Abortion

Abortion is an issue that evokes, on all sides, very strong feelings and judgments
and very heated recriminations. The most radical formulation of the anti-abortion
or "pro-life" side of the debate views abortion as the murder of unborn children,
and so as the equivalent of out and out infanticide, making the legal use of
abortion since Roe v. Wade, at a rate of around 1.5 million a year in the United
States, into a holocaust of the innocent fully comparable to the Nazi genocide
against the Jews. Radical "pro-life" activists who blockade abortion clinics (or
who even commit terrorist acts of vandalism, arson, and murder) see what they
do as what "good Germans" didn't do in the face of Hitler's atrocities, or what
John Brown did do in his attempt at Harper's Ferry to free the slaves through
mass rebellion. While John Brown was regarded as a dangerous and treasonous
fanatic during his lifetime, Union armies later marched through the South singing
the song "John Brown's Body," whose tune Julia Ward Howe borrowed for the
great "Battle Hymn of the Republic." Anti-abortionists thus feel that they would be
similarly vindicated and honored by history [0].

On the other hand, the most radical formulation of the pro-abortion or "pro-
choice" side views opposition to abortion as opposition to the freedom of women,
as hatred of women, and as part of a historical effort to "subjugate" women as
nothing more than baby-making machines or, failing that, to see that they die in
botched abortions as part of, indeed, something comparable to the Nazi
genocide of the Jews. They sometimes interpret the anti-abortion cause as so
heinous that even non-violent anti-abortion protests are regarded as "hate
crimes" which should be suppressed using the most draconian federal anti-
racketeering and anti-terrorist laws [1]. In general, "pro-choice" activists believe
that the availability of abortion is absolutely necessary for the general alleviation
of poverty and for the possibility of better and fulfilling lives for both women and
children.

My concern in this essay is to examine the extent to which arguments used by

both sides of this debate are poor to untenable. The common acceptance of bad
reasoning as self-evidently true always serves to demonize the opposition and to
further radicalize and irrationalize the whole debate, to the benefit of every kind
of extremist. While I am personally in the "pro-choice" camp, I am embarrassed
to find that many common pro-choice arguments are based on appallingly bad
reasoning. And if I seem particularly harsh about pro-choice arguments, it is
obviously because I am concerned that the cause I favor be honored with the
more sensible and cogent arguments. I also do not believe that the heated
rhetoric that accompanies and is exacerbated by the bad arguments is any help
in reaching a political modus vivendi on the issue.
One of the most often repeated of such arguments is that abortion should be
legal just because it would continue being practiced even if it were illegal again.
The trouble with such reasoning is that it could just as easily give us an argument
for legalizing theft or murder or rape. These things have been illegal for a long
time, but they just continue happening anyway. So we may as well legalize them,
since they are going to just continue happening anyway. Of course, no one is
going to accept such reasoning in those matters. The fact that something is
happening or will continue to happen cannot be an argument for whether it is
acceptable or moral or just.

A similarly bad argument says that abortion should be legal because women will
get maimed or killed getting illegal abortions. That could just as easily be an
argument for legalizing armed robbery or any other crime, since armed robbers
and other criminals can get shot or killed in doing what they do. If something is
genuinely wrong, then the fact that someone engaging in that wrong action might
be hurt or killed is irrelevant. And if the argument is that abortion is too trivial a
thing for women to die because of, that begs the question, since it is precisely the
issue whether abortion is murder or not; and if it is, then it is not any kind of trivial
matter.

A pro-choice bumper-sticker occasionally seen says, "If you can't trust me with a
choice, how can you trust me with a child?" However, although everyone is
trusted with a "choice" whether or not to commit murder, this does not mean that
they can choose whether murder is right or wrong. Just because mothers (and
fathers) have a right to raise their children, they do not have a right to decide that
murder, if it is murder, is OK. If abortion is murder, then the moral and legal issue
is the same whether a mother and a father are thinking about murdering each
other rather than aborting a fetus. Similarly, conservative firebrand and
Republican sometime Presidential candidate Alan Keyes says:

...if your daughter comes and says "Dad, I want to kill grandma for the
inheritance," you wouldn't say "well, this is not a good idea, but it's your choice."

