The prospects for continued Constitutional protection of a woman’s right to choose (or not) to have an abortion are promising for opponents and perilous for supporters of Roe v. Wade. Justice Henry Blackmun’s 1973 majority opinion has failed to persuade many in the legal community that it is solidly grounded and soundly reasoned. (Of course, it has not persuaded many in some faith communities.) Its inadequacies have provided the means to complicate the issue and have made it conflict-prone ever since. Its history has been a tangle of medical, administrative, or financial laws or regulations restricting the exercise of this right at the state level and requiring judicial affirmations, revisions, or reversals at all levels of state or federal judicial systems. Intensified efforts to erode the decision and increased odds of judges picked to reverse Roe v. Wade put this woman’s right at great risk.
One understandable response by advocates to this growing threat has been to rally in support of Roe v. Wade. As the guardian of abortion rights and a symbol of women’s liberation for 50 years, it is not easily abandoned. However, the increasing threat of reversal by a politicized Supreme Court argues that the time has come to re-think the basis of abortion rights. The first step is to identify and admit defects and deficiencies in Blackmun’s opinion; the second, to construct an argument having clear Constitutional support and countering its opponents in their terms.
The abortion conflict has been a struggle on many battlefields between those arguing and acting on political principles and those arguing and acting on religious convictions. But this political-versus-religious divide is a false dichotomy. Abortion is a matter of religious belief and practice, inherently a matter of conscience. Advocates of abortion rights could attract support and disarm anti-abortion opposition by arguing that First Amendment rights protect decisions about abortions. They would force opponents to argue the supremacy of their religious convictions and, by court decision or state law, the right to impose their convictions on others. Accordingly, this paper urges advocates to shift their defense of abortion rights from the privacy argument of Roe v. Wade to an argument based on The First Amendment, with its provisions for freedom of religion and from an establishment of religion.
1
Blackmun’s opinion summarizes legal, medical, and religious histories of abortion, with accounts of historical practices worldwide, English and American legal and medical traditions, and philosophical and religious beliefs, but makes little use of them. On the one hand, his opinion, noting decisions discovering a right to privacy in various Constitutional amendments—First, Fourth, Fifth, Ninth, and Fourteenth—regards the Ninth and Fourteenth sufficient to ensure a woman’s right to choose an abortion. On the other hand, his opinion limits a woman’s privacy-based right by a state’s right to protect the increasing “potential for life.” Blackmun defines this “potential” by a trimester division of pregnancy (weeks 0-12, 13-28, 29-40) on the basis of the then-existing knowledge of unborns’ development and their ability to survive outside the uterus at various stages of gestation—that is, their viability. His opinion thus asserts both a woman’s right and a state’s right—with the result being unending attacks on or defense of Roe v. Wade and inflamed conflicts between women and their state governments.
Blackman’s opinion has major defects. One, it disregards the acknowledged diversity of philosophical and religious beliefs defining life and its beginning. Blackmun writes:
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....[All Jews and many Protestants have given] strong support for the view that life does not begin until live birth.
Of course, “the difficult question of when life begins” is difficult because the answer depends on the definition of life, which depends, not on “man’s knowledge,” but on the meaning of a word with a remarkable number of meanings. (My argument also applies to the idea of a pre-natal “right to life.”) Obviously, the Supreme Court should neither speculate about “the answer” (emphasis added), as if there were one, nor stipulate one.
