Legalization of abortion: arguments and implications

DEFENDING a WOMEN'S RIGHT TO CHOOSE ABORTION

Abortion, or the elective termination of pregnancy likely predates recorded human history, being practiced within virtually every society throughout the world.(6)

In 1973, the United States Supreme Court very specifically decided that the United

States Constitution affords a fundamental right to individual privacy that absolutely prohibits governmental interference with a women's autonomous right to seek medical termination of unwanted pregnancy, except where deemed necessary to safeguard the woman's health paternalistically.(4) Ever since the legal issue was decided by the Supreme Court in 1973, a so-called pro-life lobby, spearheaded by religious opposition to any type of abortion has campaigned for and funded the proposition of legislation and policies designed to undermine the rights recognized and established under constitutional law in the United States.

Ultimately, the United States Constitution requires that the appropriate guidelines for defining legally permissible abortion rights and relative concern for the rights and feelings of the fetus be found in objective concepts of morality and medical science, rather than in religious teachings.

Background and History:

In the American Colonies, abortion was allowed until the point known under British common law as quickening when the fetus could be felt moving inside the womb. Prior to the nineteenth century, abortions were performed completely without regulation in the United States because the title "Medical Doctor" could be claimed at will, by anybody. During the eighteenth century, approximately half the American states enacted laws prohibiting abortions to some degree, and by the turn of the nineteenth century, the recently formed American Medical Association had succeeded in obtaining laws prohibiting abortions performed by anyone other than a Medical

Doctor licensed by the AMA. In many respects, this amounted to the utter inability of women to control their own bodies, since properly accredited medical schools did not yet admit female students.(6)

Some state statutes banned all abortions outright until 1973 when the United

States Supreme court decided Roe v. Wade, finding that such statutes were unconstitutionally restrictive of a woman's privacy rights. Under The Roe decision, states may not interfere with a woman's right to obtain a medical abortion during the first trimester of pregnancy, but they may impose certain restrictions based on considerations of the woman's health during the second trimester. Third trimester abortions may be prohibited by statute except where medically necessary for the safety of the mother.(4)

Since 1973, a politically powerful pro-life lobby funded by the religious Right has instigated a steady stream of statutes designed to undermine Roe, most recently in 2000, when the Supreme Court decided in Stenberg v. Carhart that a Nebraska statute banning so-called "partial birth abortion" procedures violated Roe. In 2003, President

George W. Bush signed the federal Partial Birth Abortion Act, that is virtually identical to the Nebraska law struck down by the Supreme Court in 2000.(3)

At the present time, federal judges in Nebraska, San Francisco and New York have prevented the law from taking effect by granting injunctive relief while entertaining legal arguments in three separate federal lawsuits ongoing as of this writing. At issue is the over breadth of a law which would effectively ban abortions across the country as early as thirteen weeks, because it prohibits standard medical procedures necessary in the vast majority of abortions performed during the second trimester, notwithstanding Roe.(8)

The Argument Against Abortion:

The only modern argument against abortion rests on the religious definition of human "life" as something that begins at conception. According to this particular view, God bestows life, and therefore a human soul upon an individual at the instant that a single human sperm cell fertilizes a human ovum. The religious position defines all abortion as the murder of a human being. The most extreme proponents of this point-of-view advocate murdering doctors who perform abortions because they consider health care providers working in abortion clinics to be mass murderers of innocent human beings.

According to the statement issued on the thirtieth anniversary of Roe v. Wade by the United States Conference of Catholic Bishops:

Roe v. Wade has left a trail of broken hearts...we will continue to help the broken-hearted...These are the converted hearts that will at last bring an end to abortion...Roe v. Wade cannot stand as the law of this great nation, a nation founded on the self-evident truth that all people are created with an inalienable right to life. We are committed, no matter how long it may take, no matter the sacrifices required, to bringing about a reversal of this tragic Supreme Court decision. We will speak out on behalf of the sanctity of each and every human life wherever it is threatened, from conception to natural death, and we urge all people of good will to do likewise. For, as Pope John Paul II reminds us, "it is impossible to further the common good without acknowledging and defending the right to life, upon which all the other inalienable rights of individuals are founded and from which they develop... Roe v. Wade must be reversed."(10)

Legal Analysis:

The separation of church and state is one of the most fundamental of all philosophical concepts underlying the structure of the United States government and its relationship to American citizens. It is formally expressed in the Second

Amendment to the United States Constitution, according to which: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." (4)

As far as the issue of abortion under the laws of the United States, the Second

Amendment specifically prohibits incorporating any definitions or assumptions (such as of the definition of life) that have their origin in religious teachings or beliefs. This is precisely what is so offensive about the religious Right in general, and President

George W. Bush's attempts to interject his Christian morals into federal legislation, in particular. Many Americans subscribe to different religious beliefs about where human life begins, (7) and they have a constitutional right not to be subjected to laws reflecting Christian religious views. The Partial Birth Abortion Act of 2003 would erode women's rights to make autonomous choices granted by the Constitution and specifically defined with respect to abortion by the Supreme Court in 1973.

This is not to suggest the absence of any moral issues in establishing morally appropriate guidelines for when a pregnancy is too advanced to allow elective termination. Even the most strident supporters of the pro-choice position recognize that a woman's right to privacy and autonomy are not absolute in this regard. There are fundamental developments between the first month of human gestation and the ninth month and it is, in principle, simply a medical determination of where in between those two extremes, a fetus first becomes remotely recognizable as a living being capable of having rights for the state to protect.(9)

The point is that determination of the stage of human gestation where a fetus is entitled to humane consideration and to protection by the United States government under law must be exclusive matters of science and objective moral concern (such as for the prevention of suffering by a sentient), and may not reflect religious beliefs or philosophy.