People are trusted with freedom because they are generally trusted not to do
wrong as autonomous moral agents. When they do wrongs, like murder, robbery,
rape, etc., we do not "trust" them by saying that an action is all right just because
it was all right with them.

The basis of the "pro-life" position, in turn, is that human life starts with
conception. The view is that there is no natural point of division in the life of a
person between the fertilization of the egg and the point of the "viability" of a
fetus to survive outside the womb, let alone birth. Furthermore, an embryo
develops quickly, and by the time artificial abortions are likely to be performed,
heart, brain, circulation, and other recognizable organs and organic functions
already exist.
While simple and coherent, the principal difficulty with this "starts with
conception" view, however, is that the views of a very large number of "pro-life"
people are inconsistent with it, if indeed they believe that abortion should be
allowed in cases of rape and incest. If the "starts with conception" view of human
life is to be applied consistently, a child of rape or incest is completely innocent of
those acts and does not deserve to be killed because of the crime of its father [2].

Since the number of "pro-life" advocates who would be willing to force victims of
incest or rape to endure a pregnancy as the result of those crimes is small
enough that it wouldn't matter politically all by itself, our attention should turn to
"pro-life" advocates who would allow abortions in case of rape or incest. They
make the difference politically, but since their views are inconsistent with the
"starts from conception" view, we must ask if there is any other justification for an
anti-abortion stance that would make for a coherent perspective for such people.
That will leave the "starts from conception" view of human life unanswered (for
the moment), but I think that the revulsion most people would feel at making a
woman bear the child of a rapist can be taken as a sufficient clue that most pro-
life sentiment actually does not come from the "starts from conception"
formulation.

A more reasonable basis for "pro-life" sentiment centers on the issue of

responsibility. "Pro-life" people actually deny that they represent an "anti-choice"
view of abortion or that they wish to prevent a woman from having control over
her body. Their view is that the choice and the control come at the moment of
sex, not at the moment of conception. For instance, the conservative Jewish
columnist Mona Charen says in a January 1997 column:

Sure a woman has the right to choose whether or not to become pregnant. She
makes that choice before engaging in sex. To make that 'choice' after a
pregnancy is underway, merely as a matter of birth control, is an immoral act.

Michelman [Kate Michelman of the National Abortion Rights Action League] and
her allies feel an sense of entitlement to risk-free sex.

The "pro-life" argument then is that the act of choosing to have sex is the act of
choosing to accept responsibility for the possible consequences, i.e. conception.
To them it is no longer a question of a woman's control over her own body when
it involves killing someone else, even if that is "merely" an embryo or fetus. If this
sentiment is found together with a belief that abortion is acceptable in cases of
rape and incest, then the view can only be consistent if the "unborn child" does
not have an absolute "right to life." Abortion would be acceptable if the mother
did not have a choice in the conception. But the "unborn child" has enough of a
"right to life" that a woman must reckon on her responsibility for it in her own free
actions.
The responsibility issue turns up in related debates about welfare. In the early
'90's, the State of New Jersey decided not to increase welfare payments if
women had additional children while already on welfare. One side of the debate
regarded this as an attack on the children, with the assumption that women have
the right to have children even when they know that they can support them only
with public money or that, whether the women have that right or not, the children
must be given public support regardless, just because they having nothing to do
with their origin and are helpless. The other side of the debate held the children
to be their parents' responsibility, regardless of their condition, not the
public's, and refused to concede that the public has an open-ended
obligation to unquestioningly provide the funds that promote the
irresponsibility of parents by defusing the consequences of their
imprudent behavior. As it happened, the outcome of this policy in New
Jersey produced curious alliances, for one effect of it was to increase
the number of abortions as welfare mothers limited births, not through
abstinence or birth control, but by abortion. Consequently, some who
were opposed to abortion turned against the welfare policy because
they saw it as promoting abortions.

What the "pro-lifers" often wanted, however, was the same welfare
policy and a ban on abortions. Opponents then liked to accuse them of
hypocrisy in that respect, as though banning abortion while limiting
welfare payments was inconsistent, but of course it was not: they
wanted to ban abortion because they believed it was murder, but they
might simultaneously want to limit welfare payments in order to make
parents accountable for their sexual behavior -- both abstinence and multiple
forms of birth control would still be available to avoid the imprudent responsibility
of additional children.

