I have been asked by a reader to comment on the recent spate of anti-abortion legislation in Southern states. I am reluctant to do so because, as appalling as I find the anti-abortion legislation, I think the abortion issue is more complicated than either side is willing to admit. The nation is at an impasse, some half century after Roe v. Wade, the issues surrounding the beginnings of life and what to do about it no closer to resolution than they were then.
First of all, if you consult only the philosophical issue of when life begins, the anti-abortionists have the more plausible argument. They say that life begins at conception and that there is no need to change that fact by referring to the circumstances of conception so as to permit abortion in the cases of rape or incest. The baby, if it is a human being, should not be punished for the crimes of one of those who engendered it. And it is a human being in that it is already an actual completed entity, with the chromosomes that can make it develop into a total human being after its gestation in the womb, and there is no clear line to differentiate it from any more completed or independant creature, in that a baby, even if born, is dependant for its viability in the world on the nurturing of others, whether or not that is by the mother who gave birth to the child. Before conception, a baby is only a statistical possibility that a particular sperm will meet up with a particular ovum. Afterwards, it is a thing, however low are its chances of successfully implanting itself on the wall of the uterus. Well, at one time child mortality rates were very high, but that didn’t mean parents could kill off their children rather than mourn the young ones who did die. Pro abortionists do not counter this argument but prefer to act as if the foetus is, on the one hand, the equivalent of a hangnail, and on the other, a problem of such seriousness that only a mother can decide what to do about her pregnancy. Well, if the issue is that problematic or troubling, then the foetus has some standing after all and we would have to come to terms with what its “rights” are. Feminists therefore shift the argument to the consequences of unwanted births: whether the baby will be properly nurtured, neglecting the fact that most pregnancies, historically, were unwanted or regarded as inevitable, and the impact of the fact that women are the ones who carry babies, while the job of men is out of the way biologically as soon as they finish their orgasms, however much social customs and morality may motivate them to remain attached to their offspring. Those consequentialist arguments may appeal to my own pragmatism based morality, but not to the minds and hearts of Southern legislators.
Second of all, Roe v. Wade was a poorly crafted decision, based on circumstances that no longer hold. It was arrived at as an extension of the doctrine of the right of privacy as that was applied in Griswold v. Connecticut which found that the state could not intrude into the bedroom, and so people were allowed to use condoms that they had bought at the corner pharmacy, where such transactions, at the time, were conducted in privacy, the packages of condoms kept under the counter and dispensed to the customer who, in hushed tones, asked for them. Well, abortions do not take place at home but in public facilities which do come under state regulation, though it is stretching the state’s powers to make it so difficult for abortion clinics to function that they are forced to close up shop. By Roe v. Wade standards, a legitimate abortion could take place only when a women used one of those over the counter aborticides available in drug stores and used at home. Moreover, Roe v. Wade said that an abortion could be performed after a woman had consulted with her doctor. That seems to have passed by the wayside, doctors no longer having much say in the matter, even if anything at all, doing the job at the request of the mother alone. Ruth Bader Ginsburg had it right when she said that abortion should be safeguarded not as a matter of privacy but as a right protected by the Fourteenth Amendment. It is the right of women not to be deprived of their freedom without due process of law, though I am not sure that would not mean women (and men) would then be allowed to commit suicide, even though it is good public policy to allow policemen to interfere with people about to throw themselves off of bridges.
Third of all, we are witnessing an exercise in regional politics. Southern legislatures are controlled by people from their rural regions who are much taken with evangelical religious arguments. People in Atlanta and St. Louis should not proceed too far outside the city limits. The rural people will have their way, as reactionary political opinions have had their way in the South since before the Civil War, the hatred of slaves and ex-slaves replaced in recent years by the hatred of illegal immigrants and those who favor abortion, the politicians in those states always looking for people to hate rather than ways to reconcile differences though, truth be old, I do not notice that pro-abortion people have reached out to hold meetings with anti-abortion people in the hopes of reaching some accomodation so that abortions might be, as Bill Clinton hoped, “legal, safe, and rare”.
The resulting present impasse means that the reversal of Roe v. Wade by the Supreme Court would mean that there would be few abortions below the Mason Dixon Line but that the right of abortion would be ever more zealously protected in northern states, as is happening in New York state, where the protection of abortion rights is being moved into the State Constitution. But it is not a good idea to have the nation split in half over a central moral issue, just as it was not a good idea to have the Union divided between slave states and free states. Traffic laws can differ from state to state, but not something so important to the social conscience as abortion, much less having it settled by states with a relatively small portion of the nation’s population. Letting the South wag the dog is what has happened, with brief exceptions, ever since the Civil War ended. How long will we let the South dictate the national morality?
So far I have been reviewing the bidding. Let us try to come up with a fresh point that will drive the debate forward. Most of the time, the abortion debate concerns whether a mother is protected by her putative equality with men to do what she pleases with her body. She is a citizen just as men are citizens and so what her body needs is protected by law. The same argument is made when African Americans claim that the Thirteenth, Fourteenth and Fifteenth Amendments make them equals to white people and so can sue for equal protection of the laws. This argument has been so successful that LGBTQ people can sue for their equality even though gay rights were never contemplated to be such by the Founding Fathers or the authors of the post-Civil War amendments. But let us shift from the mother’s search for equality to the question of exactly what the foetus is, and there we come up with no answer because a foetus is sui generis. There is no other thing like it in the world, just another foetus, whether inside a zebra-fish’s pouch or in the uterus of a pig. It is a biological phenomenon, this thing, and so not easily characterized as having a soul at one time but not at another. So what are the rights of foetuses if you have nothing to compare them to in nature or in the civilized world which assigns classifications to any number of people based on race, gender, age or any other of the demographic categories we all take for granted as legitimate ways to sort people so that well educated seventeen year olds are not allowed to vote while illiterate eighteen year olds are?
One solution to the problem is provided by “The Book of the Covenant”, which appears in Exodus, and is a set of compensation laws for people killed and property taken in the raids conducted on one another’s camps by one tribe or clan of the nomadic Israelite sheepherders. A woman who miscarried as a result of one of these raids requires compensation. That suggests that the foetus is of some value to the clan. Now that is not directly applicable to the current situation because we do not want to treat a foetus as a partial human and so subject to compensation if it is closer to term than if it is in its early stages. What we can learn, however, is that it is possible to set down conditions so that it is less likely that a raid will take place because compensation will be required. So we can think of the mechanisms that will make it possible to achieve the aforementioned goal of making abortion “legal, safe and rare”, though that will mean anti-abortionists will have to give up their categorical claim that it is always wrong in exchange for the practical result of reducing abortions considerably, down to the point of insignificance, which might seem worth their while, if they are in it to save lives rather than be righteous against the unrighteous, and women will have to admit that abortion is not a harmless endeavor but has a cost which does not have to be paid if there are enough social circumstances present to make an abortion unnecessary. Here we resort to the usual liberal bag of tricks: better sex education, the easy provision of condoms and other contraceptives, more engagement in school so that teenage girls have something other to do with their time than get pregnant. That liberal bag of tricks is not ineffective. Look at abortion statistics. In 1996, there were 1.36 million abortions in the united States. That number has steadily fallen so that in 2016 there were 892,000 abortions and in 2017 there were 879,000 abortions. Later ages for marriage and lower poverty rates would have something to do with that.
And so abortions can continue to go down and we will all look back at the abortion era as a sad time when there were conflicting goods eventually abolished as technology improved and people learned to manage their lives better. That would be preferable to either side winning the abortion debate by getting the Supreme Court to do its mumbo jumbo “reasoning” in their favor.