In Defense of Abortion

Right now I am reading two excellent books on the subject of abortion. The first is Susan Wicklund's This Common Secret: My Journey as an Abortion Doctor, the memoir of a doctor who has provided women with first-trimester abortions and other reproductive health services for over twenty years.

Wicklund came from a traditional, upper-Midwestern, rural background and was, judging by her family's history, unlikely to do anything so bold as go to medical school, much less, as a professional doctor, provide women with abortions. But when as a young woman she became pregnant, under circumstances that made it impossible to try to have and bring up a child, the abortion she had instead was an experience made needlessly traumatic by medical professionals who hadn't the vaguest idea of how to treat their patient as a worried, fearful fellow human being. Wicklund decided she needed to do something to keep that sort of thing from happening to other women in the future. She became an abortion doctor.

This was in the 1970s, in the wake of the Roe v. Wade Supreme Court decision that made state laws banning abortions unconstitutional. When Wicklund found her medical school loath to train her in abortion procedures, it was but a foretaste of how hostile the communities in which she would eventually practice, medium-sized cities scattered across the North Central United States, would be to women's newfound reproductive rights. Her story is as much about how much danger she was perennially placed in from menacing, if supposedly well-meaning, "pro-life" protesters — and occasionally from angry perpetrators of paternal incest — as it is about how she allayed the fears and anxieties of her patients, none of whose fetuses she would abort unless patient and doctor were both clear that it was what the patient really, truly wanted.

As I read through the episodes of Wicklund's professional and personal life — the latter being circumscribed by the need to cope with the ceaseless perils of the former — I am frankly ashamed of myself for having failed to recognize for so long just how evil are the intentions and actions of those who would kill abortion doctors (!) in order to prevent the supposed "murders" of "unborn children."

But could "pro-life" forces be somehow correct when they say embryos and fetuses are human persons whose lives are, inexplicably, more sacrosanct than that of an abortion doctor like Wicklund? Wicklund's book is not the place to explore such issues coolly and philosophically. For that, one needs to turn to ...



The second book I am presently reading, which is as detached and intellectual as Wicklund's book is personal and emotional. It is A Brief, Liberal, Catholic Defense of Abortion, by two (Catholic, male) professors of philosophy at Seattle University, Daniel A. Dombrowski and Robert J. Deltete.

This book examines the history of Catholic thought about abortion ... which in many ways is the history of Western thought on the subject, since two of the Christian West's philosophical pioneers, St. Augustine and St. Thomas Aquinas, wrote before the Reformation.

Prior to the 17th century and the rise of enlightened science, Western Christians looked to their forebears — Augustine, Aquinas, the other Church Fathers — for guidance on thorny issues such as when and whether abortions are anything but sinful, and when the new life in a woman's womb acquires the status of a human person.

As Dombrowski and Deltete set forth, neither Augustine nor Aquinas based their rejection of abortion on the notion that a just-begun embryo, or even an early-stage fetus, has yet been infused with a God-given soul. Ensoulment, they reasoned, happens later, in the final stages of pregnancy, when the fetus becomes what we would today call sentient. Before that, Aquinas said, the fetus has but a vegetative, nutrition-seeking soul, and later a sensing, questing, animal soul ... but not yet an "intellectual soul" of the sort conferred and cherished by God.

Aquinas' view echoed that of the much earlier St. Augustine. Augustine's notions on the "succession of souls" were not as elaborate or consistent as those of Aquinas, yet they nonetheless led to the same conclusion: that the soul whose extinguishing constitutes murder does not arrive until the later stages of pregnancy.


But, never mind. Augustine found another way to show that abortion was sin. Though he sidestepped the "ontological" argument, that the God-conferred soul exists from the time of conception on, he pretty much originated the "perversity" argument: that abortion blocks procreation and thus perverts the true purpose of sex and marriage.

In fact, it was St. Augustine's belief — one that hounds many of us to this day — that anything that admits the slightest glimmer of pleasure into the marital dealings of wives and husbands was an occasion for "lustful cruelty":

Married persons who have intercourse only (sola) for the wish to beget children do not sin, whereas those who mix pleasure with sex, even if sex with one's spouse, commit sin. A remarkable view! It must be granted that this sin is venial (i.e., venia or pardonable), but the mere fact that it is a sin at all should alert us to how negative Augustine's view of sex is. Even worse than intending pleasure in sex is to try to prevent pregnancy, say through an evil appliance (opere malo), or, we might add, through the "rhythm method." For Augustine those who use such contraceptive devices retain no vestige of true matrimony, which is synonymous with, not accidentally connected to, propagation. These people sometimes (aliquando) go so far as to have abortions in their lustful cruelty (libidinosa crudelitas). Since Augustine also accuses those who have merely used contraceptive devices of being cruel, we can be sure that it is not cruelty to a human person inside the womb that he is worried about. It is Augustine's own clever pen that makes this clear when he rephrases his accusation as cruel lust (libido crudelis). Lust itself (or even the desire for sexual pleasure) is cruel, whether or not a fetus is aborted. (p. 21)

Sexual mores have changed radically since Augustine's time, yet the Catholic Church still condemns using contraceptive devices. (The "rhythm method" is somehow excluded from latter-day condemnation, though by Augustine's own logic it, too, ought not to be permitted.) And the Church continues to call abortion sin.


However, since the 17th century the Church's continuing condemnation of abortion has moved prudently away from emphasizing the perversity argument, Dombrowski and Deltete show. Nowadays, the argument most heard as to why abortion is bad is an ontological one — the sort of argument Augustine and Aquinas expressly shunned.

When scientists first got hold of optical devices in the 1600s — the microscope, etc. — which let them peer at aborted embryos and fetuses with a high degree of magnification, they found human contours and organs begin to develop very early on. They quite naturally jumped to the conclusion that perhaps Augustine and Aquinas had been wrong: perhaps "hominization," the juncture at which a fetus becomes a human being, occurs at or precious near the very moment when sperm meets egg.

Hence, maybe all abortions kill a human person.

But wait. Today, as Dombrowski and Deltete point out, our much more advanced science of embryology gives us reason to believe that Augustine and Aquinas were correct after all. Though tiny embryos quickly develop recognizable organs, including brains, the cells in the forming brain don't actually start to communicate with one another until the 25th through 32nd weeks of pregnancy.

Accordingly, what Messrs. D and D refer to as "sentiency" — sentience, self-awareness, higher cognitive function — are entirely missing in younger fetuses. And it is to the onset of sentiency that the authors say we may ascribe the advent of the "intelligent," or truly human, soul. That this is the time at which the fetus can first hope to survive outside the womb is further indication that abortions in the first or even the second trimester of pregnancy are not murder.

Is the Bible Anti-Abortion?

As I detailed in Garry Wills on Abortion Rights, the recent book Head and Heart: American Christianities by liberal Catholic historian Garry Wills argues, in one important section, against the "pro-life" stance of today's Evangelical Protestants and conservative Catholics and Jews. After asserting that there is no authoritative text in the Bible in which God specifically forbids abortions, Wills makes a case that an abortion in the first two trimesters of pregnancy does not amount to the murder of a human person.