A troubling assumption that often seems to be made on the pro-welfare, "pro-

choice" side in such debates is that sexuality is uncontrollable and that people
cannot be held accountable for the consequences of their sexual behavior. The
public then can only try and limit the damage by supporting the children after the
fact. This is a most extraordinary assumption, whose most troubling aspect is
that in application it is certain to be a self-fulfilling prophecy. It is also a
convenient assumption for a very contrary kind of conclusion: stripping away
individual liberties, after the manner of Communitarians, and perhaps even
sterilizing welfare mothers. After all, if imprudent behavior, like riding without a
motorcycle helmet or seat belt, can be forbidden because of the public liability
incurred, then certainly the public would be justified in reducing its liability by
rendering irresponsible mothers unable to burden the public any further.

Even as the issue of responsibility may separate unconditional abortion foes from
conditional abortion foes in the "pro-life" camp, it also marks a separation in the
"pro-choice" camp: many people who believe that abortion should be available
for many reasons besides rape and incest nevertheless do not like the idea of
 "abortion on demand" being used merely as a substitute for birth control.
They also do not believe that minors are competent either to appreciate
the consequences of having sex or to appreciate the consequences of
deciding whether or not to have an abortion. This division produces
some of the paradoxes found in polling data about American public
opinion. A majority of Americans are "pro-choice" in the sense of
believing that abortion should be legal far beyond cases of rape and
incest; but a majority also regards abortion as in some sense "wrong"
and endorses various obstacles to abortion, including waiting periods,
counseling, parental consent, etc. Indeed, a New York Times/CBS News poll,
reported in the January 16, 1998, Los Angeles Daily News, reports that 50% of
Americans actually believe that abortion is murder, though only 22% believe that
abortion should not be permitted. This division is only possible if a substantial
number of people see responsibility, not "right to life," as the decisive issue.
From the poll, we might say that the 45% who believe in abortion with "stricter
limits" reflect this view. The obstacles to abortion in that sense serve, not to
prohibit abortion, but to make it difficult enough to drive home its seriousness. Of
course, to them it is serious, and responsibility is an issue, because of a sense
that an embryo or a fetus is a living thing, and a potential human being, so that
abortion, even if it is not murder, is a morally serious form of killing. As the fetus
approaches viability in the second and third trimesters, and abortion approaches
the palpable practice of infanticide, support for abortion drops off dramatically [3].

An attempt to turn the responsibility argument around in favor of abortion on

demand could be made by arguing that since a woman gets stuck with the
responsibility for caring for the child, should the pregnancy be unwanted and the
father irresponsible and unavailable, then no one else, who does not assume that
burden of responsibility, has the right to tell her that she must assume it. This,
again, is a poor argument, for two reasons: First, because by the same token the
disinterested third party would not have the right to tell the father that he should
assume his responsibility for the pregnancy; but if a third party can identify the
moral responsibility of the father, then there is nothing paradoxical or
inappropriate about identifying the mother's moral responsibility. Second,
because if this is not to be a good argument for infanticide, it cannot be a good
argument for abortion; for a mother may be just as personally responsible for a
newborn, which few would regard as not having the moral and legal status of a
person, as for a fetus in the womb, whose status as a person is precisely the
issue. To say that only the mother is affected by burden of the pregnancy is to
beg the question, for the responsibility for care is predicated on the presence of a
living being whose very existence hangs in the balance. The issue of the rights,
or absence thereof, of that being cannot be ignored because they reciprocally
impose duties on specific individuals. The "pro-life" response can still be: If you
don't want to assume the duties, then do not engage in the behavior that is liable
to subject you to them.
In general, the "pro-choice" argument for abortion that is hostile to putting any
obstacles in the way of abortion on demand is that a woman has a right to control
over her body at any time and that she has just as much right to choose an
abortion as to choose sex. Although it is not a view that is voiced, this argument
sometimes seems to imply that a woman has a right to have sex that is superior
to the right to exist of the being that may accidentally result. The "pro-choice"
people who believe in obstacles to abortion, as well as the "pro-life" partisans,
respond to that implied view by not wishing the impression to stand that sex
should be something that is morally and legally without consequences. Sex
without responsibility (Erica Jong's famous "zippless fuck" of the best selling
Seventies book, Fear of Flying) is perceived as what the "abortion on demand"
pro-choice people are pushing on society.

