Archive

Mark Goldblatt analyses the moral and legal arguments on both sides of America's most divisive issue.

January 22nd has evolved into a national red letter day of sorts, the anniversary of the Supreme Court's landmark 1973 Roe v. Wade decision. Commemorations abound, typically sloganeering rallies, and mainstream journals churn out perfunctory retrospectives. Still, abortion remains the most divisive issue in the United States since the abolition of slavery. In fact, the very details of the ruling seem to recede, year by year, deeper into a foam of overwrought rhetoric. Specifically, therefore: Roe guaranteed a woman's right to terminate a pregnancy in the first trimester (in all instances) and in the second trimester (to safeguard her own well-being, broadly defined); only in the third trimester of pregnancy, the Roe decision held, could the rights of the fetus be taken into account and abortion restricted by the state.

What I'm about to argue is that the debate over abortion now continues on three distinct but inter-related levels. The first level, which might charitably be called Popular Arguments, consists of absolutist slogans and unexamined logic; it's this level of argumentation that often crops up at unpleasant dinner parties and on phone-in talk shows. The second level consists of nuanced speculations on natural law and individual rights; it's conducted by moral philosophers beneath the radar of the mass media. The third level consists of evolving theories of constitutional interpretation; it's conducted in the courts by legal scholars. To get at the second and third levels of the abortion debate, however, it's useful to address the popular arguments - if only to demonstrate that the issues involved are necessarily nuanced and evolving.

On the 'pro-choice' side of the abortion debate, two popular arguments dominate:

A woman has the right to control her own body. Though the reasoning is much older, the feminist author Susan Brownmiller attributes the precise wording to Patricia Maginnis, founder of an illegal abortion referral service in California in the years prior to Roe. As a defense of abortion rights, however, the argument is either demonstrably false or logically meaningless. Even if we grant the contentious point that the fetus is part of the woman's body, it's simply untrue that American citizens, male or female, exercise absolute sovereignty over their own bodies. If that were the case, not only would 49 states have to join Nevada in the legalization of prostitution, they would also have to permit the selling of internal organs for transplant - which would in turn warrant the bodily exploitation of poor people by wealthy people. For good reason, therefore, there's no right to absolute bodily sovereignty. However, if we take Maginnis's words in a weaker sense - specifically, that a woman's right to control her body extends to include the right to terminate a pregnancy - we're left with a tautology: a woman should have the right to an abortion because a woman has the right to an abortion.

Without access to legal abortions, women will be forced to obtain unsafe, illegal abortions. Let's again grant the hidden premises, namely: 1) if states could outlaw abortions altogether, many would, and 2) women in those states who couldn't afford to travel would turn to 'back alley' alternatives. This is, nevertheless, an attempt to resolve a moral question on practical grounds. The danger is that identical logic could be applied to, say, cockfighting. Like abortion, cockfighting is apt to continue despite sanctions, so legalization would let the government ensure its conduct under more wholesome circumstances. Certainly, practical considerations can influence our decision to enforce a law, or mitigate the penalty when a law is broken; they cannot, however, determine the morality of the law itself.

The 'pro-life' camp rests its case on a single popular argument:

Abortion is murder. The hidden premise here is that the unborn life, from its conception, constitutes a legal person. Even among those who profess this, however, few adhere to its literal truth. The equation of abortion with murder logically entails its banning in all circumstances - including to save the mother's life, or to end a pregnancy resulting from rape or incest. Yet according to a 2000 Los Angeles Times poll, 85% of Americans would allow abortions if the mother's physical health is at risk, 54% if her emotional health is at risk - numbers impossible to reconcile with the 57% who claim that abortion is murder.

Common sense, moreover, urges that we distinguish among the intrinsic values of a two-celled embryo, a second-trimester fetus, and a two-week-old baby. Such distinctions are, indeed, made by most pro-life apologists; the proof is their quick condemnation of violence at abortion clinics. But if those apologists considered abortion literally murder, then such violence would represent a morally justifiable response to infanticide - even as bombing a guards' barracks at a Nazi death camp would be morally justifiable.

Clearly, then, the popular pro-choice and pro-life arguments dissolve under logical scrutiny. Which leads to the second level of the debate, the exchanges among moral philosophers. Without exception, these arguments hinge on a fundamental conflict of rights: the right to life of a potential human being (to omit the word potential is to presuppose what one side wouldn't admit) versus a liberty-right of a pregnant woman.