Absent definite scriptural guidance, we must fall back on philosophical reasoning about "natural law," Wills says. Given what we now know about fetal development, we can be certain a fetus possesses no high, cognitive brain function until neural synapses form in the brain, at a point twenty-five to thirty-two weeks into pregnancy. Before that juncture — which coincides with the onset of the ability of the fetus to survive outside the womb — the fetus is manifestly not "capable of thought, or of speech, of recognizing itself as a person, of assuming the responsibilities of a person" (p. 528).

Hence, a fetus during the first six months of pregnancy does not have the "intellectual soul" which Thomas Aquinas felt, writes Wills, "is directly created by God 'at the end of human generation' (in fine generationis humanae)" (p. 526).

In modern language, "personhood" as Aquinas defined it doesn't begin until late in pregnancy. Prior to the emergence of personhood, the fetus does not have a soul "directly created by God."


It's a convincing argument — one that I imagine (based on an endnote citation) comes from a book by Daniel A. Dombrowski and Robert Deltete called A Brief, Liberal, Catholic Defense of Abortion, which I intend to read.

But the argument depends on there not being a specific proscription of abortion in the Bible, which is a topic Wills expounds in what is perhaps his lengthiest endnote. I'm going to replicate that endnote here:

Though Jewish tradition did not draw any teaching on abortion from Scripture, modern Christians who believe in what they call the Old Testament try to dredge up something on the subject. Here are some of the desperate expedients.

Psalm 139.13-16 [actually, the verses cited are 13-15]:

For thou hast possessed my reins;
thou hast covered me in my mother's womb.
I will praise thee; for I am fearfully and wonderfully made:
marvellous are thy works;
and that my soul knoweth right well.
My substance was not hid from thee,
when I was made in secret,
and curiously wrought in the lowest parts of the earth.

This says only that God foreknows everything, every stage of a thing's coming into existence — even its primordial patterning in the lowest parts of the earth (whatever that means). That this is not a statement of when a person actually comes into being is seen from Jeremiah 1.5: "before I formed thee in the belly I knew thee."

Exodus 21.22: "If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine."

The penalty is not for murder (which calls for the death penalty), but a mere fine to the husband for the possibility of losing an heir. This says nothing of the present status of the fetus, only of the future profit to the male. The woman is not treated as having any stake in the matter. Only the man.

Genesis 38.24-26:

[Wills does not actually give the quote, which is: "And it came to pass about three months after, that it was told Judah, saying, Tamar thy daughter in law hath played the harlot; and also, behold, she is with child by whoredom. And Judah said, Bring her forth, and let her be burnt. When she was brought forth, she sent to her father in law, saying, By the man, whose these are, am I with child: and she said, Discern, I pray thee, whose are these, the signet, and bracelets, and staff. And Judah acknowledged them, and said, She hath been more righteous than I; because that I gave her not to Shelah my son. And he knew her again no more."]

[Wills paraphrases:] Tamar is brought to be executed, but she is pregnant and is spared. But she is not spared because she is pregnant — that was known when she was condemned to death. She is spared because she produces proof that the father is the head of the tribe, Jonah.

[Then Wills adds:] Actually there is one passage in the Jewish texts that shows God himself inducing an abortion, Numbers 5.11-26 (the Lord is speaking):

[Again, Wills omits the actual text, which (including verse 27) is:]

[And the LORD spake unto Moses, saying,
Speak unto the children of Israel, and say unto them, If any man's wife go aside, and commit a trespass against him,
And a man lie with her carnally, and it be hid from the eyes of her husband, and be kept close, and she be defiled, and there be no witness against her, neither she be taken with the manner;
And the spirit of jealousy come upon him, and he be jealous of his wife, and she be defiled: or if the spirit of jealousy come upon him, and he be jealous of his wife, and she be not defiled:
Then shall the man bring his wife unto the priest, and he shall bring her offering for her, the tenth part of an ephah of barley meal; he shall pour no oil upon it, nor put frankincense thereon; for it is an offering of jealousy, an offering of memorial, bringing iniquity to remembrance.
And the priest shall bring her near, and set her before the LORD:
And the priest shall take holy water in an earthen vessel; and of the dust that is in the floor of the tabernacle the priest shall take, and put it into the water:
And the priest shall set the woman before the LORD, and uncover the woman's head, and put the offering of memorial in her hands, which is the jealousy offering: and the priest shall have in his hand the bitter water that causeth the curse:
And the priest shall charge her by an oath, and say unto the woman, If no man have lain with thee, and if thou hast not gone aside to uncleanness with another instead of thy husband, be thou free from this bitter water that causeth the curse:
But if thou hast gone aside to another instead of thy husband, and if thou be defiled, and some man have lain with thee beside thine husband:
Then the priest shall charge the woman with an oath of cursing, and the priest shall say unto the woman, The LORD make thee a curse and an oath among thy people, when the LORD doth make thy thigh to rot, and thy belly to swell;
And this water that causeth the curse shall go into thy bowels, to make thy belly to swell, and thy thigh to rot: And the woman shall say, Amen, amen.
And the priest shall write these curses in a book, and he shall blot them out with the bitter water:
And he shall cause the woman to drink the bitter water that causeth the curse: and the water that causeth the curse shall enter into her, and become bitter.
Then the priest shall take the jealousy offering out of the woman's hand, and shall wave the offering before the LORD, and offer it upon the altar:
And the priest shall take an handful of the offering, even the memorial thereof, and burn it upon the altar, and afterward shall cause the woman to drink the water.
And when he hath made her to drink the water, then it shall come to pass, that, if she be defiled, and have done trespass against her husband, that the water that causeth the curse shall enter into her, and become bitter, and her belly shall swell, and her thigh shall rot: and the woman shall be a curse among her people.]

[Wills does provide this interpretation:]

If a woman is suspected of infidelity, her husband must bring her before a priest, who will make her drink "bitter water" into which he has mingled cursed (23). "If she be defiled, and have done trespass against her husband, that the water that causeth the curse shall enter into her, and become bitter, and her belly shall swell, and her thigh shall rot: and the woman shall be a curse among her people" (27).

I don't know whether to call this last example "God himself inducing an abortion," so much as God calling for the priest to induce one, using "bitter water" as an abortifacient. But never mind. It does seem to show that God in that period of history and among those people ordered an illicit fetus of a "defiled" woman to be aborted, does it not?

Garry Wills on Abortion Rights

Garry Wills' Head and Heart: American Christianities is a new book about the many strands of (mostly Protestant) religion in American history. Wills is a liberal Catholic historian with many popular books to his credit, including Why I Am a Catholic.

Head and Heart posits that there are two main strands of American Protestantism: Evangelical and Enlightened. Though at times they have overlapped and cross-pollinated, the former is characterized by a personal, passionate piety, and the latter by a reasoned, philosophical approach.

The two strands didn't really start to separate until the 18th century, during the pre-Revolutionary and then the Revolutionary eras. Going all the way back to the early 1600s, the New England colonies, especially Massachusetts, were home mostly to Puritans, who were Congregationalists officially and Calvinists theologically. Though many of their beliefs and practices sowed the seeds of Evangelical outlooks yet to come, the Puritans were by and large also highly educated and committed to an intellectual approach to religion.

So were the mainly Anglican (Church of England) denizens of Virginia, another leader among the original thirteen colonies. Though these Virginian forerunners of today's American Episcopalians had a different religious outlook from that of the Puritans, they too combined personal piety with reasoned discourse.

