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Facing the Unborn

Sat, 01 Aug 2015 00:00:00 -0400

An ultrasound video of an unborn child sucking its thumb makes a case against abortion that reason hardly need supplement. But a zygote photographed just after an in vitro conception is not so easily recognizable as a human being or person. Pro-lifers often assume that this difficulty has been overcome by modern science. Since the 1820s, when evidence of ovular fertilization first became known, it has been clear that the life of a human being runs from conception to death.

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Reforming the Pro-Choice Market

Fri, 05 Nov 2010 00:01:00 -0400

Some pro-life leaders have advocated repeal of “Obamacare,” because it requires the public in various ways to fund abortion. Although I agree with their assessment of the law, I disagree with their proposed remedy. The pro-life cause would be far better served to keep the current law, provided that it be amended to include something like the original addition proposed by Congressman Stupak that fully excluded elective abortion from all state plans, except as an individual rider, consciously chosen by the insured person.

My disagreement stems not just from the fact that the healthcare law includes various pro-life provisions, such as new help for pregnant women, which may make them less likely to choose abortion. I think that even if these good aspects of the legislation are outweighed by its bad aspects, that is, if the net effect of the legislation at the moment is to advance abortion, it should not be repealed.

In order to explain my position, let’s step back a moment to remember the situation prior to the new law, when health care was, except for the poor, much more market driven. The market was not favorable to life.

While Medicaid for the poor excluded elective abortion under the Hyde Amendment, many or most health plans automatically included fully elective abortion, giving the insured person no choice in the matter and very few effective ways to protest. Simply repealing the new legislation would presumably restore that market situation.

Faced with the federalization of healthcare, both sides could claim sincerely that they wanted the new plan to be neutral on abortion, i.e., they wanted the new law to preserve the status quo ante rather than to advance their own pro-life or pro-choice preferences. But each was referring to a different side of the prior status quo.

Pro-lifers wanted the old rules for healthcare for the poor (the Hyde Amendment) to apply to everyone. Pro-choicers wanted the widespread inclusion of elective abortion in market-based plans to carry over unchanged into the new federal plan. In other words, there was no way the new law could have been fully neutral on abortion from everyone’s point of view. And in fact, as finally enacted, the plan is not neutral, but is rather a compromise with gains and losses on both sides, though with (in my opinion) a net effect in the pro-choice direction.

However, if the healthcare law were amended to exclude all elective abortion”that is, if the Hyde Amendment were universalized and made permanent”pro-lifers would have the best of all worlds and pro-choicers would face their worst nightmare. The rules against funding elective abortion that were once applicable only to the poor would now become applicable to all, taking abortion totally out of the mainstream of healthcare and making it something no one would have covered who had not previously and deliberately chosen an abortion rider.

Would such a glorified Hyde amendment be signed by President Obama? Maybe yes, if it were presented as the only way the necessary funding for his healthcare plan as a whole could ever be approved by the pro-life dominated House of Representatives.

So, dear friends of life, let’s not urge repeal a law which gives us a tremendous chance to promote the cause of life. Let’s urge instead that it be properly amended to exclude abortion.

Richard Stith is professor of law at Valparaiso University School of Law and the author most recently of The Legal Validation of Sexual Relationships (Wm. S. Hein & Co.). His last article for First Things was Her Choice, Her Problem .

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Her Choice, Her Problem

Sat, 01 Aug 2009 00:00:00 -0400

This summer, President Obama proclaimed again that we “need fathers to recognize that responsibility doesn’t end at conception.” In a sense, of course, he is absolutely right. But the problem is that, in another sense, he is completely wrong: Male responsibility really does end at conception. Men these days can choose only sex, not fatherhood; mothers alone determine whether children shall be allowed to exist. Legalized abortion was supposed to grant enormous freedom to women, but it has had the perverse result of freeing men and trapping women.

The likelihood of this cultural development was foreseen by the radical feminist Catherine MacKinnon, one of the critical voices responding to Roe v. Wade’ s extension of the right of privacy to cover abortion. In an essay called “Privacy vs. Equality,” MacKinnon argued that “abortion’s proponents and opponents share a tacit assumption that women do significantly control sex. Feminist investigations suggest otherwise. Sexual intercourse . . . cannot simply be presumed coequally determined.” Indeed, she added, “men control sexuality,” and “ Roe does not contradict this.”

