By W.H. MARSHNER
Moral Majority, Inc.500 Alleghany Avenue
Lynchburg, Va. 24501
Wm. H. Marshner
Wm. H. Marshner is professor of Theology at Christendom College in Front Royal, Virginia. He is a leading articulator of moral and social concerns, important to the ‘New Right’.
The pro-abortion forces and organizations in the United States suffered a bitter defeat in the summer of 1980, when the Supreme Court upheld the constitutionality of the Hyde Amendment. They suffered another defeat in the fall of 1980 when a powerful new force emerged in electoral politics, the pro-life and religious Right bloc.
Now the pro-abortionists are preparing their counterattack. A lavish campaign of full-page advertisements in major newspapers, paid for by Planned Parenthood, NOW and the ACLU, reveal the themes which these groups hope to use to demolish the pro-life cause.
The purpose of this booklet is to survey the counter-attack and to evaluate the themes and charges contained in it, as an educational service to all those interested in the abortion debate.
These themes are four in number: (1) that pro-life legislation conflicts with American values of tolerance and religious diversity, (2) that the legislation itself (whether it be a Constitional Amendment or a Human Life Bill) would have ugly legal side-effects, (3) that the legislation would force women to continue traumatic pregnancies (as in cases of rape, incest, or fetal deformity), and (4) that it would take away the right to effective birth control, destroying the American woman’s hard-won right to reproductive freedom. These themes will be taken up in the order stated and handled in dialogue fashion.
Theme # 1: Pro-Choice as an Expression
of Religious Freedom
People who really support the American way should be pro-choice, because tolerance coheres with religious freedom, diversity, and the separation of church and state. By contrast, the pro-life movement is a determined minority seeking to impose its religious dogmas on the general public; it is part of the whole “Moral Majority” phenomenon of intolerance.
This theme plays on the politics of fear. It tries to make people afraid of certain preachers and religious groups. In the mid-1970’s, the pro-life movement was portrayed as a plot by the Roman Catholic hierarchy; today the pro-abortion forces are simply updating their rhetoric to include Mormon “heavies” and the “scary” Fundamentalists. I call this second-order bigotry. It is the bigotry which calls other people bigots and then screams, “Stop the bigots!”
There is nothing wrong with a politics of fear, if there is something to be afraid of. Aren’t the American people afraid of right-wing preachers?
No. Religious tear did not work in 1960 when a Catholic was elected President, and it didn’t work in 1980 when a number of Democrats tried to use it against the “Christian Right”. We have a particularly valuable statistic on this point from the Culver-Grassley Senate race in Iowa. By 1980, Culver had recovered from being behind in the polls, slugging his way to a 15 point lead. He tirelessly attacked Grassley’s association with the religious Right. Worried at their slippage, Grassley’s campaign people did some catch-up polling to find out what their candidates perceived negatives were. The results were amazing: his number one problem was with senior citizens who feared for their social security, while the so-called “Moral Majority” label was hardly hurting him at all. It is truly striking that, in those heady days when it seemed as though the network news has some new “worry” every night about Evangelical muscle, only 18% of the Iowa voters thought Grassley’s identification with that force was something bad. Moreover, the Iowa result, in which Grassley finally won, was of a piece with the larger, national picture. Jimmy Carter, Frank Church, George McGovern, Birch Bayh – all tried to use this fear, and all of them lost. The American people are simply not afraid of conservative religious leaders who campaign for traditional moral values.
I wonder why not.
Well, I would guess that people are not afraid because they understand the difference between a moral issue and a religious dogma. They know that abortion is a human life issue, not a point of sectarian theology. They know that all sorts of believers and unbelievers, from outright atheists to Baptist preachers, from Roman Cardinals to Hassidic rabbis, are against abortion and support a Human Life Amendment.
I can see that, so I don’t buy the church-and-state argument. But I do think that people should have a choice. Abortion may not be the best choice, or even the right one, but why shouldn’t a woman have that choice?
Look at it this way. We all agree that a person should be free to have his or her choice — provided that one condition is met, namely, that neither choice violates the rights of others or the well-being of others. Isn’t that so? What would you think of a segregationist who said, “I’m pro-choice; I think white people should have the choice to exclude blacks from their schools, if they want to, or their neighborhood.’’ What would you think of a drug-pusher who said, “I’m pro-choice; I think people should be free to get addicted to my heroin if they want to’’? Or what about the rapist’s choice to rape? Or the rioter’s choice to loot and burn? What’s the matter with these choices? Why don’t we think that they, too, expand freedom? Isn’t it just because, in each of these cases, one of the choices violates the rights or the well-being of others?
Now the whole argument about abortion centers on this very point: whether the choice to have an abortion violates someone else’s rights. The pro-life side says it does; and they offer you an argument that the unborn child has a right to life. The pro-abortion side says it doesn’t, but instead of offering you an argument, they just claim to be pro-choice. In other words, they are pretending that the main point of the argument doesn’t exist! They use a rhetoric which simply assumes the point they are supposed to prove. You’ll find this maneuver in the Logic books, written up under the name petitio principii, a famous fallacy.
