My blogs on abortion go back to 2009. In 15 years, I have written 14 blogs dealing primarily or exclusively with abortion. I am not obsessed by the topic; I find it simply fascinating because abortion is the nexus of issues of culture, history, philosophy, politics, and religion. For an intellectual like me, no subject gets better than that.
The central issue of abortion is the definition of the beginning of life. But there is no “the” definition; any definition depends on its context, usually religious, but sometimes moral or philosophical, in a particular culture at a particular historical moment. A case in point is Catholic doctrine. In the High Middle Ages, Thomas Aquinas established the Church’s position from the 13th to the 19th centuries. He defined life as commencing at “ensoulment,” that is, when God introduced the soul into the fetus, as indicated by “quickening,” or fetal movement. Catholic scholars in the 16th and 17th centuries argued that life begins at conception, and the Church adopted this position in the 19th century and maintains it today. The Church’s definition of the beginning of life is a verbal stipulation made according to its contemporary theological interests. Its shifting definitions of the beginning of life mocks its rigid dogmatic stance on the issue.
Other faiths have different definitions. Depending on the denomination, Protestants have definitions ranging from conception to ensoulment to birth. Jews, whether Orthodox, Conservative, Reform, or Reconstructionist, share the same definition: the moment of breach. Muslims define the beginning of life as quickening. I am told that Navajos define the beginning of personhood as the moment a child first laughs. Of course, other religions have their own definitions, some like, some unlike, these.
These are the basic religious facts. The basic political fact in America is that, under the First Amendment to the Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” However, the courts have handled the issue of abortion badly in two ways. One, they have consistently avoided viewing abortion as a practice regarded, treated, even justified, according to different religious definitions about the beginning of life. Two, they have made rulings which, since they are not congressional, but judicial, violate the spirit, if not the letter, of the Constitution. For stipulating any particular definition amounts to an “establishment of religion” and thereby places restrictions on the “free exercise” of religion. The central flaw of Justice Blackmun’s opinion in Roe v. Wade and of Justice Alito’s opinion in Dobbs v. Jackson Women’s Health Organization is that they approve what the First Amendment prohibits: a necessarily religious definition of the beginning of life.
The result is that the courts have effectively reinforced society’s divide between abortion as a religious issue about individual rights and abortion as a political issue about government power. The certainty that the divide is entrenched and will remain so rests on the incommensurability of the two entrenched positions, one religious, the other political. The strengths of these positions will fluctuate, and no permanent resolution will result so long as the parties to the controversy do not re-think their positions.
The clearest example of this division of rights versus power is the controversy following the decision of the Alabama Supreme Court which virtually outlawed in vitro fertilization (IVF). This court ruled that life begins at conception and implied that any destruction done to the zygote (though commonly called embryo) thereafter amounted to homicide. The furious reaction across the country compelled Republicans to declare their support for IVF and to initiate legislation to protect IVF as a legitimate medical procedure. This court was clear about the religious underpinnings of its opinion; Republicans were clear about the political pressure prompting its proposed legislation.
However, the court-instigated controversy cannot be quieted or quelled by hurried legislative jiggling and juggling in an attempt to appease both parties. For those who believe that life begins at conception and must be protected thereafter, the zygotes are life forms which must be protected in any condition and in all circumstances, whether in utero or in storage. For others, especially those for whom IVF is the only means to have naturally born children, the risks that storage presents to those life forms, that the number of zygotes may be greater than the number of desired children, or that the zygotes may be subject to medical use, damage, or disposal, are risks worth taking. The contradiction between the definition of the beginning of life and its sanctity, and the desirability of IVF regardless of the risks to zygotes will continue the instability of legislative and judicial responses to the problems which the issue of abortion presents.
Abortion demands a choice between antithetical positions: conception or exceptions. Those believing that life begins at conception can make no principled exception for IVF and the possibility of “murdering” one or more zygotes. Those believing that IVF is allowable cannot believe that life begins at conception and justify the possibility of “murdering” zygotes because of the desire for a born child. For allowing such a desire to excuse “murdering” zygotes opens the door to allowing other justifications for ending potential life by aborting zygotes, embryos, or fetuses. Indeed, any exception means that there is no rational basis for making exceptions in some cases and not in others; and not making them in all. Those refusing to choose one or the other because they want both have only coercion to overpower the illogicality and instability of their indecision.
The only realistic resolution of this controversy is to abandon a narrow sectarian definition of the beginning of life and to admit that there are many religious definitions of the beginning of life, all of which claim to respect human life as religions variously define it. For example, Judaism has increasingly restrictive laws detailing the conditions and circumstances under which an abortion is permissible as gestation progresses. The alternative is a repressive theological autocracy which mutilates the Constitution. In matters pertaining to abortion, the courts should render decisions and legislatures should enact laws which discourage people from meddling in other peoples' lives and from trying to use the government to do their meddling. Such judicial decisions would eliminate a lot of unnecessary conflict and avoid a lot of human misery.
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