The pro-choice side has put forward two notable arguments on this level:

The sick violinist analogy. Two years prior to Roe, Judith Jarvis Thompson published an influential essay called 'A Defense of Abortion' in which she developed an analogical case for a woman's right to end a pregnancy. Suppose, Thompson writes, you awakened to find yourself hooked up through intravenous tubes to a desperately ill violinist. The violinist, you're informed, requires the shared use of your kidneys for nine months - or else he'll die. Clearly, it would be generous if you agree to continue such an arrangement. But can the state compel you to save the violinist? Clearly not. Likewise, Thompson reasons, the state cannot compel a woman to continue a pregnancy.

The problem with Thompson's argument, as Ronald Dworkin points out in his book Life's Dominion, is that it assumes "a pregnant woman has no more moral obligation to a fetus she is carrying ... than anyone has to a stranger." The analogy fails to take into account the unique bond between fetus and mother. But if the law disregarded that relationship, one consequence would be no natural presumption on the mother's behalf in custody disputes - so if both parents sought custody of their child, the mother's chances would be no better than 50-50. Such logic would, at minimum, allow husbands to leverage more lenient terms of separation in exchange for a promise not to seek primary custody.

The pre-sentient fetus, although it may have a 'detached' value, has no 'derivative' rights. Though skeptical of Thompson's analogical argument, Dworkin himself develops a multi-layered defense of abortion rights in Life's Dominion. He grants, from the start, what many pro-choice advocates deny: that the unborn life, at whatever stage, possesses an intrinsic value. Even in its embryonic phase, it's more than a protoplasmic blob, waiting to be surgically disposed of. Human life, according to Dworkin, from conception to expiration, "is sacred just in itself." It is people's sense of that essential sanctity that forms what he calls the 'detached' objection to abortion ('detached' since he's detaching the objection from any thought that the fetus possesses rights of its own). This accounts for the rape and incest exceptions many pro-lifers allow - they don't really think that the fetus is the equivalent of a person, or that abortion is therefore the moral equivalent of murder. But their perception of the sanctity of human life, in every stage, leads them, except in extreme cases, to condemn the practice. Dworkin then distinguishes the 'detached' objection, based on human sanctity, from the 'derivative' objection, based on the right to life a fetus might derive from its own interest in being born. The latter objection, Dworkin terms "scarcely comprehensible" for the pre-sentient fetus, noting that to possess a 'right', something must first possess an 'interest'. And to possess an interest, a thing must be sentient. For example, a mink is sentient; people ascribe different levels of consciousness to minks, but no one disputes that a mink seeks to avoid physical pain. Minimally, it follows, a mink has an interest in avoidance of pain. Whether a mink derives rights from that interest is, again, arguable. Animal rights activists argue it does; fur designers argue it doesn't.

The onset of sentience in fetal development (occurring near the end of the second trimester, with the first hints of a nervous system) is key for Dworkin because a non-sentient thing cannot possess even a minimal 'interest' in the avoidance of pain; hence, the pre-sentient fetus cannot derive rights based on non-existent interests.

Dworkin's case is powerful. On the one hand, he addresses the qualms of many pro-life advocates whose sense that abortion is evil admits inexplicable exceptions in instances of rape and incest. On the other hand, his distinction between the pre- and post-sentient fetus parallels Roe's own distinction between abortions in the first two trimesters and abortions in the third trimester.

As with the popular level of the abortion debate, there is only one significant pro-life counter-argument on the second more nuanced level.

The argument from natural law. The principal objection to Dworkin's analysis is taken from natural law theory. Natural law effectively unites the derivative and detached objections to abortion and, thereby, transcends the logical pitfalls inherent in each individually. The premise underlying natural law is that God is a willing partner in every act of procreation. It's not requisite to the derivative case, as Dworkin presupposes, to hold that the fetus has interests of its own in its pre-sentient stage; rather, natural law teaches that God has an interest in the fetus. Moreover, according to natural law, it's from God's interest in the fetus, signaled by his creation of an immaterial soul, that the fetus derives its right to life. So, too, though Dworkin doesn't acknowledge it, natural law underlies his 'detached' objection to abortion based on people's sense of the essential sanctity (Dworkin's choice of words is significant) of human life in every stage. For that sense, however vague, is predicated on the belief that human beings are distinct from, and more valuable than, other living things. The only aspect of human beings that might 'sanctify' them, even in Dworkin's limited usage, is a God-created soul. Brute intelligence cannot serve as the criterion for sanctity - or else killing a mentally retarded person would be less evil than killing a university professor. Without an implicit recognition of man's spiritual nature, in other words, Dworkin's invocation of sanctity becomes meaningless.