Theme # 2: The Nightmare Consequences
of a Human Life Bill or Amendment
If fetuses become persons under the law, abortion will become murder, pregnancies will have to be registered, ordinary miscarriages will be investigated by the police, millions of women, many of them mothers of large families, will end up in prison or even on death row, while microscopic blobs become citizens with full and equal rights.
This time the spotlight of fear is turned on the human life legislation itself, but the result is rather like a grade-B horror movie. The miscast “monster’’ couldn’t scare anybody over 8 years old.
Why do you say that?
Because if you are more than 8 years old, you were alive before the Roe vs. Wade decision was handed down, and you might remember something about how America was, when most states had strict anti-abortion laws.
I never thought much about abortion in those days. I guess my memory is a little hazy.
Well, did you ever hear of death row being full of mothers?
No, I never did.
Of course not, because mothers weren’t even prosecuted under those statutes. How about doctors? Did you ever hear of a family physician going to the chair for performing an abortion?
That’s because even the abortionists were not prosecuted for murder. Did you realize that no American criminal statute ever defined abortion as murder? It was usually second degree manslaughter or a misdemeanor.
Well that may have been how it was, but aren’t the pro-life groups trying to change all that? They are the ones who keep saying that abortion is murder. It’s obvious that they want their Bill, or Amendment, or whatever, to make abortion murder from now on, don’t they?
Not at all. When pro-life people say that abortion is murder, they are talking about the act’s moral status, not its legal status. There is a big difference. For instance, if you kill somebody in self-defense, that’s not murder, right?
Ok, but suppose in your secret heart of hearts, you intended to kill that person anyway. Suppose you just took it as a lucky break for you that you were attacked. In that case, the law still can’t touch you, but what you did was morally murder. Do you see the point?
Well, maybe …
Or take suicide. Most moralists teach that we should regard suicide as a form of murder, because that’s what it is morally. But in the legal sphere, a poor fellow who tries to commit suicide and fails is never prosecuted for murder. It is a lesser offense.
Now here’s how I would define the difference. An action’s moral status is how you should regard it in your own conscience, but an action’s legal status is how the government has to regard it. The government has many more factors to take into account than you do in your own mind. The government has to think about the practical difficulties of getting evidence and getting convictions. So, for the sake of better overall enforcement, the legislature will often give an action a lesser criminal status than its moral status would seem to require. Just think of how immoral it is to destroy your mind or body with drugs, and yet the legal penalties for the mere use or possession of drugs are slight. The law goes after the pushers, not the users.
OK, I see the difference, but are you trying to tell me that the pro-life people would be content — CONTENT — if abortion, which they say is murder, were just a manslaughter or a misdeameanor again?
That’s right. They know you can’t send teenage girls and distraught mothers to prison. But they look at these horrible numbers: 10 million babies butchered in this country since 1973. They don’t want vengeance; they just want it to stop. We didn’t use to have this kind of slaughter going on. The old laws restrained it, and the law could restrain it again without any of these nightmare side-effects. That’s all the pro-life people want.
Well, I’m very surprised by that and, frankly, I’m still not sure I believe it. You’re ignoring a very important point. Before 1973, there was nothing against abortion but state legislation, and the fetus had not been defined as a person. The right-to-lifers don’t want to go back to that. They are trying to get federal legislation, including a Constitutional Amendment, which would define the fetus as a person. That is what will make abortion murder and maybe do all those other things.
No it won’t. Neither the Human Life Bill nor the Amendment will have any such effect.
Well, everybody says it would, the newscasters, the reporters, the …
Yes, and they are all talking through their hats. In the law, nothing can make abortion murder, or manslaughter, or any other kind of crime, except a criminal statute. The U.S. Consitution is not a criminal statute, nor is any Amendment to it, nor is the Human Life Bill.
Take the Bill first. All it does is make a finding of fact (to the effect that there is a “significant likelihood’’ that actual human life exists from conception) and then apply that finding to one clause of the 14th Amendment. That one clause is the Due Process clause. The Equal Protection clause is not involved at all, so that citizenship or property rights or voting rights, etc., do not come into the picture. And within the Due Process clause, all that the Bill does is establish the point that one right, namely, the right not to be deprived of life by the State without due process of law, attaches to each human life from conception forward.
Well, right there, that makes abortion a crime, doesn’t it?
No. It doesn’t make anything a crime.
Well it must do something against abortion!
It does: it applies the 14th Amendment in such a way that no state could take an unborn baby’s life without due process of law.
But the state doesn’t do abortions!
Not true. In a very real sense, most states do do abortions. They use their funds, state tax monies, to pay for them, and they allow their facilities, like public hospitals and clinics, to be used for abortions. The Human Life Bill would generally prevent the states from doing that.
Oh, I see. In other words, the practical side is this: just as the Hyde Amendment prevents Washington from using my federal tax money to pay for other people’s abortions, so the Human Life Bill would prevent the state from using my state tax money for that purpose.
Exactly. And it would keep the public medical facilities that were built with your taxes from being used for abortions.
Well, that’s fine, but it goes against what you said before. You said this Bill didn’t make anything a crime. It does. It makes it a crime for the state to fund abortions.