“Abortion facilitates women’s heterosexual availability,” MacKinnon pointed out: “In other words, under conditions of gender inequality [abortion] does not liberate women; it frees male sexual aggression. The availability of abortion removes the one remaining legitimized reason that women have had for refusing sex besides the headache.” Perhaps that is why, she observed, “the Playboy Foundation has supported abortion rights from day one.” In the end, MacKinnon pronounced, Roe ’s “right to privacy looks like an injury got up as a gift,” for “virtually every ounce of control that women won” from legalized abortion “has gone directly into the hands of men.”

At the time, MacKinnon’s work may have seemed little more than a curiosity on the left, but, as the years have passed, some of the essay’s claims have proved prescient. I recall a law student who would admit when pressed, “I’m in favor of keeping abortion legal because I don’t like using condoms.” Since abortion could now come between conception and birth, he saw no benefit to missing any portion of sexual pleasure, even though it imposed a risk of surgery on his partner. He may have assumed a rational partner would choose abortion either freely or under pressure. With less deliberate callousness, under the influence of passion almost any male may think quite simply: “At least there’s a way out if the unlikely happens and pregnancy occurs.”

I’ve also met a clever female undergraduate student living with her boyfriend, who thought she had solved this problem. When I asked whether she was for or against abortion, she answered: “I’m pro-choice, but you can bet I tell him I’m pro-life!” She reasoned that, in light of her warning, he would be careful not to fool around in ways that could lead to pregnancy.

Such a lie may not provide protection for every young woman in her situation, however. If she says she is pro-life so that he thinks abortion is not an option for her, he might decide to keep her from getting pregnant by leaving her for someone more open to abortion, a woman who doesn’t insist on his using a condom. That is, the presence in the sexual marketplace of women willing to have an abortion reduces an individual woman’s bargaining power. As a result, in order not to lose her guy, she may be pressured into doing precisely what she doesn’t want to do: have unprotected sex, then an unwanted pregnancy, then the abortion she had all along been trying to avoid. Even though her abortion in this case is not literally forced, it would be, in an important sense, imposed on her. And, far from alleviating her overall situation, it would merely return her to the same sexual pressures, made worse by a new assurance to her boyfriend that she is willing to take care of a pregnancy.

Perhaps it was difficult to foresee such cultural trends back in 1973, when Roe v. Wade was handed down by the Supreme Court. But they simply track the inner logic of choice and the market. Economists have shown that such scenarios have in fact become common since abortion was legalized in the United States. Easy access to abortion has increased the expectation and frequency of sexual intercourse (including unprotected intercourse) among young people, making it more difficult for a woman to deny herself to a man without losing him, thus increasing pregnancies and sexually transmitted infections. (See, for instance, Jonathan Klick and Thomas Stratmann’s 2003 study, “The Effect of Abortion Legalization on Sexual Behavior,” in the Journal of Legal Studies .)

Furthermore, if a woman attempts to choose birth instead of abortion, she may well find the child’s father pushing the other way. Her boyfriend’s fear of fatherhood would once have been focused on intercourse itself and could have led him either to be careful to avoid conception or else (overcoming that fear) to commit himself beforehand to equal responsibility for the child. His fear now will turn to getting her to choose abortion. One investigator, Vincent M. Rue, reported in the Medical Science Monitor , that 64 percent of American women who abort feel pressed to do so by others. Another, Frederica Mathewes-Green in her book Real Choices , discovered that American women almost always abort to satisfy the desires of people who do not want to care for their children.

Catherine MacKinnon seemed to suggest that abortion leads to greater male sexual aggression only “under conditions of gender inequality,” which implies more equality for women could reduce the male exploitation caused by Roe v. Wade . That makes sense in theory. To the degree that individual women are economically, educationally, and in other ways empowered, they should be more able to stand up to male pressures to have unwanted sex (and to have unwanted abortions in order to give the guys still more unwanted sex).

