Jumping The Abortion Shark

I have been closely following the history of the hyper-restrictive – grossly over-restrictive, in my estimation – abortion laws and bills, including the so-called “heartbeat” laws / bills. As a result, I have become convinced that the biggest problem with the abortion debate – both pro-choice and pro-life -- is that both parties assume they know one helluva lot more than they actually do, in fact, one helluva lot more than anybody knows about what a fetus in a womb actually is, “ontologically”. In fact, both parties assume that they know one helluva lot more than anyone can know, even in principle.

First, we need to define some terminology.  Consider the word “phenotype”. “Phenotype” refers to those characteristics of a biological organism that are naked-eye, empirically, macroscopically observable, even to a casual observer with no zoological training or education in molecular genetics. Think of “phenotype” as referring to what an organism – any biological entity – “looks like” upon naïve examination. (The companion term for “phenotype” is “genotype”:  the composition of an organism at the level of molecular genetics and DNA. Unless you have X-ray eyes that can see an organism’s cells down to the level of individual DNA base pairs, and a brain that can instantaneously sequence any given DNA molecule, the genotype of an organism will be anything but observable on the surface. Phenotypically, chimpanzees and humans are quite similar, and are even similar well over 95% genotypically. But that 5% gives us Mozart, Shakespeare, and Einstein.) So, yes, the fetus is human as to phenotype. Phenotypically, the fetus is undeniably human. Phenotypically, a cadaver is also human.  But we usually do not assert that cadavers have rights: the right to vote, the right to hold office, the right to due process, etc. Why? Because a cadaver is not human. A cadaver is basically just a pile of meat: human meat phenotypically, but just meat nonetheless.

What nobody knows is what makes a fetus a human being -- if it is one -- or when it becomes human. There is something about being human that – so we and human cultures immemorially have held – that far transcends considerations of mere phenotype and genotype alike. Human beings, we intuit, are more than just meat plus genetics. What that “plus” is is variously termed “spirit,” elan vital, “sentience,” “intelligence” … even “free will” … a “god-shaped void” … even “soul”. The point is that whatever it is that makes a human being human, whatever it is that distinguishes a mere pile of meat from a human being, is a matter for philosophy, metaphysics, and religion. None of these can be written into law and remain consistent with the US Constitution, because writing them into law would violate the “establishment” clause of the First Amendment, so such a law would favor one religion, one philosophy, one metaphysic over others. Therefore, all laws that seek to prohibit abortion on the basis of the “personhood” of the fetus are immediately and prima facie unconstitutional. Such laws seek to smuggle religion under color of law past the First Amendment and into the secular, civil law.

Both pro-life and pro-choice stances fail for just this reason. Actually, in what follows, I should, strictly speaking, refer to abortion-on-demand (hereafter AOD) positions. Abortion on demand (AOD) is not the same as pro-choice. I am personally pro-choice, but I do not support abortion on demand.

The pro-life side says that the fetus is human from conception. Really? How do you know? Because the fetus has DNA, 2 arms, 2 legs, etc.? I.e., because the fetus is phenotypically human. So is a cadaver. But a cadaver is just a piece of meat, phenotypically. Are we then to conclude that a fetus, with which it is phenotypically identical to a cadaver, is likewise just a piece of meat? Justifying a pro-life stance means going beyond mere phenotypic – and genotypic — considerations and accounting for issues like spirit, soul, sentience, etc., etc. – which renders a pro-life stance, however religiously orthodox, constitutionally and legally untenable. Legislating a pro-life policy into law means at least implicitly legislating religion into law. Believing that a fetus is a human being as a matter of religious principle, as pro-life people usually do, does not make such a principle legally or constitutionally legitimate.

Similarly, AOD people – remember: AOD is not the same as pro-choice -- say that the fetus in the womb is just a glorified hangnail -- up until the time of birth. As such, so the AOD argument goes, the fetus is the woman's property, not essentially different from my car or my computer. So the woman can dispose of the fetus as she wishes, just as I can with my car or my computer. Why? Because, just as pro-life people are certain the fetus is human from conception, AOD people are equally certain it is not. (AOD is in all essentials the same argument plantation owners in the antebellum South used to justify slavery:  slaves are not human, and, being mere “meat machines,” may therefore be treated as property. I wish this similarity made AOD advocates more uncomfortable than it evidently does.) This principle is no less religiously / metaphysically / philosophically grounded than its pro-life counterpart – and therefore just as inadmissible constitutionally.