No, No. State governments aren’t liable to criminal charges.
Well, then, suppose the state decides to fund abortion anyway; how can it be stopped?
The same way any other unconstitutional state action can be stopped. The Human Life Bill would make it possible for you to lodge an action in state or federal court to challenge the funding.
But couldn’t the state argue that it had to help the poor?
No, because even now, without the Human Life Bill, the poor have no right to have their abortions paid for by the public. The Supreme Court settled that when it upheld the Hyde Amendment.
Besides, when you talk about helping the poor, you are assuming that abortion is some kind of benefit or goodie. But an action which violates the rights of others is not a benefit. Sometimes the rich get away with murder (I mean literally) because they can afford it. If you extend that “benefit” to the poor, you are not spreading justice; you are spreading injustice.
That’s a very interesting point. But getting back to the Human Life Bill, I thought that this Bill would also force the states to pass anti-abortion laws. Isn’t that the main aim, to prevent private individuals from doing or procuring abortions?
That is the ultimate aim, of course. The Human Life Bill goes only part way towards it. If the factual finding which it makes is accepted by the Supreme Court, and if its interpretation of the 14th Amendment is allowed to stand by the Court, then a state legislature would be justified in passing an anti-abortion law, if it wanted to, but it would not be compelled to do so. The only way to stop private abortions in every state would be by Constitutional Amendment.
And yet you say that even an Amendment would not make abortion a crime.
That’s right. Even a strong, substantive measure, like the Helms-Dornan “Paramount Amendment” or the National Right to Life Committee Amendment, would not itself be the criminal statute under which abortions would be prosecuted. Rather several states would have to pass such statutes, once the Amendment was ratified. And it would be completely up to the legislature to say what kind of crime or misdemeanor abortion was, and what the penalty would be, and who would be subject to the penalty.
All right, but you’re dodging the real issue. If my state passes a fairly lenient law, and the right-to-lifers don’t like it, they could go into the Courts and have the law declared unconstitutional, because it didn’t meet the full requirements of the Human Life Amendment. True?
So what’s to prevent the Court from holding that no state law is acceptable unless it makes abortion first degree murder, and registers pregnancies, and all the rest of it?
What’s to prevent that? The wording of the Amendment. The Court cannot rationally hold that the Amendment requires abortion to be treated as murder in the implementing legislation, unless the Amendment itself says that abortion is to be classified as murder. None of the proposed versions of a Human Life Amendment says any such thing. And none of them ever will. Do you know why not?
Because the pro-life lawyers and law professors who have been drafting these things weren’t born yesterday. They know that they are in for a tough ratification battle. They are not going to hand the ACLU a propaganda victory on a silver platter. They are not going to draft the Amendment in such a way that the wild charges of the other side become true!
Well, that makes sense.
You bet it does.
Theme # 3: Exception and Hard Cases
The so-called pro-life movement wants a Human Life Amendment which recognizes no exceptions for even the most heart-breaking cases. If their Amendment becomes the law of the land, a woman will be forced to continue a pregnancy which could ruin her health or even take her life. If she becomes pregnant by rape, she will have to bear the child of her rapist, no matter what the cost to her mental and emotional health. A girl victimized by her father or step-father will have to carry to full term the fruit of incest. If pre-natal diagnosis discovers that the fetus is genetically abnormal, even hideously deformed, it will make no difference; the law will force the mother to bear such a child anyway, no matter what the cost to her family. Is this “pro-life,” to ruin people’s lives?
Here again, the principal note is fear. Rare and extreme possibilities are brought up to distract attention from the larger phenomenon of abortion on demand, abortion by the millions, for convenience alone.
All right, but these cases do exist. They may be rare, but they happen. So, does the Human Life Amendment allow for exceptions or doesn’t it?
That will depend on which Amendment Congress reports out. It might contain exceptions or it might not. The question is how the Congress (and ultimately the American people) should make up its mind. No one denies that there are human tragedies in cases like these. What is at stake is whether you may kill to prevent tragedy.
Isn’t it also killing to make a woman die in child-birth?
Good point. Shall be begin right there, with the pros and cons of an exception clause for the life of the mother?
Actually, there are three distinct debates over such a clause. The first one has nothing to do with politics; it is conducted purely within the disciplines of ethics and moral theology, and it has to do with the difference between killing and letting-die. Do you mind if I skip over that debate?
No; go on to the other two.
All right, the second debate is between pro-life people and their adversaries. The adversaries say that pregnancy and childbirth are so dangerous, that abortion is sometimes medically necessary to save the mother’s life. The pro-life people counter that this claim is obsolete medicine. They stress the difference between medical procedures which were never treated in the past as direct abortion (such as the treatment of ectopic pregnancy) and those procedures which really are direct abortion. They say that in today’s medicine, if a pregnancy has been properly monitored, there is no such thing as a true, medical indication for direct abortion. The baby can always be brought to term without sacrificing anyone’s life.
I would certainly like to believe that. Are there medical experts who will corroborate that?
Plenty of them. Call your local right-to-life chapter for references.