Scientific Analysis:

Sexual reproduction -- whereby each of two progenitors contributes half the genetic makeup of the next generation of organism -- is the most common method of reproduction shared throughout the animal kingdom. Some animals manage with asexual forms of reproduction, but usually a male organism fertilizes biologically inert egg cells which begin replicating until one cell evolves into a complex organism comprising trillions of individual cells.(9)

In any case, a recently fertilized human embryo is conceptually indistinguishable in complexity, or any more "alive" than are the individual component sperm and ovum immediately prior to conception. Each represents the potential for becoming half a human life, if and only if myriad conditions are properly met, but its potential for life is zero, by itself.(5) As many as three quarters of all pregnancies are spontaneously aborted when the fertilized egg is expelled too soon to be detected as a pregnancy.(9) fertilized zygote is merely capable of beginning a long, complicated process that (sometimes) culminates in a human being. In the early embryonic stage, the developing tissues have absolutely no ability to perceive stimuli in any medium, much less to continue developing into a living, sensing human being, on their own. Modern scientific understanding of exactly how (and precisely when) certain cells migrate to form a proto brain imposes absolute limits on the earliest possible stage of gestation where a functioning "life," whether human or otherwise, exists.(5)

The earliest brainwaves in developing fetuses only begin toward the beginning of the third trimester, and prior to the end of the second trimester, no brainwaves and no perception of stimuli is biologically possible because the requisite neural architecture remains unformed.(9)

Moral Analysis:

The irony of the pro-life position is that it is anti-human and profoundly inhumane in principle. It ignores any consideration of the quality of life of unwanted children raised by reluctant, disinterested, unqualified, and sometimes openly resentful parents. The Catholic Church opposes abortion at any time after fertilization of the egg, even where it is medically necessary to save a woman's life or where pregnancy results from a brutal rape.

Meanwhile, this completely medieval preoccupation with beliefs about what life is obscures any genuine moral concepts that matter in an objective sense. In many respects, the supposed sanctity of anything possessing even the remote potential for developing into a human being is completely at odds with an utter lack of concern for genuine moral issues relating to bettering human life and respecting the rights of non- human animals to be free from unnecessary pain and suffering at our hands.

To most caring, thinking people capable of empathy for the suffering of other living things, it is sufficient that (even) animals feel excruciating physical pain and emotions that are apparently quite similar to human sensations, especially in the case of many "higher" animals. A chimpanzee shares ninety-seven percent of our genetic make-up, yet those who would defend the "rights" of a human embryo that shares more in common with a tadpole remain unconcerned with any suffering the chimpanzee might experience. This is the same principle that allowed early Christian explorers to justify enslaving (and sometimes exterminating) other human beings whose cultures represented different religious beliefs and practices.

Conversely, nobody espousing the pro-choice point-of-view advocates abortion after the point of gestation where, according to medical science, a fetus is capable of perceiving pain and discomfort, except in relatively rare cases where it is necessary by virtue of medically exigent circumstances of the mother.

Judith Jarvis Thompson's essay In Defense of Abortion proposes a hypothetical dilemma (or thought experiment) whereby the reader is to imagine waking up one morning with his circulatory system interconnected to that of an unconscious famous violinist. She explains that the Society of Music Lovers has kidnapped the reader to save the life of the violinist whose fatal illness is only curable by sharing the circulatory system of a suitable candidate for nine months, after which they may both be safely disconnected. The violinist was completely unaware of the situation and remains unconscious, law enforcement authorities prosecute the involved members of the Society of Music Lovers, and the reader still has a civil recourse to pursue a claim for damages from the organization. Thompson asks what if any) obligation the reader has to allow the violinist to remain connected, knowing that disconnecting the (innocent) violinist will kill him.(1)

The purpose of the hypothetical is to illustrate that in a perfectly analogous situation to the relationship between the unwanted (early term) fetus and the mother who wishes to terminate her unwanted pregnancy, no moral imperative requires her to sacrifice nine months of her life to benefit (even) another completely innocent human being. Like the fetus, the violinist in Thompson's hypothetical is completely dependant for his life on the decision of the "host," and both fetus and violinist are equally innocent of creating or causing the situation in which they are involved. The point is simply that justification for imposing hardship on the mother (or, in the case of the violinist, the "host") against her will is equally absent in both cases.

Conclusion:

Objective morality requires that we avoid causing unnecessary pain or suffering to any sentient creature capable of suffering in the way that we recognize by virtue of our own experiences. It is an issue of sensitivity and benevolent concern that requires no reference to any supposed "higher being," nor does it hinge upon the characterization of a living consciousness as necessarily being human in order to qualify for a moral concern for its subjective degree of perceived comfort or pain, or emotional trauma.

Indeed, one of the dangers of deriving one's respect for life exclusively from religious teachings of the supposed sanctity of human life as utterly distinguishable from other life living creatures is the resulting insensitivity it breeds toward the latter.

A respect for life whose foundation lies solely in a distinction between human and non-human life leads to unreasonable and morally unjustifiable imposition of hardship on women burdened with unwanted pregnancy. At the same time, it reflects a lack of sensitivity toward the very real suffering of animals slaughtered without regard for the minimization of pain for food and even mere sport. History shows that at its most extreme, this preoccupation with a religious basis for valuing life also allows for similar disregard and devaluing of unequivocally human lives, as well.