But counteracting the negative forces of sexual competition is difficult. Even if women were universally to agree to refuse sex without condoms, for example, enforcement of this agreement in such an intimate sphere would be nearly impossible. Women would always be tempted to increase their individual sexual competitiveness by consenting to sex without a condom, while relying on abortion as a backup, thus causing female solidarity and power to collapse. Only women strong enough to forgo boyfriends altogether might be likely in the end to resist.

Furthermore, if MacKinnon is right, wherever women have not yet overcome gender inequality, involuntary sex and involuntary abortion will tend to be more frequent, precisely as a result of abortion’s availability. To the degree that a culture is built on machismo, for example, the legalization of abortion will make women relatively worse off by giving men another tool to manipulate women as sex objects. Again, to the degree that an economy employs mainly men, leaving women dependent on economic handouts, women will be much less likely to resist male pressures to make use of abortion. Wherever men make women’s decisions for them, the option of abortion will be a man’s choice, regardless of how the law may label it.

Human-rights activists in developing nations must learn to consider this fact. In those countries, only a thin, elite layer of truly independent and powerful women may be relatively unharmed by the availability of abortion, because only for them is the abortion option more nearly their own. Proclaiming a right to abortion in developing countries may mean just adopting the viewpoint of these well-to-do professionals”which ought to be no surprise. Those elites are often the only voices for women heard in the transnational political arenas where abortion is debated.

Moreover, the availability of abortion may make all societies less open to empowering women in other ways. MacKinnon may well be right that stronger women would more often resist male pressures to risk pregnancies and have abortions. But, perhaps paradoxically, the option of abortion actually makes sympathy and solidarity”and thus women’s empowerment”less likely.

When birth was the result of passion and bad luck, some people could sympathize with a young woman who was going to need help with her baby, though the stigma of bastardry was genuine. If money or a larger place to live were going to be necessary for her to stay in school, a sense of solidarity would likely lead friends and family to offer assistance. The father would feel strong pressure as well, for he was as responsible as she for the child. He might offer to get a second job or otherwise shoulder some of the burdens of parenting.

But once continuing a pregnancy to birth is the result neither of passion nor of luck but only of her deliberate choice, sympathy weakens. After all, the pregnant woman can avoid all her problems by choosing abortion. So if she decides to take those difficulties on, she must think she can handle them.

Birth itself may be followed by blame rather than support. Since only the mother has the right to decide whether to let the child be born, the father may easily conclude that she bears sole responsibility for caring for the child. The baby is her fault.

It may also seem unfair to him that she could escape motherhood (by being legally allowed to prevent birth), while he is denied any way to escape fatherhood (by still being legally required to pay child support). If consenting to sex does not entail consenting to act as a mother, why should it entail consenting to act as a father? Paternity support in this context appears unjust, and he may resist compliance with his legal duties.

Prior to the legalization of abortion in the United States, it was commonly understood that a man should offer a woman marriage in case of pregnancy, and many did so. But with the legalization of abortion, men started to feel that they were not responsible for the birth of children and consequently not under any obligation to marry. In gaining the option of abortion, many women have lost the option of marriage. Liberal abortion laws have thus considerably increased the number of families headed by a single mother, resulting in what some economists call the “feminization of poverty.”

The mother is even worse off if, during pregnancy, tests show that the child will have a disability: Doctors often press for abortion, in order to be sure that she does not later blame and sue them for the costs of raising her child. Some have suggested that health-care plans should provide no postbirth coverage for a handicapped child whose mother refuses a paid abortion. If she does not abort, after all, she will be causally responsible for the costs and the alleged burdens that the child brings. Even her friends and neighbors may make her feel ashamed for not choosing to abort her child.

Employers may likewise react negatively to maternal needs where abortion has been available. If they (or the state) pay for abortions, they may feel less obligated to shape labor practices to the needs of mothers. If maternity causes problems with work routines or job schedules, the employer may well consider these to be private or personal problems that female employees brought on themselves. The availability of abortion makes women’s claims for better working conditions lose a measure of legitimacy.

Throughout human history, children have been the consequence of natural sexual relations between men and women. Both sexes knew they were equally responsible for their children, and society had somehow to facilitate their upbringing. Even the advent of birth control did not fundamentally change this dynamic, for all forms of contraception are fallible.