I may just do that. Now what was this third debate?
The third debate is an intra-mural one within the pro-life movement; it is mainly between lawyers. First I should develop a background.
Suppose the country has ratified a substantive Amendment asserting the unborn child’s right to life, without any exception clauses. Let me ask you a question. Are there any exception clauses on your right to life, or on a mother’s right to life?
Not that I know of.
Fine; so all the Amendment does is make the child’s life and the mother’s life equal before the law. It doesn’t rank them. It doesn’t tell you which one to save, if, God forbid, they come into conflict. Do you see that?
Now suppose a delivery has been partly botched; suppose the doctor has inadvertently allowed an emergency to develop, in which he can no longer save the mother without sacrificing the child, or vice versa. In a case like that, some doctors would do one thing, some the other. What is desirable is that a doctor caught in an emergency like that would not be criminally prosecuted for either choice. If he aborts the child to save the mother, he should not be prosecuted for criminal abortion. (He might be sued for malpractice, but that is a civil matter.) Do you agree?
So do the pro-life lawyers. They also agree among themselves that a doctor in a case like that, in fact, would not be prosecuted under a statute implementing an
exception-free Human Life Amendment. The very fact that the Amendment does not rank one life higher than another leaves the Courts and the public prosecutors free to determine their own policy in such conflict cases.
Now comes the debate. One side says that because the problem can thus be solved without a life-of-the-mother exception clause, there is simply no need for the Amendment to have such a clause. The other side concedes this point but does not trust the Courts to construe the conflict-of-lives situation narrowly enough. They are afraid that the Courts will conceive the situation in terms of health of the mother, so that dishonest doctors can re-introduce abortion-on-demand through the loophole. Therefore they prefer that the Amendment should state its own life-of-the-mother exception clause, so that the clause can be hand-crafted by pro-life lawyers and thus written narrowly enough to avoid the possibility of such a loophole. Meanwhile, the first side counters that having the clause, no matter how well written, would be counter-productive.
Good grief. Which side do you suppose is right?
Oh no, I’m not going to put my foot into that one. I will observe, however, that legal merit is one thing and practical politics is another. It is most improbable that Congress would pass any substantive Amendment which did not carry a maternal life exception.
So the pro-abortionists’ charge that women are going to die on the delivery table is nonsense, with or without an exception clause.
Now what about the rape exception?
Well, all the other suggested exceptions — rape, incest, and fetal deformity — can be handled together, because they all present the same legal and moral issue. Do you have any annoying relatives?
Do I have any other kind?
Don’t be flip. I want you to think of some adult, someone who is unquestionably a human person. Suppose you had a 35-year old cousin named Joan.
Now suppose Joan’s father begot her by rape or incest. Does that supposition give you, or anyone else, a legal immunity to kill her?
Not after she’s born.
Quite right. Now suppose Joan is horribly deformed, mentally defective, and expensive to keep. Does that give anyone a legal immunity to kill her?
Or suppose Joan is just a pain in the neck, a strain on the nerves, or a threat to the sanity of those who have much to do with her. Would she then be denied the legal right to life?
Well, since the legal answer is “no” on all three suppositions, it follows that none of the proposed exception clauses has any legal merit, provided you grant only one premise, namely, that the unborn child is like Joan, a human person.
Now a Human Life Amendment may or may not be worded in such a way as to declare that the unborn child is a person; the word ‘person’ may or may not appear in the text. But even if the word is not used in the Amendment, the pro-lifers will have no plausible case for the Amendment, unless they are prepared to maintain that an unborn child must be treated as a human person for purposes of the right to life. (Otherwise, it is impossible to see why the right should attach to a fetus but not to other masses of human cells, like a tumor or a hydatidiform mole.) And it is also impossible to see why the fetus should
be treated as a person, unless in fact it is one. So the premise that the unborn child is a human person is one which cannot be surrendered by the pro-life people. Therefore they must regard the exceptions for rape, incest, and deformity as devoid of legal or moral merit.
I don’t quarrel with the logic of that, given the premise that the fetus is a human being, as you said. But it seems to me that if the pro-life people were smart, they wouldn’t let their logic lead them over a political cliff. Do you see what I mean? These exceptions are not supposed to make theoretical sense; they are supposed to make political sense, and they do. So why don’t the pro-lifers compromise and take this line: any Human Life Amendment is better than none, and if we don’t grant these exceptions, none is what we ’ll get!
You are forgetting the fact that one of the few political assets of the pro-life movement, perhaps its best asset, is its clear, logical cogency. These people insist that the unborn children deserve protection because they are human beings. If they abrogate that protection wherever it would be politically expedient to do so, they cast this asset away. They become sitting ducks for the charge that they do not believe their own rhetoric.
Well, then, I guess they have no choice.
That’s the way many of them feel. They seem to think that they have a Hobson’s choice: either an exception-free Amendment which is politically unfeasible, or an exception-laden Amendment which is morally bankrupt.
You don’t seem so sure.