The Virginia Anglicans were, however, notably more "liberal" in their outlook than the original Puritans, who imagined that only certain human individuals were predestined to be saved — or "regenerated" — and thus find a heavenly reward. The Puritans feared that even the regenerate among them could be deceived by Satan's wiles and consequently fall away, so they spent a lot of time worrying about the Quakers, Baptists, and supposed "witches" who were their close neighbors and might be agents of the devil.

The Puritans' corporate piety was thus highly normative; dissenters were dealt with harshly. Though there was officially what we would today call "separation of church and state" in the original Puritan colonies, the good offices of local government more often than not functioned to allay the Puritans' religious fears. Unorthodox fellow Puritans and others who had radically different ideas were often silence, exiled, or executed.


Fast forward to the early 21st century. We now have Evangelical Christians pillorying not just atheists and "secular humanists" but also liberal Christians, whom Wills sees as the heirs of the Enlightenment Protestants of the America of the mid-19th century: the Transcendentalists, as represented in Wills' book mainly by Ralph Waldo Emerson.

The Transcendentalists equated their version of Protestant Christianity with a sort of "nature mysticism." Their God was a wonder-of-it-all Creator who did not need to reveal himself through Scripture, or to work miracles. To Emerson, the traditional, Biblical idea of "miracle" was "not one with the blowing clover and the falling rain," and so was a false notion. "Emerson had claimed that all the universe is the only real miracle ... " (p. 264).

Nor was the God of Emerson triune. The Transcendentalists jettisoned the doctrine of the Trinity — as did their intellectual forebears among the Founding Fathers: Jefferson, Madison, and John Adams, among others. The great minds who conceived America were mainly Deists and Unitarians, no matter their nominal (Protestant) denominations.

Those two terms, Deist and Unitarian, were originally synonyms, says Wills. They both referred to a Protestant outlook that was wedded to the notion that our One God has to be uniquely divine ... and so it is wrong to say that He is Three Persons, Father, Son, and Holy Ghost.

Jefferson, Madison, Adams, and contemporary Unitarian/Deist children of the Enlightenment were responsible for that touchstone of religious freedom in America, the portion of the First Amendment that bars the government from "establishing" any one particular religion or denomination as supreme over all others, or from interfering with citizens' "free exercise" of personal conscience in choosing which religion, if any, to follow.

Jefferson in particular, Wills shows, felt that if the government carefully avoided channeling the religiosity of its citizenry, citizens would naturally gravitate to the sort of Unitarian Deism he espoused. But Jefferson was wrong about that. There had already been in America a "Great Awakening," which reversed some of the liberalizing trends of the early 1700s, and a "Second Great Awakening" would occur in the wake of the Emersonian liberalizing of religion in the 1800s. There were Culture Wars even then.


The Culture Wars today are, Wills says, about a lot of things: school prayer, stem cell research, homosexual marriage, sex education, Darwinism, pornography, and on and on. But the centerpiece of the Evangelicals' fight against — well, against the rest of the culture — concerns abortion.

A woman's right to choose an abortion during the first two trimesters of pregnancy was established by the Supreme Court in 1973, in the case of Roe v. Wade. The Court held that the states' erstwhile laws prohibiting abortion were unconstitutional because they violated a woman's "right to privacy," a right said to be latent in the language of the U.S. Constitution as duly amended.

Ever since the Roe decision made abortion legal, Evangelical Christians and many Catholics — together, they form the heart of the "pro-life" movement — have sought to roll Roe back, and to make it possible for the states to once again ban most or all abortions.

Wills shows that the political success of our current president, George W. Bush, was engineered by a close adviser, Karl Rove, by means of uniting Evangelical Protestants with pro-life Catholics, and also equally pro-life Jews, and getting them to vote for the candidate most likely, as president, to appoint Supreme Court justices who would reverse Roe.

As such, says Wills opposition to abortion rights has become "the ecumenical issue" that today suffuses American politics with one particular style of religion, the Evangelical style, writ large to include Catholics and Jews (see pp. 523ff.) Except, Wills demonstrates, abortion is not really a "religious" issue at all.

Wills' argument to this effect is a deft one — and one with which I mostly concur — and I would like to spend some time dissecting it in this post and posts to come.


One of the main points Wills makes in his argument in favor of legal abortion rights is that there is no authoritative passage either in Jewish Scripture (the Old Testament) or in the New Testament that conveys God's opposition to abortion. Though one of the Ten Commandments forbids killing, or the doing of murder, there is no purely scriptural reason to assume that abortion qualifies, in God's eyes, as murder.

After making this argument about Scripture, which I will go further into in a future post, Wills goes on to demonstrate that St. Augustine, Thomas Aquinas, and the Christian Church in general have traditionally addressed abortion as a matter of "natural law," not revealed theology ... and so we today, to settle our disputes about the morality and legality of abortion, "must turn to reason and science, the realm of Enlightened religion" (p. 527).

Because the question is one of natural law, it is a "misconception" to say "that this is a religious issue, that the pro-life advocates are acting out of religious conviction" (p. 526; italics in the original).

Once Wills establishes that the question of abortion must be addressed as a matter of reason rather than scriptural revelation, he does just that. First, he shows it to be a misnomer to call the anti-abortion position "pro-life," since there is no principled way to show that the "life" of an embryo is any more sacred than the "life" of growing human hair or fingernails, semen, egg cells ... or, tellingly, the vast majority of fertilized eggs/human embryos! Most embryos naturally fail to get embedded in a womb wall, or, if they do, result in early miscarriages that are perceived to be no more significant than heavy menstrual flow:

Are these millions of embryos that fail to be embedded [in the wall of a womb] human persons? Then "intelligent design" [the doctrine about God's role in evolution supported by many pro-life Evangelicals] aborts far more persons than nay human abortioners can. God is responsible for this silent holocaust. (p. 528)

Then Wills addresses what he says the true question ought to be: not when human "life" begins, but when during the gestation period the human person emerges:

Is it when it is capable of thought, or of speech, of recognizing itself as a person, of assuming the responsibilities of a person? Is it when it has a functioning brain? Thomas Aquinas said that the fetus did not become a person until God infused the intellectual soul. A functioning brain is not present in the fetus until the end of the sixth month at the earliest (what Roe called the beginning of the third trimester). Only then can the cerebral cortex process information from the various senses. (p. 528)

Wills cites widespread medical opinion that it is only at about the point in gestation at which the fetus becomes viable outside the womb — roughly, the start of the third trimester of pregnancy — that the already abundant nerve cells present in the fetus' cerebral cortex become linked together through the formation of synapses: the gaps between nerve cells that impulses travel across during higher brain functioning.

Before that juncture, Wills argues, the life of the fetus — though the fetus does respond to external stimuli — is merely "vegetative," in the sense that Terri Schiavo was in a "persistent vegetative state" at the time she was taken off life support after fifteen years of never waking up.

Aquinas, intimates Wills, would have held that a soul in such a state was one of the "nutritive (vegetable)" variety, and not even of a "sensing (animal)" sort — much less an "intellectual soul" of the type God manifestly cherishes (see p. 526).