If the pro-choice response is that dead or mutilated women is a lot to pay for a
morally edifying lesson in responsibility, the only problem with that is that
feminism is perfectly willing to use a "that's just tough" argument of moral
responsibility against men when it comes to the very same issue: Since it is
entirely the right of a woman to choose abortion or not, the man who may have
unintentionally gotten a woman pregnant has no say in the matter at all, once he
has donated his sperm. If a man went to court because he wanted a woman to
abort a child that she wanted but he didn't, there would be a firestorm of
partisans from both Right and Left against him. He chose to have sex, therefore
his rights end immediately, and he is absolutely responsible for the rest of his life
for that child, regardless of his wishes. If he didn't want the responsibility, he
shouldn't have had sex with the woman. So feminists are perfectly willing to use
an argument that responsibility begins with sex against men, that their rights end
at intercourse, but then they are unwilling to allow that women should be just as
responsible about their own sexual choices and held equally responsible for the
rest of their lives for the consequences of their choices. This can easily strike
both men and women as a "heads I win; tails you lose" approach to sexual
responsibility -- a double standard.

Much of my interest in presenting these arguments is to consider that persons of

good will can be against abortion for substantial moral reasons that do not
involve fundamentalist religion or hatred of women or the belief that women are
just machines to make babies. The issue of responsibility can be as persuasive
to women, from whose ranks many pro-life activists come (including, recently,
"Jane Roe" herself, Norma McCorvey, of Roe v. Wade, who just got tired of the
seeing the fetuses stacked in the freezer at the abortion clinic where she was
working), as to men, and it is no help in addressing their concerns simply to
accuse them of betraying the cause of their sex, of hating women and
themselves, or of being a despicable "enemy" whose views are unworthy of
consideration. But after my presenting these arguments, one might expect me to
actually be "pro-life," even if in some diluted sense. So now let me recount why
that is not so.
The hard "pro-life" argument, that human life begins at conception, is
unacceptable to me, not just because the idea of forcing a raped woman to give
birth to the rapist's child is repugnant, but because the idea of a fertilized egg
being a human being is absurd. A fertilized egg is a protozoan with a human
genetic code in the nucleus. There is nothing sacred about the human genetic
code; it is in nearly every cell in the human body. That the protozoan grows into a
human being is undoubted, but that leaves us with only vague criteria to decide
when the line is crossed between animal life and human life. That there are only
vague criteria doesn't prove anything. There are vague criteria about lots of
things in life. A religious belief that the fertilized egg possesses a soul, and thus
is already fully human for that reason, provides a reasonable ground for a hard
"pro-life" view; but since it is a religious belief, it cannot form the basis of a public
law incumbent on everyone, who may be of various religious, and non-religious,
persuasions. In Japan, abortion is common; but religious belief there, in
Buddhism, allows that, although this is an evil, which should be atoned for by
repentance and religious practices, the child will actually be reborn and is not
permanently harmed.

On the other hand, even if we accept that the fertilized egg may be a person, this
still leaves untouched what I consider to be the principal argument for "choice,"
which is the argument of Roe v. Wade itself: Privacy. I say that human beings
have a natural right, not a Constitutional right, but a natural right, which the
courts are obliged to recognize under the Ninth Amendment, to privacy: the
privacy of property -- real and personal -- and of person. And nothing is more
private than our own bodies. A state with the considerable invasive power to
police bodies, in particular women's bodies in this case, is a state that will
exercise its power, as it already does in the Income Tax regulations and the
despicable war on drugs, to leave nothing else private. That is not the kind of
state that we should wish to have. Feminists of a totalitarian and Stalinist bent,
like Catharine MacKinnon, do not like the stated grounds of Roe v. Wade
because, as good totalitarians, they do not believe in privacy.