Elective abortion changes everything. Abortion absolutely prevents the birth of a child. A woman’s choice for or against abortion breaks the causal link between conception and birth. It matters little what or who caused conception or whether the male insisted on having unprotected intercourse. It is she alone who finally decides whether the child comes into the world. She is the responsible one. For the first time in history, the father and the doctor and the health-insurance actuary can point a finger at her as the person who allowed an inconvenient human being to come into the world.

The deepest tragedy may be that there is no way out. By granting to the pregnant woman an unrestrained choice over who will be born, we make her alone to blame for how she exercises her power. Nothing can alter the solidarity-shattering impact of the abortion option.

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Stith: Arguing with Pro-Choicers

Sat, 04 Nov 2006 00:00:00 -0500

Why do many pro-choice people find our arguments against early abortion not just unconvincing but absurd? Consider, for example, the ridicule that the defense of human embryos sometimes draws. In order to have any hope of winning the debate, defenders of unborn life must understand how an argument that seems wholly reasonable to us can strike our opponents as a bizarre (therefore religious) doctrine wholly unconnected to the real world.

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Nominal Babies

Mon, 01 Feb 1999 00:00:00 -0500

In its famous 1973 decision Roe v. Wade , the United States Supreme Court mandated elective abortion up to viability, and abortion for broadly defined “health” reasons (i.e., virtually elective abortion) thereafter. That opinion contains a deep contradiction that can be understood as a conflict between what I will call “nominalism” and “realism.” The Court asserts in effect that the unborn child has no real nature, that what it is is solely a matter of conventions concerning names ( nomina in Latin). Yet the moment of birth is assumed to mark an essential difference, a real (not merely conventional) transition to a living entity, human in nature.

In the past twenty-five years, this “birth wall” has been largely dismantled or, to use appropriately the more fashionable expression, “deconstructed.” That is, the purely nominal character of the birth difference has become increasingly accepted by those on both sides of the abortion debate. My purpose here is to elucidate this shift and to show the possibilities and perils of our emerging legal world. Roe ‘s nominalism can be seen most simply in Justice Harry Blackmun’s well-known assertion that the Justices “need not resolve the difficult question of when life begins” in order to justify the Court’s requirement that legislators treat the fetus at most as “the potentiality of human life” right up to the moment of birth. There is no need, he says, to answer this question because the diversity of answers given by others shows the question to be unanswerable, at least at present. But surely the law may take controvertible stands, and it may seek to minimize the possible harm of error even where it has no access to truth. Blackmun’s insistence that what we call the fetus does not matter seems to imply a much more radical agnosticism: the assumption that the names we give to pre-born human beings are wholly conventional, that one can in principle never say that abortion really takes a human life.

Blackmun’s justificatory history of permissive abortion practices bears out this appearance of deep-seated nominalism. Let me explain. In order to decide whether or not practices of past ages can be justified today, we ought to look not only at the practices themselves (e.g., practices permitting abortion), but also at the beliefs about values and facts upon which those practices were based. If those underlying values now seem to us quite mistaken, the practices arising from those beliefs hold no authority for us today. Similarly, we cannot honestly invoke the authority of past scientific conclusions if we now see that the data upon which the conclusions were based were incomplete or mistaken. If we seek to know what is real, we cannot rest content with labels. We have to inquire into reasons.

Yet throughout Justice Blackmun’s lengthy surveys of past practices allowing abortion, he never once asks whether or not the beliefs upon which those practices were based are in fact ones that he considers admirable or accurate. (By contrast, by the way, he occasionally does try to refute past reasons for restricting abortion”such as to protect the mother’s life.)

For example, Blackmun refers often to “quickening” as a popular dividing line, without once mentioning that modern medical knowledge shows this “event,” as he calls it, to be an illusion. The overall impression Blackmun gives is that whether and when abortion is allowed is an open choice, with most cultures voting for abortion.