Even plants react to stimuli such as sunlight, etc. Animals have their own well-developed sensory lives. But only human persons have the full-fledged "intellectual soul" that was identified in Christian thought by Thomas Aquinas. And human fetuses, prior to the establishing of full brain function and the consequent onset of fetal viability outside the womb, presumably lack an "intellectual soul."

Hence, says Wills, abortion prior to the third trimester does not equal the killing of a human person.

The Future of Abortion

Associate Supreme Court Justice Anthony Kennedy

"Justice Kennedy: The Highly Influential Man in the Middle" appeared on Sunday, May 13, 2007, in The Washington Post and piqued once again my interest in the question of whether the Supreme Court is going to — or ought to — overturn its 1973 Roe. v. Wade decision legalizing abortion on demand. (I last took up abortion in any depth in
Roe, Casey, and Originalism in July 2005.)

Justice Anthony Kennedy, the Post article says, was the key "man in the middle" on several cases that were heard during this 2006-2007 term of the court and which were decided by 5-to-4 votes split otherwise along liberal-conservative ideological lines.

The '06-'07 court under still-new Chief Justice John G. Roberts Jr. has achieved an impressive number of unanimous or near-unanimous decisions. It has also decided a fair number of close 5-4 cases that had no clear ideological cast — with Kennedy casting the swing vote in most of them. But in the several 5-4 cases involving a sharp ideological divide, Kennedy has cast the decisive fifth vote in all of them.

This makes Kennedy's vote the sine qua non of close, ideologically based decisions which the view of recently retired justice Sandra Day O'Connor used to be. O'Connor's replacement, Justice Samuel A. Alito Jr., typically sides with the conservative Chief Justice Roberts and Associate Justices Antonin Scalia and Clarence Thomas. Associate Justices Ruth Bader Ginsburg, John Paul Stevens, David Souter, and Stephen Breyer usually line up on the liberal side. In many key cases, whichever cadre can earn Kennedy's support wins.

It came as a surprise to many court watchers that it was the conservative bloc which won Kennedy's support in the recent Gonzales v. Carhart decision, in a case concerning the late-term abortion procedure reviled by critics as "partial-birth" abortion. Kennedy himself wrote the April 2007 decision upholding the 2003 Partial-Birth Abortion Ban Act of the U. S. Congress. (The full text of the decision, along with its concurrences and dissents, can be read here.)

When the Carhart decision was handed down in April, the Post reported in this article:

"The government may use its voice and its regulatory authority to show its profound respect for the life within the woman," Justice Anthony M. Kennedy wrote. He said the ban on the controversial method for ending a midterm pregnancy is valid because other abortion procedures are still available.

Kennedy had (per the first-mentioned Post article) spoken some perhaps contrasting words from the high bench in 1992, in handing down the decision he himself had jointly written with O'Connor and Souter in another key abortion case, Planned Parenthood v. Casey. On that day, as a decision basically upholding Roe was being issued, he said that "at the heart of liberty is the right to define one's own concept of existing, of meaning, of the universe and of the mystery of life."


And there we have the nut of the abortion issue which continues to divide America: the woman's right to assert her "own concept" of moral right and wrong versus society's "profound respect for the life within the woman."

If Mork from Ork or E.T. the Extraterrestrial asked you to give an accounting of the proper, objective way to resolve the tension between those two ethical claims among Earth's populace, would you be able to comply? I don't know that I would.

I do believe the question needs to be debated again in the political arena, not the judicial one. That's one of the reasons why I hope Roe gets overturned. If that happens, the laws of the 50 states concerning (generally outlawing) abortion would once again come into force. These laws are presently held in abeyance under Roe, at least to the extent that they prohibit abortion outright in certain stages of pregnancy.


Those laws that make few or no exceptions to a state's general ban on abortion would surely become the focus of intense political efforts to change the law, given that polls show most Americans wanting abortions to be mainly illegal but with broad exceptions to protect a woman's life and health and to permit abortions in the case of rape or incest.

There might also be efforts to pass federal laws establishing abortion rights legislatively at a national level, and/or a movement to make abortions either unconstitutional or constituti0nally guaranteed, via an amendment to the U.S. Constitution.

So there would surely be a massive debate, during which a whole generation of citizens who weren't even alive when Roe was decided would have to confront the issue directly, stripped of any obfuscating questions of whether the Supreme Court's now-vacated pronouncements in favor of abortion rights were properly decided or not.


Another reason why I favor such a back-to-square-one debate is that we know more about how a fetus develops in the womb than we did in 1973. Some (admittedly disputed) scientific evidence now suggests that the fetus is able to feel pain in the first trimester, for instance. We didn't have much of a basis for validating such a claim of early fetal sentience in 1973. Modern diagnostic and imaging procedures now offer us such a basis.

Although we knew prior to 1973 that the heart of the fetus begins to beat in the fourth week after conception, at a juncture when a prospective mother may not yet know she is pregnant, that fact was still relatively new to the general public consciousness.

The human brain begins to form in the same early week of pregnancy and is formed enough to produce brain waves by six weeks — just two weeks after brain formation begins — which means that most abortions destroy a human brain that is in some sense functioning. We apparently weren't aware of just how early the fetal brain starts to function back in 1973. (I am drawing on "Science and Abortion," a religiously oriented pro-life tract, for some of this information.)

10mm human embryo, about five weeks old

By about five weeks into pregnancy, an embryo (the fetus-to-be is still called an embryo at this stage) is only 10mm in size (see this Wikipedia article), yet it already has recognizable eyes, ears, organs, and appendages. Images such as the one to the right were groundbreaking at the time of the Roe decision. (This one is from an ectopic pregnancy, outside the uterus.) Images of this type are commonplace today.

Obstetric ultrasonography — ultrasound — is routinely used during pregnancy these days. Real-time ultrasound technology in which moving fetal images may be viewed by the patient as well as the doctor or technician as they are being gathered was not, as far as I can tell, widely available in 1973. (See this article on the history of real-time scanners. See this video at YouTube.com for a scan of 13-week-old fetus.)

If nothing else, the pervasiveness of this kind of imaging today has made the general public aware that a recognizably human life form is present in the womb well before the time of pregnancy at which many abortions are performed. That awareness is new since 1973.


All in all, more of us know more about pregnancy and fetal development today than people did in 1973, and most of that new knowledge comes from a revised medical science which makes it harder, not easier, to support abortion-on-demand morally during the second trimester of pregnancy.

Roe prohibited states outright from outlawing first-trimester abortions, based in part on scientific evidence that is no longer generally accepted. Subsequent Supreme Court decisions, though mainly upholding Roe, have tried to accomodate more up-to-date science concerning early fetal development in various ways, with varying degrees of success. Still, it's clear to me that if they had it to do all over again, the justices would need to approach at least the first-trimester abortion issue in a wholly different way.

And if first-trimester abortions could be legally proscribed by the states in view of present understandings of early fetal development, what would that say about second- and third-trimester abortions? States would presumably have even fewer constitutional hurdles to jump in outlawing most of them.

So I think our society needs to wipe the constitutional slate clean and hash out such issues in the political/legislative arena. That's why I'll be happy if Roe bites the dust. And if Justice Kennedy casts the deciding vote against Roe sometime in the not-too-distant future, I won't be at all surprised.

