Modern American opposition to abortion proceeds to parochial extremes, and Associate Justice Harry Blackmun’s majority opinion in Roe v. Wade has aided and abetted its progress.
My argument is straightforward: First, the Supreme Court ignored the diversity of religious beliefs about abortion which Blackmun acknowledged and which could and should have justified a ruling for the unqualified right of choice respecting abortions under the First Amendment. Then, the Court converted viability, a medical condition, into a legal standard; used it as a basis of abortion restrictions; and asserted a state interest in protecting the potential for life of the unborn. Thus, its ruling tacitly incorporated a specific religious belief consonant with the beliefs of some, but not all, Christians and of virtually no Jews. Perversely, this decision on a matter of conscience made an establishment of religion and prohibited an exercise of religious freedom. Yet, for the past four decades, arguments about biological conditions have deflected or obscured discussions of religious principles and values. The continuing controversy has fanned the flames of sectarianism and led to needless and endless litigation.
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Throughout history, most societies have discouraged abortions in different ways and to varying degrees. Some have stated different definitions of life or personhood for legal or religious purposes. This variety or variability is not, or should not be, surprising; the definitions are part of the cultures which articulate them. An example: the Navajo definition of the beginning of human life is the moment at which the born child first laughs—laughter once thought a unique human characteristic. Cultural pluralism is historical fact, and those who gainsay it in the service of their views on abortion do so only as an act of ideological fanaticism. In this note, I consider abortion only in America, in the context of historical circumstances, cultural values, and civil and religious beliefs.
Today’s heated debate contrasts with a general indifference to abortion, abortion laws, and their enforcement in the early years of this country. English Common Law on abortions prevailed in the colonies until about 1776, and adaptations continued in the states until the mid 19th century. Thereafter, state after state enacted new and more rigorous laws against abortion but still enforced them infrequently.
The evolution of the Catholic Church’s views of abortion is an example of the cultural basis of beliefs about abortion and of cultural changes in those beliefs over time. Traditionally, Christianity makes a crucial distinction between unborns before or after “quickening,” an archaic term (used here) for the first perceived movements of unborns, or, as doctrine calls it, “ensoulment.” Catholic thinkers in the 16th and 17th centuries argued that no such distinction had theological merit, but it was not until the mid 19th century that the Catholic Church abandoned the distinction and determined that life, as a matter of doctrine, begins at conception. Nevertheless, although always opposed to abortion, the Church did not become politically active in opposition to it until the mid 20th century. For most Christians, when (human) life begins—at conception, whether the moment either of fertilization or of implantation, or at quickening—remains a matter of varying legal, religious, and scientific definition and debate.
The Jewish definition of life is radically different. Its three dominant divisions—Orthodox, Conservative, and Reform—agree on the increasing value of the potential for life of unborns throughout their development. However, Judaism defines the beginning of human life as the moment of breach, that is, the emergence from the vaginal canal.
Both Christianity and Judaism agree on one thing: the increasing importance and value of the potential for life of unborns as they develop throughout pregnancy.
Notwithstanding, from time immemorial, women have sought abortions, the physical extraction or chemical elimination of a zygote, blastocyst, embryo, or fetus during gestation. Abortions are performed by pregnant women acting alone or assisted by others, from untrained amateurs to medical personnel. As a rule, even when societies enact laws to discourage abortion and, failing that purpose, to punish it, they rarely, if ever, punish the pregnant women either acting alone or having others assist them. Any punishments, unlikely as they are, are imposed, not on women who want an abortion or perform it themselves, but on those who perform it for them.
From a legal perspective, such a practice is strange. If a wife hires someone to kill her husband’s lover, both the killer and the wife are liable to charges of first-degree murder. But, if a pregnant woman hires someone to perform an abortion, only the abortionist, not the pregnant woman, is charged with a crime. In this respect, Roe v. Wade is less about giving women choice than about freeing medical abortion providers from liability.
Socio-economic circumstances once determined where abortions were performed and who performed them. As a rule, women with means traveled to states or countries where abortions by trained medical personnel were legal and safe. Women without means did not travel and took the risks of illegal, unsafe abortions without professional help. No one much cared if rich women obtained safe abortions out of sight or if poor women had damaging or deadly ones, though stories of back-alley butcheries were common enough. Only as modern medicine has made abortions safer and as abortions have become more accessible and affordable to more women have they and issues of legal rights and public funding become contentious.