I’m not, because there is a third possibility. The pro-life movement could achieve its goal in stages. The first stage could be a Constitutional Amendment which simply gave Congress the power to protect human life at every stage of development and also gave the states the power to pass concurrent legislation as strict or stricter than what Congress would enact. An amendment like that would neither contain nor preclude the hard-case exceptions, so that they would be a dead issue in the ratification battle. Then, as soon as the Amendment was ratified, Congress
could pass an anti-abortion law by simple majority, thus providing a nation-wide “floor” of protection, upon which the states could build. Now the first such law might have some exceptions in it, but at least they wouldn’t be locked into the Constitution.
Aha, and the pro-lifers could keep coming back to Congress to tighten them up.
That’s right. Then would come the third stage. Once the abortionists were out of business, the national climate would be better suited to the passage of a definitive Amendment, such as the Helms-Dornan “Paramount”.
Very interesting. Is anybody pushing this idea?
A detailed case has been made for it by Dr. David O’Steen, the director of Minnesota Citizens Concerned for Life.
Well, as I said, it’s interesting, but it certainly draws out the battle for years and years, and let’s face it, the pro-lifers would have no guarantee that they’d ever get rid of those exceptions.
In politics, there are few guarantees of anything. Still, the prospect is not all that bleak. A few years of hard work at educating the public could make a big difference in people’s attitudes.
How do you figure that?
Well, why is it that popular support for those exceptions exists? It isn’t because people doubt the humanity of the fetus. It is because they have been influenced, often unconsciously, by one or another form of situation ethics. People have been picking up the habit of looking at moral decisions in a bad way. Instead of looking at the decision in the light of ethical rules and principles, they have been encouraged to think in a series of “pictures”. In picture #1, for example, we might see a family coming apart at the seams over the prospect of a deformed child, soon to be born. In picture #2, we see the same family, this time happy and loving, with no such child in existence. We are
asked which picture is better. Naturally, we choose the second. A popular form of situation ethics consists in one very simple rule: you may do whatever is necessary to make the better picture come true; indeed, this is supposed to be “ the loving thing to do”.
What’s the matter with that? If it makes people happier …
You just put your finger on the tragic delusion. There is no God-given right to be “happy” at the expense of other people’s lives. If we respect the rights of others, there are limits on what we may do to banish tragedy, suffering, or hardship from our surroundings. In any genuine ethics, the existence of such limits is the first principle. Certain courses of action are simply wrong, no matter what the situation, and no matter how rosy the picture which could be made to come true by doing wrong. These intrinsically wrong actions include, of course, all those which violate the rights of another. Now I don’t want to get off into a lecture on ethics. My point is simply this: genuine morality supports individual rights, whereas in situation ethics no one really has any rights at all. If you are nice, if you are wanted, if you fit into everyone else’s picture of a happy existence, you are left alone; but if you are troublesome, a cause of unhappiness, an eye-sore, you are a target for extermination.
I guess you are saying that this popular situation ethics is really inconsistent with the rule of law.
Exactly. Our whole legal system depends upon the fact that certain actions are crimes, regardless of the circumstances. The circumstances may harden or soften the degree of punishment, of course, but that cannot change a crime into a non-crime. Hence our lives have some protection. But in a system of law based on situation ethics (if such a thing is possible), a murder would not be a crime at all if you had a good enough motive. Hence no one would have any rights.
So these two things stand and fall together: the absolute wrongness of certain actions, and the existence of individual rights. You can’t deny the former and still keep the latter. I have the feeling that once people understand that, they will see the inconsistency of these pop versions of situation ethics. They will start to understand the “hard cases” on principle instead of in pictures, and a lot of the political sting will go out of those cases.
I’m beginning to hope you’re right. This has been a sobering conversation.
Theme # 4: Human Life Legislation
and the Freedom to Use Contraceptives
The real target of the anti-abortion movement is reproductive freedom itself. Their leaders in Congress have sponsored Constitutional Amendments which would outlaw the most effective forms of birth control, such as the IUD and some birth control pills. These methods of birth control can prevent the implantation of the fertilized egg, thus denying it the “right to life.” So under the Human Life Amendment, some forms of birth control become the equivalent of homicide.
This part of the counter-attack could be very persuasive with many people. Americans are afraid of government intrusion into their private lives. They favor birth control and are hazy on the distinction between contraceptives and abortifacients. People also tend to forget that being-human or not-being-human is a matter of all or nothing, like being-a-citizen or not-being-a-citizen; they tend to think of it rather as a matter of degrees, like being-cold or being-hot. As a result there is much confusion: people think that the early embryo is somehow human and yet somehow “less human” than the older embryo or fetus. Hence they think of very early abortion, induced by drugs, as less objectionable or as being more like birth control.
I guess that describes me. I think it is a matter of degree. But before we discuss that, I would like to get clear on the main issue. Is it true that the pro-life movement is out to stop all the best and most effective means of birth control?
Of course not. The most popular and most effective form of birth control today is sterilization. It is estimated that either the husband or the wife has been voluntarily sterilized in fully one third of all American married couples. And on their choice to do that, the Human Life amendment would have no impact at all. There are also five other popular forms of birth control on which the Amendment would have no effect: the diaphragm, the cervical cap, the condom, spermicidal foam or jelly, and natural family planning. So the claim that this Amendment is a threat to the “reproductive freedom” of American couples is a barefaced lie.