But it does, by commingling two distinct issues. The first is a matter of religion: when does life begin—at conception, at quickening, at breach; the second is a matter of medical science: when is life ex-utero possible, and is that possibility independent of medical support or dependent on medical intervention. Without offering an explicit rationale, Blackmun prefers the answer, the definition, of science to the answers, the definitions, of religion. His preference apparently reflects an assumption that medical science provides a reasonable, practical resolution of irreconcilable religious differences. The assumption is wrong. A scientific definition of the beginning of life is a stipulation serving scientific methodology; it is not a standard for deciding non-scientific issues. His preference, far from being reasonable, is coercive. Since any scientific answer to this religious question corresponds to the religious convictions of only some, not all, women, invoking science as the standard presumes to tell other women that it properly dictates how their religion should define the beginning of life. Whether he knows it or not, he favors one Christian definition of the beginning of life and disfavors other Christian and all Jewish definitions. Whether he means to or not, he imposes one sectarian Christian standard on those Christians who believe that life begins at other stages of gestation and on all Jews, who believe that life begins at breach.
Two, Blackmun’s opinion is flawed by his resort to viability, a medical condition with little history in law or medicine. Until the advent of modern medicine in the early 20th century, viability did not concern theologians and lawyers, not to mention politicians, because unborns removed from the uterus or delivered before full term rarely survived. However, once modern medicine enhanced their chances of survival, everyone assumed that what science made possible, society should accept as an answer to a contentious religious question or at least as common ground for dismissing it. So most theologians, lawyers, and politicians, knowingly or not, made viability part of traditional Christian discussions determining at what point, conception or quickening, unborns attain the status of life, acquire religious and political endowments, and require or deserve legal consideration. The resulting enactments or decisions may accord with majority views, but they ignore the religious beliefs and practices of others and thereby establish a necessarily religious standard of some which violates the religious convictions of others.
Even so, viability is an unreliable, dubious standard. Blackmun’s trimester division of pregnancy was a rough approximation of the conditions of viability. However, advances in medical science extend the conditions and thus move the boundaries of his division. But these shifts based on scientific developments entail controversy and conflict, and enable legal challenges based on any claim, scientific or not, sectarian in motivation or not, which raises medical issues. Ironically, for the religiously motivated, the earlier the viability, the greater the reliance on artificially assisted as opposed to naturally assured survival ex utero, with science in the role of life-giver, a role which they would otherwise assign to God.
Three, Blackmun’s opinion assumes that the viability of the unborn gives the state an interest “in protecting the potentiality of human life” or the “potential for life.” This phrase has several deficiencies, not the least of which is a contradiction. On the one hand, it implies that the unborn is not a life in utero, but a life only after delivery, when the “potential” becomes actual. On the other hand, it treats the potential life in utero as if it were actual life. It assigns the unborn the status, not recognized in Constitutional law, of a person entitled to the protection of the state. Although Blackmun assumes and repeatedly asserts this potential-is-actual-life equation, he neither specifies the sources, nature, or magnitude of that state interest, nor justifies it by balancing individual and state rights over the period of the pregnancy. He assumes that the state’s right increases during the pregnancy as the “potential for life” increases and thereby allows increasing restrictions on abortions. He does not assess the woman’s interests or concerns during her pregnancy, especially under changing circumstances or conditions, or with greater knowledge. Moreover, since most women, whether of faith or not, increasingly desire to protect their unborn over time, and since most religions specify increasingly stringent guidelines or standards for abortions, the legal concern for the “potential for life” is superfluous—one more reason to question the justification of a state interest or the necessity for state intervention. Ironically, Blackmun’s opinion, so far from protecting a woman’s right provides the means for diminishing it.
The effect of Blackmun’s majority opinion has been to pit the state’s power to regulate abortion against a woman’s conscience to choose an abortion. It has enabled a growing number of states to restrict this right of women almost out of existence. Many attempts to restrict any aspect of abortion—medical procedure, clinical setting, administrative arrangements, or financial requirements—by court case, legislation, or regulation to impede or eliminate women’s’ ability to have an abortion if they choose to have one. Many profess concerns about women’s health to justify requirements for medically or clinically unnecessary and sometimes dangerous procedures. Although abortions are safer for women’s lives and health than induced or even natural deliveries of the unborn are, these facts count for little in the enactment of religiously or politically motivated restrictions on abortion.