Of the Self and the Soul

This was originally to be the first in a series of posts whose original intent was to try to figure out when, during its development in a human womb, a sperm-fertilized egg cell that becomes an embryo, then takes on the status of a fetus, acquires a soul. This effort has evolved quite a bit since I began it initially. My initial intent was to dispute the idea that ensouled human life begins at the moment of biological conception. Later, I wanted to do more than that. I wanted to see when human life qua human life does begin.

By "human life" I meant (since I believe in a God-given soul) life after the "arrival" of the soul in the new human-to-be, developing in the womb of its mother. Biased against the assertion that all abortion is tantamount to murder (though this is what my church, the Roman Catholic Church, teaches) I wanted to discover some intellectually and spiritually acceptable argument against that belief. I wanted to show that abortion isn't murder until some time well after pregnancy begins.


I started out simply trying to show how science can furnish arguments to the effect that the instant at which fertilization of the egg from the mother takes place by the action of a sperm from the father is very likely not the moment when the soul "comes to earth" and joins the body (see Considering Embryos). As I proceeded, however, I became interested in figuring out when exactly the soul does come, and why that particular moment or juncture in fetal development is the "right" one to construe as the beginning of human life, as opposed to all other possible candidate moments.

My initial thought in this regard was to identify as the transition point when the soul actually comes into the picture the "dawn of sentience," the time at which the embryo or fetus first becomes conscious. I wrote a great deal of verbiage in support of this thesis, which I posted to this blog and have now withdrawn.

As I tried to develop my argument, I did some (further) reading on the subject of what consciousness or sentience actually is. In so doing, I came to see that self-consciousness, or self-awareness, is considered by those in the know — philosophers of mind, psychologists, neuroscientists, etc. — to be a special case of "mere" consciousness. While consciousness per se might well be something we humans share with other species, and maybe even with things that are not alive in any ordinary sense, self-awareness is different.

I prefer the term "self-awareness" to "self-consciousness," by the way, since the latter can, Webster says, mean no more than "uncomfortably conscious of oneself as an object of the observation of others": ill-at-ease in social situations.

Self-awareness of the profound sort that I am talking about, most experts assume — though this cannot actually be proved — is something unique to humans. One has to be conscious to be self-aware, but presumably humans are the only conscious entities in the natural world that are self-aware. We are accordingly the only conscious agents in the world who qualify as persons.

So my argument evolved into one dependent on the idea that the soul comes to us when and only when we have developed, in our mother's womb, into full-fledged persons who have become not only conscious but self-aware. Ergo, whatever the moral implications of abortion prior to the dawn of fetal self-awareness may be, abortion isn't necessarily murder.


That was the project I originally had in mind. But as I investigated such areas of human inquiry as various theories of consciousness/self-awareness and the Christian notion of the soul, I ran into problems.

One of these problems was the very notion that the soul — the transcendent dimension or spiritual principle of the human person, which survives after death — is something that "arrives," something that can "come to earth" from on high at some particular time. In the Bible, specifically, neither the Old Testament nor the New has it that soul and body are ever all that distinct to begin with. We are each an animated body, in the view of the Bible writers, not an incarnated spirit. (See Richard P. McBrien, Catholicism, p. 159.)

The latter idea came into Christendom from ancient Greek thought, via the patristic writings of the Early Church and then the Scholastic philosophy of the medieval period. Where the animated-body view spoke mainly of the resurrection of the body, the incarnated-spirit idea envisioned Christian salvation in terms of the immortality of the soul.

Modern Christian thought, guided by science, philosophy, etc., draws in various ways from both traditions. I find that I am not qualified — as yet — fully to disentangle such questions. But it has become evident to me that my original concept of the soul as something separate from and added to the body may be subject to doubt.


In fact, I now find myself leaning more in the direction of the animated-body notion of the soul. I interpret this notion as (at least possibly) an instance of what I believe is called by modern philosophers "phenomenal" existence.

I have only an incipient grasp of phenomenology, I admit. My understanding is that physical and phenomenal existence are seen as conceptually different, with the former giving rise, in the case of consciousness, to the latter. Accordingly, consciousness or sentience or subjective experience is "always conscious of something, of phenomena" (McBrien 118, my italics).

In at least one phemomenological view of consciousness (that of Chalmers; see below), in this world it very likely arises naturally from physical brain states, but it is not identical to them. Nor is there necessarily any logical reason to presuppose that this arising of consciousness must happen. This could instead have been a "zombie world" where physics and psychology say all there is to say about the workings of the human mind.

Real consciousness is in this view aware of external objects, in themselves, as phenomena whose characteristics are called qualia. The physical and psychological processes of sensation, perception, and cognition merely underlie consciousness. Instead of seeing, say, a red tricycle as just a thing in the external world, it experiences a red tricycle. There is thus (again, in this particular philosophical view) a dualism between the physical and the phenomenal. You can't in our natural world have the phenomenal without the physical — or vice versa — but the two are not the same. Hence, consciousness "has a structure and rules proper to itself ... an intentionality" (McBrien 118).

David J. Chalmers's The Conscious Mind

The same philosophical position, that of phenomenology, can serve (as I have already indicated) as a basis to suppose that consciousness, and particularly self-consciousness or the human sense of self, is unique to human persons, given rise to by the sheer complexity of the "information states" human brains can take on. The Conscious Mind: In Search of a Fundamental Theory, by the philosopher of mind David J. Chalmers, hints that such may in fact be the case.

Chalmers is careful to give contrary theoretical positions their due, but he basically favors a phenomenological mind-brain dualism, a fundamental distinction between the phenomenon of consciousness and the psychological workings of the mind which gives rise to it. But, again, this dualism is naturalistic; it is in the nature of things in this world, not the result of some logical necessity. Hence, the strictly conceptual possibility that the mind could exist independently from the brain simply does not pertain to our actual world.

Chalmers does not dwell on self-consciousness or self-awareness as such. He seems to feel that we humans possess it uniquely, in that we alone are agents or persons; other animals may lack it. It, too, seemingly represents for him a phenomenal counterpart to something brain-based and neural, something whose operations we call psychological. We have a subjective, intentional experience of the inner self, just as we have a subjective, intentional experience of a red tricycle. The real objects of these experiences both qualify as not things but phenomena.


This view, which I find I now tend to adopt as my own, poses another pair of problems for my original intention to demonstrate that early-stage abortion is not tantamount to murder.

At first, I thought to suggest that there is a "dawn of sentience," during later stages of fetal development — sentience being a synonym for consciousness or subjective experience. If that were so, perhaps the soul "arrives" at that juncture, not before.

But Chalmers seems to think it to be non-crazy to associate some incipient form of consciousness with anything, alive or not, that processes information — even a thermostat! Clearly a very-early-stage human embryo, whose nervous system has already begun to form during the third week of pregnancy and which now responds to external stimuli, processes information. In other words, its mother may not yet have even discovered she is pregnant by the time her embryo has already had its "dawn of sentience."


The second of the pair of problems posed to my position by Chalmers's ideas on consciousness has to do with what I imagined to be the "dawn of self-awareness," supposedly occurring sometime after the dawn of sentience. I had hoped to be able to show that the "dawn of self-awareness" comes at sometime roughly near the point at which the fetus becomes viable outside the womb, in (say) the seventh or eighth month of pregnancy.

