RETHINKING THE ABORTION DEBATE

BY CINCINNATUS

I’ve finally gotten around to writing an opinion piece on the divisive subject of abortion, one that I feel is fair-minded and based in sound, logical argument rather than emotive in nature. The discussion herein is one of the fundamental philosophical issues underlying the debate rather than demographic data, teen pregnancy rates and case law (the merits and demerits of Roe v Wade as sound law are an article unto themselves). The goal of this article is to begin an intelligent dialogue about abortion that is not colored by religious conviction or partisan rancor and to avoid blanket categorizations. I am under no illusions, however, that moderating the tone of the debate will somehow change the fact that the two sides of this issue are irreconcilable, and that middle ground is untenable. This will almost certainly be just the first of many articles on this subject that appear on this blog.

What spurred the penning of this piece was the announcement by Gallup that, for the first time since the poll was conducted, a majority of Americans identify themselves as “Pro-Life.” According to Gallup’s 2009 poll, 51% of Americans call themselves “Pro-Life,” while 42% say they are “Pro-Choice.” Even more significant is the data they present on legality, in which 37% (a plurality) of Americans support abortion only in “a few circumstances,” while 23% say that abortion should be “illegal in all circumstances”. This makes a combined number of 60% of Americans that lean more toward a ban on abortion in most cases than existing abortion rights. This is, needless to say, significant and represents a monumental shift in public opinion in a mere one year period. If these numbers hold steady into next year, we can expect the debate in Washington to begrudgingly recognize and adapt to the new reality, though I do not expect a seismic shift in policy to occur quickly, if at all, given the entrenchment and political investment on this issue.

Consequently, there is no more opportune time to reframe the debate on abortion and lay out foundational arguments than now. First and foremost, as I think both sides of the argument agree, this is a civil liberties issue. Personal experiences, political sympathies and, perhaps most of all, religion may color the pitch and tambour of the debate, but at the end of the day it must be about individual freedom and the liberties protected under our Constitution in order for the reasoned arguments to resonate and to ensure that the participants aren’t speaking past one another. On the one side, the case is made that abortion is about the rights of a woman to make a choice involving her body. On the other side, it is argued that the choice to terminate a pregnancy is an infringement of the basic human rights of the unborn child, and therefore illegitimate.

As the readers of this blog are aware, as a rational conservative I am loathe to come down on the side of banning anything. Nevertheless, I strongly support the latter argument in the abortion debate, which is, in my opinion, a better reflection of maximum civil liberties protection than the former. This may sound counter-intuitive to many, particularly those supporting abortion rights, which is precisely why the reframing of this debate is so essential. The fundamental maxim of civil liberties, according to rational conservatism, is to permit any action that does not infringe upon the basic liberties of another. The conclusion for those of us who oppose abortion then is simple: given that life is among those basic liberties, the practice of abortion does not meet that criteria. Would that it were so simple, however.

The focus of the debate seems to rest upon the question of when life begins. Frankly I believe this is the wrong question to ask, and furthermore it is unlikely to be resolved by science definitively. As such, it adds little to the debate as it stands. Nevertheless, those advocating abortion rights, framing their position within the “when does life begin” construct, present various medical arguments that contend that the embryo/fetus is not technically a human being, among which are:

1. It is incapable of sentient thought
2. It is incapable of surviving outside of the womb
3. It displays similar characteristics to a parasite

I counter that these items are irrelevant. The more appropriate focus for the debate seems to me to be the basic intent behind and the logical consequences of abortion. To the first, the intent behind abortion is not to terminate an embryo/fetus, it is to avoid giving birth to and raising a living child. The reasons for this choice are numerous and varied, ranging from economic and social circumstances to the discovery of genetic defects during the pregnancy. Regardless, when a woman or a couple makes the decision to have an abortion, they are not saying, “I don’t want this embryo.” They are saying, “I don’t want this child.” While the pregnancy may be part of the inconvenience, the real goal of an abortion is to eliminate a human being.

