The lines of battle in the controversy over abortion have long been clearly marked. The Supreme Court’s 1973 “Roe v. Wade” decision has generated pro-life and pro-choice factions, and the controversy seems no closer to resolution, reconciliation, or an outright win today than 30 years ago.
Each position has a defining formula. For the pro-life side, the union of human sperm and egg creates an inviolable human cell that, given the necessary conditions, will eventuate in a human person. From conception on, we are dealing with an entity that should be given a basic human right to life. Abortion is therefore morally wrong and should be made legally wrong. For the pro-choice side, a woman has an inviolable right to say whether she will participate in bringing a fertilized egg to term. This is her body. That is her choice and no one else’s. Abortion is therefore morally permissible and should be legally available.
Both sides usually qualify their “pure” formula, even though these concessions do not often appear in the public debate.
Many Pro-lifers will make a concession to save the life of the mother even when that causes the death of the fetus. They will allow the removal of an ectopic pregnancy - where the embryo is lodged in a Fallopian tube and if allowed to continue its growth would both die itself and kill the mother. The surgical abortion to save the mother is permitted even though the surgery, of necessity, leads to the death of the would-be child. The same would hold in the removal of a pregnant but cancerous uterus. In Roman Catholic theology this is known as the principle of “double effect.” One effect (saving the mother) is intended, the other effect (the loss of the embryo) is not intended but entailed by the other. Some Catholics also embrace the principle of proportionalism, which says that faced with the choice of two evils, one may choose the lesser. Some pro-lifers make exceptions for pregnancy caused by rape or incest or where the child to be born will suffer certain death after birth, as in the case of an anencephalic fetus (one without a brain).
Pro-choicers usually supplement the Woman’s Right argument with a different kind of argument that claims that the fetus is not identifiable as a human person and abortion is therefore not the killing of a human. So the woman’s right to self-determination is not circumscribed by her being pregnant. She does not have a child in her womb as the pro-lifer would claim, but a fetus - the difference in term signifying an important difference in status. If she wants that fetus to be her “child” and to treat it as such, that is her choice, but it is not legally compelling for her to do so. But since a soon-to-be-born fetus is so similar in human development to a just-born baby, many pro-choicers recognize that the claim of the fetus to right-to-life protection becomes increasingly strong as pregnancy moves into the third trimester and they would disallow abortion in that third trimester except when the mother’s life is at risk or the fetus has shown compelling signs of malformation.
These two schools of thought, in their “pure” forms, may be called the Genetic School and the Woman’s Right School. A third school of thought might be called the Developmental School.
The Developmental School recognizes that all life grows in stages and that while the lines of demarcation between these stages may be fuzzy , we do make such distinctions. A growing child has a presumed right to life from birth on, a right that can only be abridged under dire circumstances such as an irreversible coma. But the child is granted other rights in stages - the right to drive, vote, drink liquor, smoke, leave school, marry, and so on. In parallel argument, the Developmental School would argue that a fetus goes through stages in its claim to be treated as having the status of a human person.
Some would make the human rights claim for the fertilized egg, not at conception, but only after nidation in the uterus. Others after the development of the “primitive streak” that marks bilateral differentiation, others at the level of the embryo taking a human shape (“delayed animation”), and some when EEG readings indicate the beginning of brain activity, at about 24 weeks.
If some delay in recognizing the human rights of the fertilized egg was accepted (which some Roman Catholic thinkers argue for), then abortifacients and early D & C and suction operations to empty the womb would not be seen as murdering the unborn. We would have a concession at the early end of the spectrum of pregnancy.
Such a delay is supported by a cultural consideration. Studies indicate that numerous fertilized eggs are lost naturally. In the nature of the case, this is hard to assess, but estimates run from 10 per cent to 40 per cent. Nature itself is an abortionist, sometimes aborting a defective fetus and sometime aborting a healthy fetus. Culturally, we do not recognize such early abortants as having human rights. We do not give them names, we do not give them formal burial. My mother had eight children. She wanted children, she loved children, but she also had two miscarriages along the way. Whatever the disappointment that that gave her, she did not speak of having had ten children. The miscarried fetuses were not named or laid in a family burial plot. When critics of abortion say that so many million babies are being murdered each year by abortion, they do not go on to mourn the millions being lost by the natural disaster of natural abortion. This cultural consideration would suggest that it makes sense to delay any claim for the human rights of a fertilized egg, an embryo, or a fetus in its early stages.