It is simply the case that many Americans cling to the notion of a third active participant in the process of human creation - namely, God. The readiness of many pro-life advocates to permit an exception to save the mother's life becomes explainable, in this view, in virtually quantitative terms: the mother's life carries both her own and God's interests - from which a full panoply of rights derive; the fetus's life carries God's interests alone, from which only a partial set of rights derive. By two criteria to one, the mother's life wins out. To be sure, a natural law conception of rights was critical to Thomas Jefferson when he wrote that all men were created equal and endowed by their Creator with certain unalienable rights. The singular noun 'Creator,' notwithstanding the limited Deistic meaning Jefferson himself might have attached to it, is inexplicable without reference to ensoulment. For in what sense would God be counted the Creator of every person except as the Creator of his soul? Two human parents are a person's creators, in the plural, with regard to his material nature. It is God's creative interest in every human soul, according to Jefferson's formulation, that endows people with unalienable rights. And it is the existence of these unalienable rights that the positive statutes of the Constitution were arguably designed to safeguard.

Which leads us, finally, to the third level of the abortion debate, a level more sophisticated than the sloganeering of public rallies and more pragmatic than the rarefied speculations of moral philosophers; it's the level engaged by legal scholars, consisting of variant readings of precedent and conflicting theories of constitutional interpretation. The issue also narrows from a consideration of abortion per se to a consideration of the Roe v. Wade decision of 1973. Three positions, at minimum, must be considered:

Roe v. Wade was the right decision for the right reason. Justice Harry Blackmun, author of Roe, declared that states couldn't enact bans on abortion during the first trimester of pregnancy because such laws violated a woman's constitutional right to privacy in the personal matter of procreation. Yet the Constitution itself doesn't mention a right to privacy. There was, however, a specific precedent for such a right in the 1965 Griswold v. Connecticut decision wherein the Supreme Court overturned laws forbidding the sale of contraceptives to adults - on the grounds that people enjoyed a constitutional right to private decision-making in certain personal matters that no legislation could rescind. The Griswold ruling, itself, was based on the 'due process' clause of the Fourteenth Amendment: "Nor shall any State deprive any person of life, liberty, or property, without due process of law." The Court ruled that buying contraceptives, as a private matter which harms no one, is a 'liberty' guaranteed under the amendment. The conceptual leap from Griswold to Roe isn't far - unless, of course, the fetus were considered a 'person' with its own set of rights. In that case, Griswold might still stand, but Roe, because of the harm done to the fetus/person, would fall by the wayside. Indeed, if the fetus were considered a person under the Constitution, states would be compelled to ban abortion by the equal protection clause of the Fourteenth Amendment - the fetus itself would qualify for equal protection. The question of whether to permit abortion couldn't, in that case, be left to individual states any more than the question of whether to permit infanticide. Yet even before Roe, many states permitted abortions in the first two trimesters. Thus, historically speaking, there is no case for the pre-sentient fetus as a fully-protected constitutionally-defined person.

To summarize Blackmun's argument in the Roe decision: since the pre-sentient fetus cannot be defined as a person under the Constitution, and since the right to privacy in the matter of procreation has been affirmed by the Griswold case, it's unconstitutional for states to prohibit abortions - at least until the fetus develops into a constitutionally-recognizable person.

Roe v. Wade was the right decision for the wrong reason. The feminist lawyer, Catherine MacKinnon, though vehemently pro-choice, has criticized the right-to-privacy argument used by Blackmun to decide Roe. MacKinnon reads the Blackmun decision to mean that a state has no compelling interest to interfere in actions occurring in the privacy of the home, and she worries that the state might thereby forfeit the right to rescue a battered wife from her abusive husband. But, as Ronald Dworkin points out, MacKinnon's has failed to distinguish among three senses 'privacy'. The right to privacy can be construed as an assertion of spatial sovereignty ("I control what happens in my home.") or of confidentiality ("No one has a right to know what happens in my home.") or of freedom in decision-making on private matters ("Certain issues are mine alone to decide."). The thrust of Blackmun's right to privacy argument is only the third sense. A battered wife, thus, would still be entitled to the state's protection; indeed, her liberty interest, affirmed in the Fourteenth Amendment, guarantees her freedom from physical coercion and virtually obliges the state to take action on her behalf.