Well, it may be an exaggeration, but I notice you didn’t mention the Pill and the IUD. Do the pro-life people have a problem with them?
Everybody has a problem with them. I suppose you’ve read about the side-effects?
I mean in connection with abortion.
Well, there is a theoretical problem. Whether there is also a practical, legal problem is another question. Do you mind if I talk about the theoretical problem first?
All right. Every piece of human life legislation which is intellectually acceptable to the pro-life movement deals with the protection of unborn human life “at every stage of development,” or “from fertilization,” or “from conception.” The legislative record will show that these phrases are intended to be equivalent. So it is the movement’s intention that the right to life should attach even prior to the new child’s implantation in the mother’s uterine wall.
Hence there is a prima facie conflict between the child’s right to life and the mother’s use of those forms of “birth control” which in fact do not prevent conception (fertilization) from occurring but merely prevent the already conceived child from implanting. Medical science leaves little doubt that such forms of “birth control” include the IUD, the Morning-After Pill, and some varieties or the oral contraceptive Pill (especially mini-Pills and low-estrogen Pills).
Well, then, the pro-life people are against the wall! Planned Parenthood will put out the word that a Human Life Amendment means the end of the Pill and the end of the IUD, and if I know anything about American politics, the Amendment will be dead in its tracks. Even if the pro-life people go with O’Steen’s idea, they’ll never get their definitive Amendment.
Don’t be too sure. The Pill and the IUD are more vulnerable than most people realize, because of the women’s health issue. People read those Patient Package Inserts on the Pill and it’s quite an eye opener. Or they pick up the newspaper and read about the horrors of the Daikon Shield, an IUD that finally had to be taken off the market. So the pro-abortion people could be shooting themselves in the foot, if they stake their case on the marvels of the Pill and the IUD.
However, I do agree with you to this extent: the pro-life movement has no more urgent task than to formulate a strong, unified, and politically credible response to this attack and to this prima facie conflict between the right to life and certain forms of birth control.
Have they come up with anything?
They haven’t been able to agree. Instead of a united response, three divergent responses have surfaced in various quarters.
Oh? What are they?
Well, the first response I call the “cut and run’’ strategy. It proposes to avoid the whole problem by dropping the word ‘fertilization’ and allowing conception to be confused with implantation. The aim is to make sure that the right to life attaches only after, not before, implantation has occurred. Thus the conflict with abortifacient (counter-implantational) forms of birth control would be avoided.
Certain politicians are already calling for this strategy.
Can the pro-life people accept it?
Figure it out for yourself. Recall that the movement’s best political asset is its logical cogency. It does not oppose this or that abortion technique because it loathes this or that nasty procedure. It opposes anything — drug, knife, device, machine, anything — which violates the right to life of an innocent, unborn human being. Therefore, if the movement were to adopt this strategy and yet retain its logical cogency, it would have to have some convincing basis for saying that the product of fertilization is not a human being prior to implantation but is a human being thereafter.
Maybe it doesn’t have a soul until then.
How in the world would you convince people of that? The Bible is silent on the subject, and you don’t want to bring a lot of religion and theology into a political issue. You would need a philosophical or scientific basis for the distinction.
Does any such basis exist?
Two attempts have been made to provide one.
The first attempt is based on the capacity for human experience or self-consciousness. It is said that an entity which does not have this capacity cannot be a human being. We can’t precisely locate the emergence of this capacity within the process of gestation, it is said, but we are sure that it cannot be present at the very beginning.
Why is that?
Because, they say, the single-celled fertilizatum is too small and too simple to have this capacity, which requires a certain differentiation of tissues and hence a complexity of bodily parts.
So, since the all-important capacity for experience or consciousness is absent at the beginning but present at the end of gestation, and since implantation is the only convenient, objective dividing line within gestation, it makes sense to seize upon implantation as the point at which legal protection shall attach.
That does make sense.
I’m afraid it doesn’t. The human fertilizatus is anything but “simple”. It possesses the whole, unbelievably complex
human genetic complement, which is the radical basis for all our physical capacities and many of our mental ones. Now the proof that even the one-cell fertilizatum has the capacity for human experience is quite simple: just leave it alone and see. If the individual which develops from this cell has such experience, then the capacity has been there.
Oh, come now. Surely they had in mind a stricter sense of ‘capacity’ than that. There would at least have to be some brain development.
Then implantation makes no sense whatever as the dividing line. It is either too late or too early. On the one hand, by the time the child implants (at 7 to 12 days of age) it is no longer single-celled but has the “blastula” shape and consists of over 100 cells. So the “dividing line” may be too late. On the other hand, if you insist on specialized brain tissue, the “dividing line” is too early, since the brain hemispheres do not emerge clearly until some weeks after implantation. So the alleged line is ad hoc politics, not science.
But surely a thing can’t be a person unless it has consciousness. This gets back to what I said before about humanity’s being a matter of degree. I know that the early embryo is genetically human, so I would say that it is “somewhat” human. But a person is more human than that. A person has consciousness.