Still, there are those participating in the debate that point back to the medical arguments outlined above. They contend that, despite the intent, the consequence is that an embryo/fetus, which is not a living human being in its current form, is what is destroyed. The argument seems legitimate but it is conveniently only taken halfway to the logical conclusion. Reason dictates that, barring natural incident or accident, the embryo will develop into a fetus, which will in turn be delivered as a live infant (bear in mind: barring miscarriage, accident, stillbirth). Metaphysically and scientifically speaking, that embryo will become a human being; it is a member of our human species. This is beyond question. Any human agency that destroys the embryo or terminates the pregnancy prevents the march of nature from taking its course to inevitably produce a human life. At what stage the pregnancy is terminated is wholly irrelevant. Similarly, at what stage human life begins in the womb also becomes irrelevant.

This raises a few other questions, however. If preventing human life is tantamount to taking human life, wouldn’t contraception go out the window, as the Catholic Church currently teaches? No, it would not. Contraception is a perfectly legitimate and responsible (though not 100% reliable) way to prevent unwanted pregnancy. The difference between preventing pregnancy and preventing birth is that a sperm on its own will not evolve into a human being. An egg on its own will not become a child. Only when the egg is fertilized does the aforementioned and critical “march of nature” or maturation begin. Using the parlance of the traditional debate, this would be similar to the “life begins at conception” argument.

Another counter-argument is that, in the era of modern science, a mere skin cell or unfertilized egg could potentially be used to create a living human being. If this is the case, wouldn’t clipping your fingernails or cutting your hair be equivalent to abortion? Clever, but once again, I point to the fact that, without active human agency, fingernail and hair clippings on their own will not become a human being. While a skin cell contains the building blocks for life, human beings mercifully did not evolve to reproduce by asexual fission, like planarians. The cloning debate is an entirely separate argument, and as it stands Americans rightly and overwhelmingly oppose human cloning.

But let us suppose that the question of when life begins remains the central focus of the debate. Legally speaking, how should this logically be addressed? As previously stated, science has not definitively proven when life begins, though both sides of the debate present evidence supporting their claims. In cases dealing with human life and death the law has an obligation, in lieu of definitive scientific data, to err on the side of caution. If it cannot be proven definitively that a fetus is not alive, then it logically follows that legal protections should be offered pending a final analysis, just in case. Those advocating abortion rights would say that this puts the burden of proof on them rather than those opposing those rights. That is absolutely correct. In instances where there is a potential for the destruction of human life, the burden of proof should be on those who advocate the course of action in question, just as the prosecution must prove the guilt of a defendant beyond a reasonable doubt in a court of law, rather than the other way around. If this sounds unfair, perhaps you should step back from the debate and analyze it in its entirety as we suggest: logically and Constitutionally.

It’s important to ask another fundamental question when debating abortion rights. In the unlikely event that science is able to prove beyond question that life begins at conception, would those advocating for abortion acquiesce, or would they still contend that abortion is a fundamental right? Bear in mind, the “when life begins” argument really matters only to those arguing in favor of abortion rights as it is the cornerstone of their case; for those of us arguing against, the question of exactly when a human being becomes a human being does not anchor our argument. If the inverse should be true, and science should prove indisputably that an embryo is not a living human being, it does not alter the “intent and consequences” logic of our case.

It’s easy to flatly state that abortion should be illegal. What isn’t necessarily as easy, however, are the consequences of making such a statement reality. What do unready or unwilling mothers do if they are unable to terminate their pregnancy? Do they have an abortion performed illegally? If so, what legal consequences would they face? For those that carry their child to term, should the state offer assistance with medical care? If the child is born to a mother financially incapable of supporting it, what options does she have? Put the child up for adoption? Should the state provide targeted support if they decide to raise the child themselves? These are all legitimate issues for which those arguing against abortion rights must offer solutions if we are to be responsible and intellectually honest citizens.

To the first, what are the consequences of eliminating the option of abortion for unready and unwilling mothers? To be sure, there will be women who choose to have an abortion performed illegally. Those arguing for abortion rights often point to this as a chief reason why it should remain legal, as a ban creates more criminals and does not eliminate abortions altogether. While true, it is not a legitimate argument. We do not legalize theft because it would reduce the prison population or because we cannot prevent all robberies. Nevertheless, there are very real societal difficulties when making something that has been a “fundamental right” for thirty-six years illegal. What legal consequences should a woman who has an abortion performed illegally face?