But showing that seems not to be possible. For one thing, I have yet to find in Chalmers or anywhere else anything which justifies supposing that self-awareness as a form of consciousness can exist prior to the inception of the self as a psychological construct.

When a psychologist speaks of the self, what he or she has in mind depends in part on his or her particular school of personality theory. But in general, personality theories that emphasize the self at all hold that a newborn infant doesn't even have one yet! The self seemingly appears in the psyche during (say) the first few months of human life after birth, after the neonate has begun to recognize that the external world is something separate, a set of objects that can be inspected, moved around in, and manipulated.

If that is so, then very likely the fetus has no self, psychological or phenomenal, to be aware of. The dawn of self-awareness comes only after birth; it cannot serve as a possible delimiter to when early-term abortion stops counting as anything other than murder.


Then there is the problem of when, from a religious perspective, ensoulment happens — i.e., when the body of the embryo or fetus acquires a soul. According to Wikipedia, during at least one period in the Middle Ages the Catholic Church held that ensoulment coincides with the "quickening" event during the second trimester of pregnancy when the mother first feels the fetus move in her womb. Still, during most of history ensoulment has been taken to occur at the time of conception.

In the same way as, according to phenomenology, consciousness is "associated with" underlying physical brain states, I wonder if perhaps the soul is, at bottom, the phenomenal aspect which is associated with the physical human body from the moment of its conception on.

(I hope I am stating this right. I find that speaking phenomenologically feels quite clumsy, as of yet. I would like to say that the "phenomenal soul," if there be such a thing, emerges at conception. However, I am aware that emergentism is a philosophical position in its own right, and may require a different theory of consciousness — and possibly of the soul. So maybe I'd better avoid saying "emerges" and just keep saying "arises from," or "is given rise to," or "is associated with.")

The general idea of phenomenology seems to be that phenomena, with their qualia, deserve to be treated by philosophers in a different way than the mere "things" which give rise to them. Their very existence is of a unique sort. They are "objects of intentionality," per the philosopher Husserl.

As intentional objects, moreover, they are to consciousness as the field of vision is to the eye. "There can be no field of vision without the eye, and yet the two remain distinct," McBrien writes of Husserl's insights (McBrien 118). "For the same reason there can be no reality without consciousness. The task of phenomenology is to describe the various regions of reality in the way they appear to consciousness, and to show what activity consciousness must carry out to allow such regions of reality to appear."

So it occurs to me that a human soul could be thought of as one of the countless "intentional objects" of God's consciousness. We assume that God has a mind and a will, after all, implying that he is possessed of some sort of consciousness. Suppose a child-to-be appears in God's consciousness — in his "eye" or phenomenological field of vision, as it were — and boom! A soul is born.


What seems to have happened to me, along the way to trying to show that an early-stage fetus is not ensouled until some (apparently nonexistent) "dawn of fetal self-awareness," is that I have managed to begin convincing myself of just the opposite. There is every reason to believe, I now think, that ensoulment occurs at conception, when God "first casts his eye" on the child-to-be.

So I have discovered in the very concepts which I have drawn from phenomenology, in hopes of using them to morally legitimize early-term abortions in Christian eyes, reason to believe I've been wrong, wrong, wrong all along.

It is not a comfortable feeling, I can assure you.

Roe, Casey, and Originalism

John Roberts

President Bush's nomination of appellate judge John G. Roberts Jr. to fill the vacancy left at the U.S. Supreme Court by Sandra Day O'Connor's retirement is provoking interesting op-ed commentary, including "Search for 'original intent' leads to constitutional confusion," published by The Baltimore Sun on July 21, 2005.

In it, Tim Baker and Emily Baker, a father and daughter, write of Roberts as if he is wedded to the doctrine of constitutional interpretation called "original intent," or, if not that, the closely related one called "originalism" or "textualism."

Tim Baker is a former U.S. Attorney for the State of Maryland and law clerk for Supreme Court Chief Justice Warren E. Burger. His daughter, Emily, studies constitutional law at the University of Maryland, Baltimore County. "If, as expected, Judge Roberts is an originalist," they aver, "he will join Justice Antonin Scalia and turn to history, demanding that courts sing from that hymnal. But the voices of the past often sang from different pages."

What is that supposed "hymnal" from which today's originalists/textualists claim to sing? At the very least, it is "the meaning upon which the people originally agreed when they democratically adopted a provision" of the U.S. Constitution, as amended.

The doctrine of "original intent" takes originalism a subtle step further: "to ascertain the meaning that the framers had in mind." That is, where originalism per se "eschews any attempt to ascertain the framers' subjective states of mind and focuses instead on the text itself, giving it the objective meaning that reasonable people would commonly have understood at the time of its ratification," original-intent proponents want to know what the framers were actually thinking.


I find two problems with the Bakers' analysis. First, they pretty much accuse Roberts of being an originalist — "If, as expected, Judge Roberts is an originalist" — even though he specifically denied belonging to that or any other easily named branch of constitutional interpretation theory when he was vetted prior to his 2003 approval as an appellate judge.

See "Roberts has avoided tipping his hand" in the same edition of the newspaper for more on that. "I don't know if that's a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, 'I'm an originalist, I'm a textualist, I'm a literalist or this or that,'" Roberts said during his confirmation hearings in 2003, according to the article. "I just don't feel comfortable with any of those particular labels."

The second problem I find with the Bakers' analysis is that they malign originalism by undermining original intent. They provide a short history of how the founders in their public and private declarations and acts often went against the words and spirit of what they had put in the constitution.

Both Washington and Jefferson, for example, vacillated as to whether to own to a Supreme Being (in Washington's words) "in whose hands we are, who led our fathers, as Israel of old." So what were they really thinking when they erected (in Jefferson's words) "a wall of separation between church and state"? Original-intent interpretation requires that we know ... which we can't.

But, it seems to me, that objection has nothing to do with originalism/textualism, focusing as it does not on the framers' subective states of mind but on the objective meaning the words conveyed to reasonable minds of the times.


It still may be the case, of course, that the "objective" meaning of the constitution's words when and as written is likewise unascertainable — and originalism/textualism accordingly a bad idea. But the Baker's argument doesn't really establish this. It merely points out why determining "original intent" is a vain hope.

Even so, we can be sure we'll be hearing about "original intent" and "originalism/textualism" — along with "literalism," "judicial activism," and all sorts of other putative approaches — until we're sick to death of the whole matter.

In the question of whether or not abortion can be outlawed, the 1973 Roe v. Wade decision was based on the Due Process Clause of the Fourteenth Amendment, which protects against state action the woman's right to privacy, except where there has been "due process of law" carried out on the part of the state.

The amendment, ratified in 1868 after the Civil War, does not actually mention "privacy." The "right to privacy" asserted in the Roe decision was (rightly or wrongly) read into the text. The text does say: "... nor shall any State deprive any person of life, liberty, or property, without due process of law." This is, in fact, the entire Due Process clause.

(The amendment also says, in what is called the Equal Protection clause: "... nor deny to any person within its jurisdiction the equal protection of the laws.” The full text of the amendment is here, at the U.S. Constitution Online website.)

Justice Harry Blackmun noted in his written decision (online here) on behalf of the Roe majority, in view of the lack of explicit mention of the right of privacy in the clause in question, “Appellant [i.e., Roe] would discover this right in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment's Due Process Clause.”