So you say "Hell with it, ignore / overrule the US Constitution vis a vis such gravely serious 'life' issues." Really? Seriously? Fine. Go ahead. Knock yourselves out. But be prepared for the other side to do the same, e.g., the right wing will want mandatory Christian-only prayer in public schools on religious grounds; the left wing, no-less-mandatory orientation for people who want to voluntarily commit suicide, also on religious grounds. One Taliban -- left or right makes no difference -- will have inherited the Republic, the only difference being that, in the former case, the Handmaid's Tale costumes will be red, and in the latter case, blue. Congratulations! All I need now is for someone to tell me where to send marigolds to decorate the coffin of the "establishment" clause. Both sides will have jointly done Donald Trump's work for him: rescinded the First Amendment.

My point in all the foregoing? Simply this: neither side of the abortion debate knows for sure exactly what the fetus is ontologically in any manner enactable into law in a way consistent with the US Constitution. Both sides confuse passionate belief with knowledge.

My personal position? I have no idea. I am pro-choice. One more time:  pro-choice not AOD. (Why merely pro-choice instead of AOD? Short answer: because, unlike pro-life and AOD people, I do not profess to know what the fetus is, ontologically. Keep reading ... ) But my pro-choice stance is predicated on my ignorance, not on my knowledge. As far as I am concerned, the “ontological” status of the fetus is one of Donald Rumsfeld’s “known unknowns”, i.e., something I know I do not know. Consequently, I am convinced that we need to approach the issue with all due humility, epistemological modesty, and caution.  Hence my solution, which is guaranteed to be shot at from both sides:  allow maximal choice when the human-ness of the fetus is minimal, e.g., roughly the first trimester, and allow successively greater restrictions when the human-ness of the fetus becomes increasingly maximal, e.g., roughly the 3rd trimester. (And yes, to be sure, I am not an ob / gyn, but I would wager that there are legitimate reasons for abortion, even in the 3rd trimester.) I repeat: I adopt this stance, not because I do know what the fetus is, but because I do not know. Moreover, I freely admit that I know I do not know. I err on the side of caution.

(So why not err on the side of caution toward the woman? Good question. This is my answer: because I am sure the woman is a human being. I do not have a similar degree of certainty about the fetus. So the fetus is more deserving of the benefit of caution. If I were as uncertain about the “ontological” status of the woman as I am about her fetus, this would be a compelling objection. But the situation is not nearly as "symmetric" as the above boldface question suggests.)

So in the end, I agree with both Roe and Casey, which leveraged the Court's ignorance as to the personhood of the fetus, and claimed no knowledge. Regarding that, if you read the actual decisions, you will notice that in neither case does the Court jump into the briar patch of trying to decide whether the fetus is human or not.

Just once -- just once -- I would like to hear someone -- anyone -- on one side of the abortion divide or the other be modest enough to say "I dunno ... it beats-a livin’ hell outta me!” Unfortunately, in the current abortion combined tag-team wrestling match / pissing contest, such reticence is much more honored, if at all, in the breach than in the observance.

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And on a closely related subject …

As to men making laws regulating abortion ...

Yes, you can argue that men have no business doing that, because men cannot get pregnant and give birth. Fair enough.

But in that case, it is equally fair to argue that women -- precisely because they can get pregnant and give birth -- are caught in a "facial" conflict of interest on the issue of abortion.

Arguing that men have no business regulating abortion is like arguing that only Presidents who have combat experience should be Commander-in-Chief of the Armed Forces. Which would rule out Barack Obama. Also Abraham Lincoln, who served for four months as a lieutenant in the Black Hawk War of 1832, but who never saw combat.

But then, at the opposite extreme, the "conflict of interest" aspect would have ruled out Dwight Eisenhower.

James R. Cowles

Image credits

"Abortion On Demand" protest sign … Debra Sweet … CC BY 2.0
Human fetus at 10 weeks … Dr. Suparna … Creative Commons Attribution-Share Alike 2.0 Generic
Women carrying pro-choice signs … TheCrazyFilmGirl … CC BY 2.0
"Jail Abortionists" sign … Rev. Spitz … Creative Commons Attribution-Share Alike 3.0 Unported
Doctor performing abortion … TipsTimes.com/pregnancy … CC BY 2.0

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