Nevertheless, many feminists maintain that women's abortion rights should rest on the state's burden to promote gender equality - a burden mandated, it's argued, by the equal protection clause of the Fourteenth Amendment: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." The state, according to the standard reading of the clause, cannot enact legislation to curb the liberty of a particular class of citizens - it cannot, for example, make a law restricting the access of black people to bank loans. Banning abortions, the argument goes, would prevent only women from getting them - thus curbing only their liberty; the ban would have no practical effect on men. Therefore, such a ban seems to violate the equal protection clause. But the immediate reply is that banning abortions means men cannot get them either - a liberty their biology renders moot.

There is, however, a deeper, more controversial, version of this argument, associated with Mackinnon and Andrea Dworkin. It begins by observing that the decision to bear a child significantly impacts a woman's social and economic status. According to a 1995 Census Bureau report, women earn only 76 cents for every dollar their male counterparts earn. However, among women aged 27-33 who've never had a child, the figure is 98 cents. In short, there exists a distinct correlation between a woman's decision to start a family and her future ability to earn money at a rate comparable to a man. Moreover - and here the argument's more controversial elements emerge - a woman cannot be held fully responsible for her pregnancy because sexual intercourse, in a patriarchal society, is inevitably coercive, an act of aggression by which women's subservient status is maintained. Dworkin has famously asserted that sex is never wholly consensual - a position caricatured (inaccurately) as the equation of sex with rape. In reality, Dworkin's argument is more subtle; the true insidiousness of patriarchal culture, she contends, is that it instills an unconscious sense of the rightness of socially-constructed gender roles. Men are conditioned to find pleasure in dominance, whereas women - against their self-interest - are conditioned to enjoy submissiveness. Thus, Dworkin reasons, sex is always coercive; a woman's decision to become pregnant can never be construed as free. The state itself, in a patriarchal society, is complicit in every unwanted pregnancy. And since the state has a responsibility, stemming from the equal justice guarantee under the Fourteenth Amendment, to promote gender equality, it must ensure women legal recourse to end their pregnancies.

The difficulty with Dworkin's reasoning is that it constitutes less a specific argument than a fully-formed ideology. If you accept the premises, it becomes a powerful pro-choice case. But there's no compelling objective evidence to accept her premises about men and women.

Moving on, there is the argument that abortion rights should be grounded in the First Amendment's non-establishment of religion clause rather than the Fourteenth's due process or equal protection clauses. The argument runs as follows: Since, as we've seen, the pre-sentient fetus cannot be deemed a person under the Constitution's definition, the issue of life's beginning must remain a question of personal religious conviction - not statutory determination. Thus, to curtail a woman's access to an abortion is tantamount to the state's prescribing a religious belief. The state cannot, in other words, insist that life begins at conception - individuals may believe that, but they cannot band together, even through the exercise of electoral majority, and thereby deprive others of a liberty rooted in religious dissent.

As we'll see, however, the principle of non-establishment of religion cuts both ways in assessing the Roe decision.

Roe v. Wade was the wrong decision. Given the Griswold decision as the precedent for a right to privacy, and plausible further support from the equal protection and due process clauses of the Fourteenth Amendment, and the non-establishment of religion clause of the First Amendment, the classification of Roe as an outright constitutional error would seem dubious. Nevertheless, a case can be made that cedes to Roe both legal precedence and interpretive likelihood but argues against the decision on the grounds that it violates the underlying vision of the Constitution. The Constitution, remember, was written "to form a more perfect union" - a perfection that can only be gauged in terms of the government's ongoing ability to secure certain individual rights based on the equality of every citizen before the law. But which rights? The right to vote? To be sure. To worship freely? Yes, certainly. The right to a high school education. Again, yes. To a job? Probably not. To urinate in public? No. To drive 90 miles per hour on the interstate? No. Though a person may develop a temporary interest in public urination or highway speeding, he never acquires a corresponding right. Evidently, then, the individual rights a government does well to secure are circumscribed occasionally by a concern for collective well-being. The public interest, in other words, can at least occasionally trump the private.

Now consider whether there exists a 'right' of reproductive choice - and for the moment, let's concern ourselves not with the contentious question of abortion but with the largely settled question of procreation. Imagine the case of a mentally retarded couple who want a child. In the first half of the last century, this issue was far from settled; 24 states, between 1911 and 1930, enacted sterilization laws aimed at the mentally retarded. The Supreme Court itself upheld the constitutionality of such laws in 1927 - a decision featuring Justice Oliver Wendell Holmes's now infamous remark: "Three generations of imbeciles are enough."