This has typically been one of the biggest hang-ups for those arguing against abortion. Some take the extreme view that abortion should be treated as murder by our criminal justice system, resulting in 20 years to life in prison, while others suggest only minimal or even no significant punishment. The question must be answered fairly and consistently. While abortion is equivalent to taking a human life, the circumstances surrounding it are unique, particularly given that it is currently a Constitutionally-protected right. Personally, I wouldn’t find it productive or fair to throw what is often a frightened 17-20 year-old girl in prison for the better part of her life as punishment for her choice to have an abortion. In the United States, our legal system already recognizes the varying degrees of homicide, ranging from involuntary to voluntary to second and first degree murder. Additionally, there is a subcategory of voluntary manslaughter called infanticide that deals specifically with mothers who kill their infant children as a result of an unbalanced mental state brought on by post-partum depression. I would see no problem with creating a similarly distinct subcategory of voluntary manslaughter for abortion that carries a lesser sentence. For first-time offenders, I think a minimum sentence of 250 hours (roughly one month) of community service working with underprivileged children, adoption organizations, single mother support groups, etc would be reasonable, in addition to one year of mandatory counseling dealing with responsible sexual education, pre-natal development, and motherhood. For repeat or serial offenders, punishment would necessarily be harsher, involving jail time determined by the number of abortions and manner or reason for which they were conducted. But those actually conducting the abortion, that is to say the doctors, would be subject to serious penalties. Jail time ranging from 2-15 years depending upon the number of abortions performed and health consequences for the mother would be wholly appropriate.

We would, of course, not be hunting down and pursuing those who have had abortions or performed them in the past and those prior occurrences would not count against them on their record should they be brought up on charges for abortion after it became illegal. Furthermore, while the suggested penalties outlined above seem reasonable and fair to me, ultimately of course it would be left up to the states and the legal system to make a final determination with the input of society as a whole. Mine would be just one voice among hundreds of millions of Americans, some arguing for sterner penalties and others for minimal or none at all.

Mitigation of the factors that lead to a woman’s decision to have an abortion must also become part of the solution. Common factors that influence the decision are the inability to support the child financially, or inability to carry or raise a child due to life circumstances (school, career, unmarried, etc). As a society, if we agree to bar a woman from having an abortion, we are obligated to provide her with as much support as possible to carry the child to term and, if she so chooses, raise the child. The government should have a role to play in making assistance with medical expenses and care available for women in these circumstances should they need it, though the role should be an indirect one. Offerring generous tax incentives and federal funding for charitable and non-profit organizations that provide pre-natal care and financial aid, adoption assistance, single mother support and childcare would be one of many ways the state can give indirect support. If a mother decides to raise the child herself, despite difficult social or financial circumstances, targeted government support in the form of welfare services already exist, as does financial aid/tax relief for day care and education. As far as this conservative is concerned, providing support to mothers in need and the children they carry and raise is perhaps one of the most suitable uses of tax money conceivable.

As stated earlier, I am typically the last person to advocate a ban of any sort, and favor freedom of choice and government non-interference in just about every aspect of life. I do not consider myself to be a social conservative in the traditional sense of the word and do feel a significant level of discomfort advocating for banning and punishing a practice that is currently perfectly legal. Nevertheless, like Nat Hentoff and other secular opponents of abortion, I feel that there are compelling and legitimate reasons why the practice should be ended that do not rest solely on religious or emotive principles, but on logic, liberty and basic ethics. Furthermore, I have satisfied myself that the core arguments in favor of abortion are insufficient to warrant Constitutional protection as a “fundamental right,” despite my own personal political inclinations that often border on libertarian. I do recognize the difficulties of transforming what has been a Constitutional right into a crime, though I would state that the difficulty could have been avoided with more thoughtful and responsible judicial exercise in 1973, and am willing to concede that such a ban obliges government assistance for those who otherwise may have sought abortion. The purpose behind this article is to initiate thoughtful, reasoned debate and offer a more secular case against abortion. I have intentionally avoided the usage of loaded terms such as “pro-life” or “pro-choice” (except when referencing the language of the recent Gallup poll) due to their ties to the existing, politically charged debate, and have opted to instead make this discussion one between rational individuals rather than disparate interest groups.