to abortion has always been less about saving lives than preserving a cultural norm at the expense of its emerging and somewhat ill-defined alternative.
Indeed, abortion might be the most inscrutable cultural issue of our time. Its current party politics are especially maddening. Republicans tend to base their stance on particular religious tenets, the implementation of which would be both morally and constitutionally amiss. Democrats, by contrast, seem confused at best—frequently confessing both their support for choice and their heartfelt desire to reduce the number of abortions. But why the latter? What do they suppose is wrong with abortion?