You had better think more carefully about some everyday facts. Any argument which tries to include consciousness in the definition of a human person falsifies our nature. It is at once the glory and the weakness of a human person that he or she does not have “consciousness” by definition. One must acquire it in early life, surrender it nightly in sleep, struggle back to it each morning, and defend it courageously against the powers of disease, brain damage, and coma. A definition which reads
Karen Anne Quinlan out of the race, along with every sound sleeper, is preposterous.
Now about this business of degrees: you are just confusing two different senses of the word ‘human’. In one sense, we use ‘human’ to designate the members of our race or species. That is the relevant sense here, and it doesn’t admit to degrees. In the other sense, we use ‘human’ to mean what is best about us, as when we say, “Can’t you be a little more human in your approach?’’ or else to mean what is most typical of us, as in “To err is human.” This admits to degrees, but it is not what we are talking about.
You always have a way of throwing me off base. It is all very neat and clear, what you say, but I still think there is more to be said on my side.
Well I don’t know exactly.
Well, until you think of something, why don’t we go on to the other basis which is sometimes suggested?
This argument is based on twinning and tripleting and so forth. The right to life attaches to the human individual. The individual or “person” has a unity; he cannot turn into a “crowd”. So the argument is this: since the pre-implantation embryo has the capacity, under certain circumstances, to become two or more individuals, it cannot itself be an individual, and so it lacks the individual’s right to life.
That’s powerful. How would you answer that?
The argument makes two wrong assumptions. First, it assumes that “unity” is some kind of positive quality, like tight glue, whereas in fact unity is nothing but the absence of division. Second, it assumes that the indivisibility of a person is the indivisibility of his body, whereas in fact they have nothing to do with one another.
I’m not sure I follow you.
I’ll explain: every part of my body is “me” so long as there is no actual division. The fact that my arm could be amputated does not take away the fact that it is here and now “me”. It will cease to be me only when it is actually amputated. Similarly in the embryo: a cell or group of cells is part of that one embryo, unless and until some actual separation occurs. Now back to me: to be sure, “I” am individible. When my arm is cut off, “I” am not suddenly in two places. “I” am still in one place, and the arm, wherever it is, is not longer “me”. But that fact only proves that the indivisibility of a person is not the indivisibility of his body. So the mere fact that an embryo can be divided is no more an argument against its personhood than the amputability of my limbs is an argument against mine. Nor does it matter in the least that the severed part of an embryo, unlike my arm, can become another person. If God chooses to make my severed arm another person, that event has no more bearing on my being a person than God’s decision to make Eve out of Adam’s rib had on his being a person.
Uh huh. So you would say that neither of the attempts to make a basis for picking implantation as the point where legal protection should begin makes any sense.
That’s right. As I said before, the pro-life movement cannot succeed politically, if it throws away its logical power. That power turns upon a crystal-clear inference:
- a human person is an individual of the human species;
- the product of fertilization is a living individual, not an organ of the mother, and is genetically human;
- therefore the product of fertilization is an individual of the human species;
- therefore the product of fertilization is a human person.
The “cut and run” strategy destroys that inference and so destroys the movement’s logical assets.
So you think the pro-life people have no choice but to reject that strategy.
Well, what other strategy is there?
A second response is more courageous. I call it the “bite the bullet” strategy. It proposes to accept the charge that a Human Life Amendment will outlaw the IUD and some of the Pills and, indeed, to make a boast of it. It proposes to tell the American people that they have been lied to long enough. They have been told that these things are safe and that they are contraceptives. The truth is that they are not safe and that they are abortifacients. So, from the angle of women’s health alone, the Human Life Amendment will have a beneficial impact on birth control. It will drive bad medicine off the market.
Is that all true?
Well, the part about the Pill and the IUD being bad medicine is true. In fact a militant feminist named Barbara Seaman has written a best-seller, The Doctors’ Case Against the Pill (Doubleday, 1980), which makes this very point. I suggest you read it.
But the part about the Human Life Amendment outlawing these things is not true.
You heard right. As I have been saying right along, a Constitutional Amendment is not a criminal statute. It will not “outlaw” any drug or product.
Don’t split hairs. You know very well that as soon as your “definitive” Amendment is ratified, the Congress and the states will have to pass implementing statutes, and those will be criminal statutes, and it will be those laws which ban the IUD and the rest.
I’m not splitting hairs. I’m telling you that those laws won’t have to say one word about the IUD. And I’ll prove it to you.
Yes or no, is it illegal to shoot people and stab people to death?
Yes, of course.
What kind of statute makes it a crime to shoot people to death, stab them, etc?
A homicide statute.
Correct. Now, yes or no, do the homicide statutes outlaw guns and knives?
By George, they don’t.
So in other words the law can outlaw what the gun might do without outlawing the gun. Similarly, the laws implementing the Human Life Amendment will outlaw what the IUD might do without outlawing the IUD itself.
But couldn’t a woman be prosecuted for wearing an IUD, because of what it might do?
Under what statute?
Under the statute that makes abortion a crime, nitwit.