The same "discovered" right of privacy had previously been cited by the Supreme Court in striking down laws prohibiting interracial marriage, mandating sterilization, hindering the use of contraception, and curtailing parents’ roles in education.


The Roe decision was shored up in 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Casey decision created an “undue burden” standard. In upholding Roe, it said unduly burdensome restrictions on abortions were unconstitutional, though certain state restrictions such as informed-consent and parental-notification laws were not automatically held to be unduly burdensome.

Casey upheld Roe (invoking, in part, the time-honored rule of stare decisis: "Let the decision stand") in terms of its “essential holding.” Yet, overturned by Casey was the putative “right of privacy” as it supports abortion. The majority opinion in Casey (online here) written by Justice O'Connor, Justice Kennedy, and Justice Souter said:

The Roe Court reached too far when it analogized the right to abort a fetus to the rights involved in [various supposedly applicable decisions named in the Roe opinion], and thereby deemed the right to abortion to be "fundamental." None of these decisions endorsed an all-encompassing "right of privacy," as Roe … claimed. Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy.

So “privacy” was no longer a valid rationale for setting aside state anti-abortion laws.

The Casey decision then stated:

The correct analysis is that set forth by the plurality opinion in [the 1989 Webster v. Reproductive Health Services case]: a woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may [nevertheless] regulate abortion procedures in ways rationally related to a legitimate state interest.

"Legitimate state interest” could, in other words, justify abortion restrictions ... but under Casey, even so, considerations of personal "liberty" invalidated sweeping state laws banning all abortions outright.


It seems to me (and I'm no constitutional expert) that Casey is actually something of a blessing in disguise for abortion foes. First, it allows Roe's abortion "right" to be "hollowed out" by various state-imposed restrictions, as long as due process is observed and no "undue burden" is placed on the basic "right" found by the Roe court.

Second, Casey changes the rationale underpinning that "right" from "privacy" to "liberty." If Roe is overturned, other Supreme Court decisions based on "privacy" will still stand: the ones striking down laws prohibiting interracial marriage, mandating sterilization, hindering the use of contraception, and curtailing parents’ roles in education, which no one wants to go by the boards.

So, when people talk of overturning Roe, what they really mean is overturning Roe as "corrected" by Casey.

And when people talk of "original intent," "originalism," or "textualism," in this regard, they mean that the authors of the Fourteenth Amendment — or reasonable people of the day reading its text — would never have considered a citizen's essential "liberty" to include the right to choose to have an abortion.

It will be interesting to see, should John Roberts take a seat on the Supreme Court, and should Roe/Casey eventually be struck down in part because of his vote, whether he in fact will have acted on the basis of such considerations of "originalism/textualism."


For I personally don't think that's the right way to overturn Roe/Casey. (Again, I'm not a lawyer or constitutional expert.) I think the right way is to take up where another potential Supreme Court nominee on the president's short list, appellate judge Edith Hollan Jones, left off when she wrote in her decision in a key 2004 abortion case, "If courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's 'choice' if far more risky and less beneficial, and the child's sentience far more advanced, than the Roe court knew." (Source: this post at SCOTUSblog, a weblog about the Supreme Court Of The United States.)

I particularly underscore the part about the child's sentience being "far more advanced" than was understood when Roe was decided. Medical science has since determined, I believe, that a fetus's heartbeat, brain activity, and reaction to pain begin a lot earlier during the nine-month gestation period than had once been thought.

Basing the overturning of Roe/Casey on that new information doesn't comport well with a doctrine of constitutional originalism/textualism, in my opinion.

In 1868, when the Fourteenth Amendment insisted "... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," I doubt whether any reasonable reader of those words would have considered a fetus a "person." Not that many readers of these clauses would have felt abortion to be right or moral; just that (I'm admittedly guessing here) the words of the amendment didn't at all apply to the subject of abortion, since no one in those days of medical ignorance would have considered an early-stage, pre-viable fetus remotely a "person."


If I'm right about that, then I don't see how originalism/textualism can overturn Roe and Casey.

Originalism/textualism is a doctrine designed mainly, I gather, to block judicial "activists'" widening of constitutional protections in the Bill of Rights and elsewhere, by which "liberal" jurists have ostensibly "discovered new rights" such as those making it harder to prosecute and convict the criminally accused. Roe's right to "privacy" for a woman seeking an abortion was, in some eyes, one of those "discovered" rights.

But, by that logic, so were the other "privacy" rights mentioned earlier: the right to engage in interracial marriage, the right of the mentally deficient to avoid forced sterilization, the right of married couples to use contraception or birth control, and parents' rights to take an active role in their children's education.

Roe was decided — and "corrected" by Casey — in a world in which it had become understood for perhaps the first time in history that women could and should no longer be chained to their reproductive capacities. There was, at bottom, an element of humanity — compassion toward women as "persons" — underlying the Roe/Casey decisions.

In other words, our understanding of who deserves our full human compassion enlarged to include women, in all their humanity. As that happened, so, too, did the applicability of our nation's constitutional guarantees, in order to keep pace with our widened understanding and compassion.

That's not something that is permissible under originalist/textualist doctrine.

What I think needs to happen is for our compassion and humanity to widen further now, to include the fetus as a "person" deserving of constitutional protection. When the Fourteenth Amendment states, "... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," I think we ought to include the unborn fetus under its umbrella of personhood, based on recent advances in understanding of fetal development.


In the past, I have argued that no one is a "person" until born, since it is unlikely that the fetus, prior to birth, has yet become truly self-aware. I hereby recant. I think that reasoning was flawed. It's not that I think self-awareness begins before birth — as far as I know, there's no evidence for that — but that I think a non-self aware fetus still ought to command our full compassion and humanity.

After all, it's not clear that a baby born terribly brain-damaged ever develops precious self-awareness, and yet no one would fail to extend the umbrella of sacrosanct personhood to such an unfortunate. Terminating his or her life, even for reasons of "mercy," would still be considered murder under the law.

So, if a fetus ought to command our full compassion and humanity because its heart, brain, and nervous system have kicked in by a seemingly very early stage of development, then I say it ought to be accorded the status of being a "person" under the constitution and the law.

It's a matter of widening the ambit of constitutional protections to bring them in accord with present-day knowledge — not of shrinking it to fit the more limited "textualist" or "originalist" understandings of the past.

This is why I think originalism/textualism to be the wrong remedy for Roe. And I hope that Judge Roberts, should he ascend to the High Court and take on the issue, will vote to overturn Roe and Casey on other than originalist/textualist grounds.

Towards a Culture of Life, Part 2

In Towards a Culture of Life, Part 1, I said I hoped for a new or recovered ethos in which human life, even unborn human life, would be held sacred. How do we get to that ethos? How do we scale that particular Mount Everest?

Having the Supreme Court overturn Roe v. Wade, it seems to me, amounts to no more than establishing a base camp on the lower slopes of the mountain. It's necessary, it's good — but it's not enough. From there, we have to actually lower the number of abortions, which may or may not be prohibited by law in the various states after Roe dies — if it dies. Ultimately, we have to change minds, hearts, and behaviors so that discretionary abortions on demand are no longer sought.

Quite a tall order.