At the same time, Blackmun suggests (without exactly stating) that birth makes a real difference. Such a claim is implicit in his refusal to find that constitutional personhood or actual human life begins “before live birth.” In any event, Justice John Paul Stevens, writing thirteen years later in support of Roe v. Wade , makes clear the necessity of what I have here called “the birth wall.” Concurring in Thornburgh v. American College of Obstetricians and Gynecologists (1986), he insists that “there is a fundamental and well-recognized difference between a fetus and a human being; indeed, if there is not such a difference, the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures.” In the next sentence, Stevens makes clear that, in his view, even “the nine-month-gestated, fully sentient fetus on the eve of birth” is not yet a human being.

Stevens gives no explanation for his claim that a fundamental change at birth is required in order to justify legal abortion. But one basis for his view is surely the principle of human equality that underlies both our ethics and our law. There must be a real and deep difference between human and nonhuman entities in order to give force and limit to the normative demand for equal protection for all humans. If any and all entities could be defined at will into or out of humanity, human equality would have no practical significance. Insofar as human equality does make practical demands on us, it follows that we are politically committed to ontological realism. Stevens has to claim that a fetus and an infant are different kinds of beings in order to avoid recognizing an equal right to life before and after birth. Only if expulsion from the womb gives the fetus a human nature for the first time is late-term abortion easily justified.

We are thus bequeathed a curious antinomy by Roe . We are to presume that the unborn child or fetus has no inner nature of its own. What it is called is a matter of convention or preference, for it is not “really” anything at all. At the same time, we must assume that birth is a bright line, a moment when (in reality not merely in convention), by leaving the uterus, the fetus becomes undeniably one of us. In other words, we are to be skeptical nominalists prior to birth, but credulous realists about birth itself.

It should be obvious, even to Stevens, that the notion of a clear, fundamental difference at birth is not, shall we say, viable. The many postmodern nominalists among us (especially among academics) can hardly be expected to accept the mere assertion that a bright line between human and nonhuman exists at birth. If definition in principle is social construction, Stevens’ definition of humanity will inevitably be deconstructed by those who have the political will to do so”i.e., those interested in protecting the unborn or in justifying infanticide (of which more below).

But even realists must in the end reject the birth-wall thesis, because it claims that what something is depends upon where it is. It makes the fundamental nature of the perinatal entity depend solely upon location. But location cannot determine a being’s inner nature, though location may well affect how that being functions for others and thus affect what they name it. That is, the jurisprudence of Blackmun and Stevens abjures the search for the nature of the fetus prior to birth, where a realist would search it out, while relying on a form of naive realism about birth itself, where the fetus/ infant difference cannot be more than nominal. Blackmun and Stevens would have us believe the child born prematurely at seven months to be a human being, while its more developed cousin in the womb overdue at nine and a half months is still a creature without a fundamentally human nature. Without an appeal to some supernatural change such as the insertion of a soul at first breath, an appeal which neither judge makes nor constitutionally could make, such a belief is quite simply absurd, beyond the limits of even the most extreme credulity.

The absurdity of the birth wall has not caused it to fall entirely. The Supreme Court in fact reaffirmed Roe v. Wade in 1992 in Planned Parenthood v. Casey, but it did so without claiming that birth really makes a difference, explicitly avoiding any claim that Roe was rightly decided in the first place. Instead, Casey based the right to abort in large measure on stare decisis , binding precedent, which is in Casey a doctrine of court vanity and positivism. Past decisions cannot be overturned just because they were based on fallacious reasoning. Fidelity to the Constitution is not by itself a sufficient reason to right old wrongs. Only on the basis of new information not available to the earlier Court can erroneous holdings be overruled. Except in such circumstances, to correct past mistakes would undermine the Supreme Court’s prestige, Casey argued, particularly so on matters of great controversy. The abortion fiat stands, but only as such. Not willing to deny (or even explicitly to consider) that millions of actual human lives are being lost under Roe, Casey says simply that the Court has spoken, causa finita est .

Referring to “the interest of the State in the protection of ‘potential life,’“ also characterized as “a legitimate interest in promoting the life or potential life of the unborn,” the outcome-determinative opinion of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter declared in sum:

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​Facing the Unborn

Reforming the Pro-Choice Market

Her Choice, Her Problem

Stith: Arguing with Pro-Choicers

Nominal Babies

Facing the Unborn