2
Any thoughtful discussion of abortion addresses the relative weights of individual rights and government responsibilities in the context of federal and state laws, case laws, and the amended Constitution as interpreted by the Supreme Court in light of changes in social circumstances, political conditions, and legal thinking. Underlying many state and federal cases are two fundamental questions: One, does a pregnant woman have the sole right to choose whether to have an abortion at a time of her choosing. Two, if not, what grounds give the government a role in that choice? For, in almost 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.
Admittedly, government has a right to deny individual choice in some circumstances to protect the public. It can require health procedures like vaccination or quarantine to protect the public because carriers of transmittable diseases jeopardize the health or life of others. But abortion is not “catching”; one woman’s abortion cannot induce abortions in other pregnant women. By ordinary standards applicable to medical decisions, no public health interest justifies government regulation of abortion.
Government can also prescribe or proscribe medical procedures or medications to protect patients from unreasonable risks to health or life. Because abortions are safer than natural or induced births, they require no regulations essentially different from those of other approved and comparable medical procedures to protect patients. Special regulations curtailing abortions address no unreasonable medical risks to women. Again, by ordinary standards, no abortion-specific medical reason justifies a government limit on or denial of a woman’s choice to have an abortion.
Blackmun’s claim of a government interest in the “potential for life” is unrelated to conventional government interests in public health and patient protection. Indeed, it shifts the focus of legal consideration from the woman to the unborn, with the problems which that new consideration involves, as noted above, and others. For one, if laws to prevent abortions departed from precedent by defining unborns as persons entitled to the protection of law, they would not likely apply in all cases. For instance, if an unborn threatened the mother with death or great physical or emotional harm during gestation, the mother would presumably have the right of self-defense by having an abortion. His claim seems more a judicial juggling act and a political sop to the states than a sensible legal decision. Blackmun might have meant to offer a compromise, but it effected a legal muddle and perpetuated a political and religious controversy. The lesson should be that halfway Constitutional decisions settle no issues and satisfy no one.
3
America’s religious pluralism means that its religions have different definitions of the beginning of life. State and federal courts should have recognized that controversies over abortion were religions controversies, however opponents couched their arguments. Advocates of a woman’s right to choose to have an abortion have inclined to talk of political rights; opponents have inclined to talk about religious values. Both meet in one and the same place: The First Amendment.
Blackmun’s opinion is perverse in recognizing, then rejecting, different religious definitions of the beginning of life. Puzzling is its failure of logic to relate these religious definitions to religious beliefs, thence to First Amendment rights to freedom of religion and freedom from an establishment of religion, thence to the exercise of those rights in a woman’s decision to have an abortion (or not). Using that logic, Blackman could have decided Roe v. Wade, not on the flimsy basis of penumbras of privacy presumably implied by various other amendments, but on the sturdy basis of the direct, explicit language of the First Amendment.
To defend a woman’s right to an abortion, advocates should prepare a Plan B if, as seems increasingly likely, a conservative Supreme Court overturns Roe v. Wade. That Plan B would advance the argument on Constitutional grounds which would be lasting in law and attractive to a Supreme Court disposed to extend religious considerations into public policy questions. Plan B should be an argument clear and clean in moving from religious beliefs about life and its beginning to First Amendment religious rights to a woman’s right to choose an abortion. A decision on that basis would deny federal and state governments the right to impose any restrictions on abortions different from comparable medical operations. One result might be the reduction or elimination of the clutter and congestion in federal and state courts from partisan cases with irrelevant arguments about real or bogus medical science.
The fundamental question about abortion is a political one; who decides—the woman or the government? The struggle over the answer to this question is one skirmish in the larger conflict between those who prefer a dogmatic theocracy to a Constitutional democracy 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 for freedom of religion and against an establishment of religion, no level of government has a legitimate role in a woman’s decision about abortion. Since it is a matter of conscience, no democratic government has a right to restrict an abortion at any stage of 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 and well-being.
No comments:
Post a Comment