At the other end of the pregnancy spectrum, in the final trimester, concession is also in order. A woman may rightly claim not to have to offer her body as host to a fertilized egg if she is against continuing the pregnancy. But she would admit that once a child is born, even immediately on its appearance from the womb, it is no longer her right to dictate the rights of the baby. Society accepts the claim to life of that baby. The question then arises, How far back into the uterine life of the child should that claim be made? How is a just-born child different from a soon-to-be-born child? Once viability has been reached, the fetus could exist outside of the mother’s womb. It makes sense, therefore, that third trimester abortions should be disallowed, except when the continued pregnancy would be a threat to the health of the mother, or when new evidence indicates that the child would be severely malformed. Thus so-called “partial birth” abortions would be interdicted, with the exceptive clauses just mentioned. In other words, a woman may abort her pregnancy, but she must do so at an earlier stage when the claim of the fetus to a right to life is still as unformed as is the fetus itself. One cultural consideration supporting the concession at the end of pregnancy has become more forceful: It is the burgeoning ability of medicine both to picture the new life in the womb and to intervene surgically or otherwise to deal with pre-natal problems. Viability has been pushed back earlier.
Both sides traditionally reject these concessions at both ends of the spectrum for fear that concession creep will set in and the other side will press for further advance of their position. Short of outright change of mind by either side, the battle will rage on. Even on the proposal just developed, the battle would still go on as each side tried to define the line of demarcation in the second trimester (or just before or just after), when the fetus should be given “right to life” status.
As we seek to gain conceptual leverage on this agonizing decision, some other concepts are worth looking at. Take the notion of “ectopicity.” The word comes from Latin, ek = out of, and topos = place. An ectopic pregnancy is one that is biologically out of place, as in a Fallopian tube, where it cannot survive. Even Roman Catholic doctrine permits the end of such a pregnancy. But may we not extend the concept of ectopicity to cover other “out-of-place” cases? Humans experience an Upstairs of choice and a Downstairs of biological determinism. We overrule biology all the time - replacing hearts and other organs, correcting sight, sharing blood, artificially inseminating, replacing limbs, and soon altering genes. Biology does not wholly dictate destiny. So what if an unintended pregnancy is out-of-place psychologically, medically, economically, or morally? May it not be ended on the strength of its ectopicity? If a man rapes a woman and inseminates her in doing so, does she not have the right to remove the consequences of his invading sperm as much as if he had put a bullet into her. At the least, it should be left to her to say whether she wants to live with that consequence.
One other position to mention is that of the Consequentialists. Since no theoretical position provides a definitive answer, the Consequentialists argue that public conscience should be developed in terms of how the major positions play out in terms of public good. Such an approach would not eliminate debate, but alter the focus. The Pope, for example, though an essentialist, adds a consequentialist argument when he argues that abortion promotes a “culture of death.” Legislators often vote on consequentialist grounds when they keep an ear to popular opinion, via polls. Majority opinion in the United States seems to indicate that abortion is regrettable but should be permissible. Pro-life gives maximum benefit to incipient life, but shortchanges the woman’s rights; pro-choice gives maximum benefit to the woman, but minimizes the claim of nascent life.
Robert Goldstein has argued that we should discuss the issue in terms of the dyad of mother with potential child. The dilemma of fetal vs. maternal rights should be recast to make the dyad one point of reference. If the mother affirms, the dyad exists. If the mother rejects, the dyad is dissolved. In other words, a child is a cooperative project not the automatic result of sperm meets egg. This would throw light on how it is that one woman can pat her pregnant belly and rejoice in her “baby” to be born, while another woman views her pregnancy as an unacceptable invasion. Biology pre-conditions the dyad, but cooperation makes it a working reality.
One thing that both sides can work on is to reduce the number of unwanted pregnancies.
I have tried to lay out the arguments pro and con with fairness, but I will close with stating my own view. I find the developmental approach the most promising and consistent with our understanding of human nature. It recognizes the essentialness of the DNA basis of life, but also the woman’s necessary cooperation, and the changing significance of the advancing stages of development.
John Hoad, Ph.D.
NOTES: For the “primitive streak” as a marker, see Norman Ford (a Salesian priest) in “When did I begin?” “Delayed animation” on the doctrine of “hylomorphism,” is argued by Joseph Donceel, S.J. (see Theological Studies 31 (1970). The EEG demarcation at 24 weeks is presented by Gregg Easterbrook in “The New Republic,” January, 2000. Jose Delgado in “Physical Control of the Mind” contends that brain synapses must be in place before integrated experience would be possible such as would lead one to postulate a “mind.” Pope John Paul II’s views are in his encyclical, “The Gospel of Life." Daniel Maguire, a Catholic, has argued forcibly for a right to abortion. See: “Reflections of a Catholic Theologian on Visiting an Abortion Clinic.” Other Catholics attempt to refute these Catholic concessions by arguing that there must be some primal directive force in the zygote which inevitably leads to a human person and that that primal directionality is worthy of protection as “human.” But it is generally recognized that a squirrel eating an acorn is not doing something as significant to the oak population as a human cutting down an oak tree.