Meanwhile, just gaining that Roe-less base camp will take a minor miracle. As Catholic ethicist George Weigel points out in this column from late 2004, the Supreme Court is not divided 5-4 in favor of letting Roe stand; it's divided 6-3. Only Justices Scalia and Thomas and Chief Justice Rehnquist can be counted on to overturn Roe. Even if Justice O'Connor's replacement is solidly anti-Roe, that only makes four votes in favor of overturning Roe and its follow-on, Casey v. Planned Parenthood, the case "which shifted the ground of the right [to have an abortion] from Roe’s 'privacy' to the Fourteenth Amendment’s 'liberty'."

To get to five votes against Roe, assuming an anti-Roe jurist replaces O'Connor, one of justices Breyer, Ginsburg, Kennedy, Souter, and Stevens would also have to retire and be succeeded by a justice who would overturn Roe. (And Rehnquist, if poor health ends his career, would have to receive an anti-Roe replacement.)

Moreover, a case which could conveivably be used to reverse Roe would have to find its way to the Supreme Court's docket. The docket for any current session is generally set at the end of the prior session. Then it can take up to a year for a case on the docket to be heard, and then an indeterminate time until it's decided.

Furthermore, Weigel says, there's no suitable case in the federal judicial "pipeline" even to be considered for the docket. It's not clear to me, no constitutional law scholar, what kind of case it could be, anyway. Who is entitled to sue on behalf of an unborn fetus whose life and liberty are threatened by legalized abortion?


Then there's the strategy question. Weigel is probably right to assume that Roe/Casey will have to be "hollowed out," to the extent possible, by means of state laws — clinic regulations, parental-notification statutes, informed-consent mandates, etc. — which circumscribe the availablity of abortions while not, in the eyes of the current Supreme Court, placing an "undue burden" on the supposed abortion "right" per se.

Weigel points out that Plessy v. Ferguson, the 1896 decision enshrining "separate but equal" treatment of Negroes and thwarting later civil rights advances, was never formally overturned — "it was gutted over time, in a series of cases, to the point where Brown v. Board of Education could administer the coup-de-grâce in 1954."

If the hollowing out process takes a lot of time, it may be years before Roe and Casey bite the dust. If they ever do.


If the states do regain the ability to outlaw abortion someday, it will be a sign that "base camp" has been reached, and all systems are go for an assault on "the peak." But at the end of the day, hearts and minds and the attitudes we take toward procreation, sex, and marriage will need to change. Then and only then can the "culture of life" pennant be planted proudly on the sacred mountaintop.

Overturning Roe and Casey, if it happens, would definitely get folks' attention. I'm hoping it would take our society to a "tipping point" such that a widespread embracing of a respect for human life becomes far easier than it has been for decades.

But resistance to the final tipping of this "tipping point" would be strong. What interests me even more than how this war can be won in a legal/constitutional sense is how it can be won in the hearts and minds of all of us.

Abortion and Personhood

Susan Jacoby's Freethinkers: A History of American Secularism has a section that makes as cogent an argument as I have ever heard in favor of legal abortion.

To my mind, the argument hinges on the question of what is a "person"?

In writing the majority decision in Roe v. Wade, the Supreme Court case that made abortion legal in 1973, Justice Harry Blackmun, says Jacoby

... went on to state unequivocally that 'the word "person," as used in the the Fourteenth Amendment [to the U.S. Constitution], does not include the unborn. (p. 345)

The Fourteenth Amendment guarantees "the equal protection of the laws" to "any person." No "person" may have "life, liberty, or property" taken from him or her "without due process of law."

So is an embryo/fetus a person? If it is, its life cannot legally be taken from it by an intentional abortion.

But if it is not a person, then state anti-abortion laws violate the mother's "privacy" in making her own reproductive decisions.

(Though "privacy" is not a word that expressly appears in the Fourteenth Amendment, the Supreme Court has a history of interpreting the Due Process clause that does appear there as a "privacy" guarantee. For example, the implicit "privacy" guarantee of the Fourteenth Amendment was cited by the Court in striking down state laws against interracial marriage.)

So the question of the "personhood" of a fetus or embryo is paramount to the abortion debate. At least while a fetus cannot survive outside its mother's body, I would say (as would Jacoby — see pp. 344-5) that it is not a person.

And that is exactly what Justice Blackmun found: persons, at least in a legal or constitutional sense, do not include the unborn.

In a previous post, The Pearlescence Principle, I indicated that "personhood" is absolutely central to my (evolving) worldview. It is the human "person" who is capable of making his or her own reality, bridging the divide between pure, unfiltered objectivity and ordinary, unreliable subjectivity. I tried to indicate in that post, and also in another, Verum Factum, what Giambattista Vico, a Neapolitan philosopher, seems to have discovered some three centuries ago: the idea that we make our own truth or reality — for that is what verum factum means.

As a person, each of us is capable of making what he or she deeply believes in, or takes to be an axiom of faith, absolutely real, for ourselves and perhaps for others as well. This is true of Christians and other religious believers, and it is true of freethinkers like Jacoby also. "God-fearing" Christians make God real in their lives. And I have no doubt that Jacoby's naturalistic belief system, just as if it were a religious one, feeds back into her very experience of the world, coloring it, molding it, making it conform to that worldview per se. Atheism, secularism, and rationalism work for her, just as religious belief works for others.

We each have certain "pearls" of faith, belief, and wisdom buried deep within our "souls." Once activated, they cast a "pearlescence" or "opalescence" originating from within out upon the world, changing that world at least as we personally experience it. In Jacoby's case, the "pearls" of her insight are different ones that in the case of, say, an evangelical Christian. But the Pearlescence Principle works just the same. Jacoby, like everyone else, uses the light of her "inner pearlescence" to personalize her private world.

That we can do this amazing, pearlescent thing at all has to do with our being self-aware creatures, I think. Personhood and self-awareness go hand in hand. They may even be the same thing.

A fetus has yet to develop self-awareness. I say this because it is standard psychological opinion, I believe, to maintain that even a newborn baby (much less a fetus in the womb) is not yet self-aware. Only when, after birth, it learns that it is separate from its mother, and also from the world at large, does an awareness of its personal selfhood dawn upon it. Only then is it a person.

Yes, a fetus feels pain. So do my beloved pet cats, Xander (a.k.a. Mr. Pooh) and Willow (Ms. Mouse) — but they are not self-aware (or so say most experts on animal psychology; my kittycats may wish to disagree). I believe that a fetus can be no more self-aware than my Xander or Willow.

Accordingly, believing as I do in the Pearlescence Principle, and believing that it doesn't yet apply to an unborn fetus, I would have a hard time insisting that a fetus is a "person" entitled to constitutional protections.

And so I thank Susan Jacoby for laying out in a mere page or two what the crucial questions are concerning abortion's continued legality: personhood, privacy ... and moral relativism. Yes, moral relativism, which Jacoby says is not at all the bête noire cultural conservatives take it to be.

Some things are moral absolutes, she says — the proscription on murder, for example, which is the unlawful taking of a person's life.

But morality applies to other things in a relative way. What is or is not moral depends on its context ... and who better to determine the contextual morality of a contemplated abortion than the pregnant woman herself?

So, I would say, abortion must remain legal ... and if Roe happens to be struck down by a future Supreme Court, as now appears likely, then state legislatures ought to refrain from passing blanket proscriptions on it in the aftermath of the reversal.