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These basic facts have important implications for the controversy over abortion rights. Any discussion of abortion occurs in the context of government responsibilities and individual rights as defined by federal and state laws, case law, and, ultimately, the amended Constitution as interpreted by the Supreme Court. Legal definitions of, and decisions about, these responsibilities and rights change over time, as reflected in new or revised legislation and adjudication. Since federal and state governments have passed laws about abortion, and since suits have claimed that some of these laws violate federal or state constitutional rights, the Court has reviewed many of these laws and has decided or refused to decide many of the issues involved.
The fact that decisions of the Supreme Court are the law of the land does not mean, however, that its rulings correctly decide them, as the history of reversals makes clear. I believe that, in Roe v. Wade, the Court reached the right decision based on good grounds and hedged it with bad restrictions. Rightly, it restated an established “right to privacy” held to emanate from the Constitution and noted unenumerated rights of citizens under the Ninth Amendment. Wrongly, it made viability as a dominant consideration and the “potential for life” of unborns the basis for government interest in protecting it. By making a religion-specific concern with viability legally important and requisite to government involvement, the Court made a decision which necessarily violated First Amendment rights against an establishment of religion and for freedom of religion.
The fundamental questions are simple ones: if a pregnant woman does not have the sole right to choose whether or when to have an abortion, who does have the right and on what basis? In virtually all other matters of personal health and medical care, the individual has the sole right to choose or refuse treatment or specific treatments, or to delegate those decisions to another person.
However, government has rights to deny individual choice in some circumstances. It can protect the public by requiring health procedures like vaccination or quarantine to protect the public because carriers of transmittable diseases jeopardize the health of others. But abortion is not “catching”; one woman’s abortion cannot induce abortions in other pregnant women. By ordinary standards governing medical decisions, government lacks a public health interest in regulating abortions, and a woman’s choice to have an abortion remains hers at any point in her pregnancy.
Government also has rights to protect patients from unreasonable risks of damaging or deadly medical prescriptions or procedures. Because abortions are statistically safer than natural or Caesarian births, they require no regulations essentially different from those of other approved medical procedures to protect patients. Almost all recent state regulations curtailing abortions fail to address any reasonable medical risks to women because abortion procedures involve none. Again, by ordinary standards, government has no right to limit or deny a woman’s choice to have an abortion.
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The Supreme Court’s Roe v. Wade decision established the current legal framework for abortions, which focuses, not on pregnant women, but on unborns. It creates three trimesters (weeks 0-12, 13-28, 29-40) reflecting the then-existing understanding of the development of unborns at various stages of gestation and their viability, or ability to survive, outside the uterus. Then, viability was common on average at 28 weeks; today, viability is common on average at 24 weeks. Many opponents of abortion want to prohibit abortions after 20 weeks; notably, over 90% of abortions are performed in the first 12 weeks, over 98% in the first 20 weeks, less than 2% thereafter. These rare abortions in the last 20 weeks are most controversial and involve the greatest risk to pregnant women, yet their deaths from complications are exceeding rare.
The Supreme Court thereby ties decisions about abortion to viability, a medical condition with little history in law or medicine. The reason is obvious; until the advent of modern medicine in the mid 20th century, viability did not concern theologians or lawyers, not to mention politicians, because unborns delivered or removed from the uterus before full term rarely survived. However, once modern medicine made viability possible, theologians and lawyers put it in a convenient Christian context of traditional theological discussions determining at what point, conception or quickening, unborns attain the status of human life, merit religious endowments, and deserve legal protection. By contrast, Judaism disregards conception and admits quickening only as an event distinguishing lesser from greater potential for life of unborns, not as an indication or criterion of human life.
The paramount perversity of Roe v. Wade is the disparity between the Supreme Court’s acknowledging different theological beliefs of different denominations and faiths, and its disregarding that diversity about matters embraced by the First Amendment.
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer .... [Stoics, almost all Jews, and many Protestants have given] strong support for the view that life does not begun until live birth.
Obviously, the Supreme Court should not speculate about the answer; equally obviously, it should not stipulate one. But it does. Thus, another perversity of Roe v. Wade is its filling the vacuum created by its broad dismissal of diverse religious beliefs with a standard tacitly preferring some Christian beliefs to other Christian beliefs, not to mention Jewish ones. By making viability a dominant consideration, the Court assumes a distinctive, not a shared, Christian belief—and not a Jewish belief—that unborns, when viable, deserve legal protection. By treating “potential life” as if it were actual life, the Court prefers one Christian definition to other Christian and to Jewish definitions of life. Not surprisingly, its vagueness about the relationship between viability and the beginning of life has enabled unending, distracting, and irrelevant litigation based on medical science, not religious pluralism.