How could she be? Look, it is in the nature of a criminal statute that there can be no prosecution of anyone for a crime without antecedent proof that the crime has occurred. Now with surgical abortion, it is often possible to get such proof: complications set in, or a nurse blabs, or a repentant accomplice goes to the Law; the baby’s corpse turns up, or the condition of the mother gives proof that the deed was done. But where an IUD is worn, or a pill is taken, there isn’t even any proof that conception-occurred, much less that abortion occurred. So prosecution is impossible.
And again, remember the analogy: you can’t be prosecuted for murder just because you are wearing a gun.
Yes, but we have restriction on guns; you have to have a permit to wear one. And there are some kinds of knives which are illegal to carry, like a switchblade. Couldn’t the law make the very wearing of the IUD the crime?
Sure, a law could do that, but that’s the whole other issue. That’s the point I have been trying to get you to see. You are now talking about a different crime.
All right, confound it, that’s true. But you are still nit-picking. What I want to get out of you is a straight answer to this perfectly simple question: if the “ideal” Amendment is ratified, won’t this other law be just as inevitable as the basic anti-abortion law itself?
Why would it be?
Well, because an IUD has no other use but to cause abortion. This is where your gun-and-knife analogy breaks down. Guns and knives have other uses besides killing people. If they didn’t, you can bet they would be illegal. So stop dodging the issue.
Look, friend, the law is complicated. It is the law which is full of dodges, not me.
Now carry my gun analogy one step further, and you will see that it does not break down, even on the supposition that the IUD has no other use but to cause a crime. Think of an IUD in the womb as serving the same function as a hidden shotgun mounted behind the door of your house, set to go off automatically at the entrance of an intruder. Now such a gun, you must admit, has no purpose but to kill someone. Nevertheless, such a gun was not illegal until recent years, despite the homicide statutes. It took many years and a separate statute to make it illegal. So there is nothing automatic or inevitable about the disappearance of the IUD in the wake of a Human Life Amendment. The Amendment would justify a ban of the IUD, but that is all. The actually banning, if it happened, and where it happened, would come by way of normal legislative and electoral politics, the normal process of democracy, in which the defenders of the thing would have had a fair shot at winning.
Now, in all I just said, I granted you free, gratis, your assumption that the IUD has no other uses. Frankly, I hope that this assumption is correct, because it would make the banishing of this misogynistic contraption a whole lot easier, once the Amendment was in place. But you had better believe that, if and when the day comes that IUDs are threatened, the pharmaceutical companies will start finding other uses for them. They will be found to cure warts, fight rheumatism, and prevent baldness, whatever
it takes to keep them on the market. The same will be done with the mini-Pill. And in fact most forms of the Pill have plenty of other uses. No one has ever denied it. Even the curette would stay on the market, under a Human Life Amendment, because it has other uses. I have that on the authority of Dr. John C. Willke, who is the President of the National Right to Life Committee!
You know, it is just beginning to dawn on me what you are really saying about this whole theme of “impact on birth control” in the pro-abortion propaganda. You’re saying it’s poppycock because it’s too OPTIMISTIC. You’re saying that even if we had the ideal Amendment in place, the chances of outlawing the Pill and the IUD, simply on the ground that they cause abortion, are dismal. At first, I thought you were trying to dodge the issue and that you were criticizing the “bite the bullet” strategy because you thought the whole pro-life movement should dodge it too. Now I see that you’re criticizing the strategy precisely for sharing the optimism of the ACLU!
You’ve got it, friend.
All right, now, if the “cut and run” strategy is no good, and “bite the bullet” is no good, what response do you recommend?
Call a lawyer.
I beg your pardon?
That’s what I call the third strategy, “call a lawyer”. It’s what I’ve just been presenting to you. According to this strategy, what pro-lifers should say, when they are accused of backing an Amendment which would ban the IUD, etc., is that unfortunately the Amendment would have no such effect. That’s what the electorate needs to hear, because it is all too true.
Do I infer correctly, then, that you would advise the pro-life movement to just give up on the abortifacients, because they are here to stay no matter what?
My job is to analyze, not to give advice. But your inference is dead wrong.
I said—no, in fact, you said, correctly, that the chances of getting rid of these things simply on the ground that they cause abortion are very poor. The way to get rid of them, in my opinion, is on grounds of women’s health. On that ground, it doesn’t matter how many uses they have. It doesn’t matter for what purpose the Pill or the IUD is prescribed, because the side-effects—the health issues—is still there, even when the purpose is benign. A woman can be given the Pill to clear up her acne and still get a blood clot from it, a cervical cancer, a tumor, or a heart-attack.
Now with the new wave of abortifacients, which the drug companies are promising and which aren’t on the market yet, the case is different. The passage of a Human Life Amendment might keep them from ever coming on the market, by a kind of chilling effect. But the Pill and the IUD are already here; they are multi-purpose, or will be alleged to be; so for them, I think, the only promising attack is along health lines. I envision it as a second front, so to speak, in the pro-life war. And I think the chances of winning on that front are improved, the more we keep abortifacients strictly as a women’s health issue, and the less we tie them (in-directly) to the politics of the Amendment.