From a utilitarian view, which prioritizes the collective weal, it's bad for a mentally retarded couple to procreate. It's indisputable that their offspring are more likely to be mentally retarded than the offspring of a couple in which neither parent is retarded, or in which only one parent is; it's also indisputable that a mentally retarded child is more likely to require public assistance. How, then, does the private interest of the mentally retarded couple trump the collective interest? Whence, given the likelihood of a burdensome outcome, a mentally retarded couple's right to procreation?

The answer returns us to the second level of the abortion debate, to the theory of natural law and unalienable rights. The equality of persons before the law derives not from a measurable equality, such as I.Q.. That equality plainly doesn't exist. Rather, equality before the law derives from a immeasurable equality - namely, God's endowment of a soul. Though the collective weal might be served by social programs that pre-sorted individuals according to their unequal endowments, that channeled only the intellectually promising towards higher education and only the physically gifted towards sports, the suggestion is constitutionally repugnant because the collective weal is trumped by the equal endowments of life, liberty and the pursuit of happiness - equal endowments which, in the only coherent reading of Jefferson's words, are themselves rooted not in our physical but in our spiritual natures.

In short, if we understand the Constitution as the system of positive laws by which Jefferson's 'unalienable rights' are secured, then the Constitution implicitly compels the states to recognize ensoulment - that is, God's work in the creation of personhood - as the starting point for equality before the law. Even if, as Ronald Dworkin contends, the fetus has no interest in its own survival, and thus derives no right to life from its own interest, nevertheless, God's unique interest in the fetus's existence, signaled by the act of ensoulment, might well be sufficient to secure the fetus's unalienable right to life. The difficulty with the Roe decision now becomes manifest: on the one hand, the states must affirm ensoulment as the actualizing element of legal protection; on the other hand, the states, in the wake of Roe, cannot define the moment of ensoulment before the third trimester.

Let me restate that. If the Constitution is meant to secure the unalienable rights of life, liberty and the pursuit of happiness, it compels states to recognize ensoulment by God as the basis of human equality. If that's indeed how the Constitution is understood, then, strangely enough, by denying the possibility of ensoulment at conception, Roe violates the non-establishment of religion clause of the First Amendment.

That would, I think, comprise a knockdown argument against Roe were it not necessarily prefaced by the word if. The linking of the Constitution to the unalienable rights passage in the Declaration is one way to understand the Constitution - perhaps the likeliest way. But it's not the only way. The Constitution can also be understood as merely a set of practical guidelines - a means to procure civil order rather than a reflection of higher ideals. Or it can be understood as a compromise between pragmatic and idealistic ends. As your understanding of the Constitution's intention changes, so necessarily must your method of interpretation.

Conclusion

So what's the status of Roe v. Wade in 2002? It may be that the single thread by which the decision hangs is the legal principle of stare decisis - that is, the respect current courts owe prior courts' rulings. In other words, unless incontrovertible evidence can be marshaled that a past case was decided erroneously, the earlier decision must stand. The defense of Roe on these grounds was made eloquently by the Supreme Court's majority ruling in the 1992 case of Planned Parenthood v. Casey. It merits quoting at length:

Overruling Roe's central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases, and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.

The principle of stare decisis, in short, upholds Roe because no knockdown argument against the decision has emerged. There have been telling arguments against Roe - as I've endeavored to show. But no knockdown argument. Moreover, it's fair to speculate that no such knockdown argument can emerge since it would have to establish the full personhood of a pre-sentient fetus. This differentiates the issue of abortion from the issue of slaveholding - an instance in which stare decisis was unable to uphold the legality of an institution - since the full personhood of human beings of African ancestry became, in time, undeniable.

What, then, is the status of the abortion debate? Certainly, the practice of abortion, even at the stage prior to the sentience of the fetus, is an offense against the concept of a rights-endowing God - a concept on which the republic was founded. Perhaps it's even an offense against God Himself, an offense for which its practitioners may answer in a divinely just hereafter. But it is an offense against no person - at least insofar as the term 'person' can be consistently defined. For that reason, the Roe decision, on the basis of stare decisis, must stand.

© Mark Goldblatt 2002

Mark Goldblatt is a journalist who has written opinion columns for many of the major US papers. He teaches the Bible in the History of Ideas at Fashion Institute of Technology of the State University of New York. His latest book is the novel Africa Speaks.

(This article first appeared in Philosophy Now Issue 36.)

© 2004 Philosophy Now. All rights reserved.