Using its creative potential-is-actual life equation, the Supreme Court has repeatedly stressed a government “interest in protecting the potentiality of human life,” another dominant consideration in allowing restrictions on women’s abortions. Roe v. Wade’s repeated statement of this claim does nothing to strengthen it. First, the claim is superfluous since most people, of faith or not, desire to protect that potentiality. Second, it lacks specification and substantiation; the Court merely asserts a government interest without defining it or determining whether it outweighs a woman’s interest.
The Supreme Court’s muddled reasoning raises the issue of pre-natal personhood, either from conception or from quickening. The motive behind the legislative effort to define unborns as persons endowed with their legal rights is to prevent abortions. Ironically, such status, unless indulged by a departure from standard legal principles, would not necessarily prevent all abortions. For, if the unborn were to threaten the mother with great emotional or physical harm or death during gestation, the mother would presumably have the right of self-defense by having an abortion.
Under its Roe v. Wade codification of a Christian-based schema, the Supreme Court legitimized an establishment of religion and an infringement of the freedom of religion of those, Christians or Jews, who do not accept it. All Christians and Jews make every effort to protect unborns out of respect for their potential for life; most Christians and all Jews suspend those efforts under certain circumstances. Since Christians are not agreed on religious beliefs regarding abortion, none should suffer the imposition of sectarian beliefs contrary to conscience. Unlike Christians, Jews are agreed; they share a religious definition about the beginning of life at breach, and religious laws about the circumstances or conditions which permit abortion. Jewish women should have the right to choose an abortion as a free exercise of their religion. Government restrictions on their choice, restrictions based on a Christian definition of life or its commencement, impose on Jewish women an establishment of Christian religion and infringe upon their freedom of religious expression—two acts violating their First Amendment rights. Seen in this light, the Court’s Roe v. Wade decision as well as successive decisions contravenes Constitutional rights and articulates an underlying anti-Judaic prejudice.
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The opposition to abortion comes from many sources for many different reasons. One reason is that, as abortions have become safer for all women and more accessible to the poor, thanks to improvements in medicine and the spread of heath services, religion-based opposition to them has spread and intensified. This intense opposition is part of a spreading anti-science struggle spurred by religious fundamentalists. Medical science makes it possible for men and women to do what many believed that only God could and should do. Likewise, many sciences working collaboratively—astronomy, geology, paleontology, biology—substitute evolution for creation by God’s word, as an account of the origins and development of life on earth. For those with a fundamentalist mindset, whether or not they are Biblical literalists, abortion defies, and evolution diminishes, God’s kingdom, power, and glory. Arguments which demonstrate different religious beliefs about the definition of life and about abortion or which document greater personal and social benefits than costs of abortion cannot persuade fundamentalists who reject rational arguments the conclusions of which they regard as defying God or diminishing His domain. Thus, the anti-abortion campaign is less about human life than about eternal life and the threat which medical science—indeed, all science—poses to fundamentalist faith. The animus fueling this campaign arises from a stark, unspoken fear that science is an ally, if not an agent, of the Anti-Christ.
I began this note with a fundamental question about a woman’s right to choose an abortion. This question is a political one: who decides—the government or the woman? Many who oppose government authority over citizens’ lives in general yet support its authority to limit or end abortions in particular distinguish between arguable secular and approved religious government authority. The struggle over the answer to this question is a small skirmish in the larger conflict between those who prefer theocratic to democratic rule in matters of faith and morals. To the degree that government decides any aspect of a woman’s choice about abortion, it tips toward theocracy; to the degree that the woman decides, it tips toward democracy. These are the ultimate stakes in the debate about abortion.
In American democracy, with a religiously pluralistic society and First Amendment guarantees against an establishment of religion and for freedom of religion, no level of government has a legitimate role in a woman’s decision about abortion. Since her decision is a matter of moral or religious conscience, no democratic government has a right to restrict an abortion at any stage in her pregnancy, to compel medical tests or procedures, to mandate medical information, or to require doctors to take into account anything other than her particular needs. The fundamental questions are simple ones; an analysis of the main considerations leads to equally simple answers.