The "pro-life" response to this can be that crimes on private property are still
crimes and that privacy cannot protect murder. That is true, but it is not practical
to prosecute even real crimes when it is not in the capacity of the state to prove
them, and rights of privacy deny to the state such capacity in many cases. There
is even such an example from Islamic Law: there is a Tradition of the Rightly
Guided Caliphs (the first four Caliphs), which is one of the bases of Islamic Law,
that when a man informed the Caliph Omar that he had seen someone drinking
wine, which is forbidden by the Qur'ân, Omar asked him how he had seen this.
When the man replied that he had looked through a window into the miscreant's
home, Omar rebuked him for being in the wrong, for peering into a private home
(a very serious offense when we realize that the Arabic word "harem," h.arîm,
means, not just the women's quarters, but also "sacred" and "forbidden"). Omar,
as it were, threw out the case. We now would say this is an early example of the
"Exclusionary Rule," which disallows the evidence of crime if it is unlawfully
obtained.

Assuming that abortion is murder, however, does beg the question about
whether abortion is murder. Since reasonable persons disagree on that, what
privacy protects is not murder, but the reckoning of conscience about whether
abortion is murder or not [4]. Privacy also protects women from suspicion of
murder just because of natural spontaneous abortions and miscarriages. These
events are common enough and tragic and traumatic enough without adding the
gratutious terror of the police showing up, perhaps with a political axe to grind,
and starting an inquisition.

Thus, as a matter of law rather than morality, the privacy protection of abortion is
the best for a free society.

A final argument about abortion, such as Communitarians might contribute, could

be that it is "society" that must ultimately make a judgment about the constructive
or destructive effects of allowing abortion on demand. Such an argument might
become more acute once we realize that the typical feminist connection between
abortion and poverty is wrong: Their view is that large families create poverty
and that an increase in wealth, freedom, and self-fulfillment can only come with
the employment of every possible means of birth control, including abortion.
Historically this is clearly wrong.

It may be easy to associate large populations with poverty today, if we think of

places like India, but large and growing populations in the 19th century were
clearly associated with booming and powerful European states and the creation
of unprecedented levels of wealth for ordinary people. Even today some of the
densest concentrations of population in the world are in the most technologically
advanced and prosperous places, while some of the worst pockets of poverty
and starvation, in Somalia, Ethiopia, etc., are in places with very thin populations.
Since independence, India's problem has been its socialist government and
socialist economic policies, not its population. Japan, a very mountainous country
with a area comparable to California, and a population, heavily concentrated in
coastal plains, roughly half that of the whole United States, has produced the
second largest economy, and the largest economy per capita, in the world.

In American history, we may think of ethnic groups with high fertility rates as poor
groups, but one of the highest fertility rates in American history was that of Jews
at the beginning of the 20th century: 5.3 children by age 45, identical to Mexican
fertility and larger than black (4.2) or Irish (3.3). That fertility rate did not chain the
Jews to poverty. On the contrary. The large families created whole new sources
of wealth in the American economy. With wealth and success, the fertility rates
dropped, even before modern birth control and abortion were available. For
things like the social freedom of women, the development of wealth is absolutely
necessary, and that has tended to come in countries where booming economies
accompany growing population.

A Communitarian, consequently, might make "society's" judgment that there is no

necessity for abortion as a means of achieving wealth, freedom, and self-
fulfillment. Instead, promoting fertility may aid in the growth of a nation's wealth
and power, and thus ultimately allow for the freedom of women along with
everyone else. The objection to that kind of reasoning, whether in this case or in
any case, is that it is not the business of "society," which means government, to
make judgments about the good ends to which people's activities should be
directed. The state is not an enterprise with a specific purpose -- what has been
called a "teleocracy," the rule of some end. The state is merely that which
protects the honest enterprise of its citizens, a "nomocracy," a non-purposive
Rule of Law. If abortion is an institution that is destructive of some good end,
then the affairs of people who practice it will suffer, and the affairs of people who
do not practice it will not suffer. We shall know them by their fruits. It is not the
business of the state to second-guess such consequences, especially when it
can be wrong and thus end up applying the coercive force of government,
destroying people's lives, for the sake of a moralistic error.