Black, White, and Shades of Gray: Thoughts on Abortion

Some readers of my “state rape” post of a couple of weeks ago might conclude that I am frothingly pro-choice.  I’m not.  Some readers who see that statement will immediately think that I’m pro-life.  I’m not.

At least, not as those terms are used in the contemporary abortion debate.

Many years ago, I read a powerful, well-written book:  Abortion & the Politics of Motherhood , by Kristen Luker.  At the time, I read it because I was interested in the politics of social movements, and, being a leftist of sorts, I knew before I read it what the right outcome was going to be.  But the book left me with a much more critical perspective on both sides–I like to think of it as “a pox on both their houses.”

Nuance is the thing that’s missing from the entire abortion debate, and Luker gave it nuance.  I thought of this again this week in connection with two events.  First, my oldest son reposted on Facebook a recent article that’s been making the rounds since it was published online in the Journal of Medical Ethics.  The article is titled “After-birth abortion: why should the baby live?” and it is truly painful to read.  It’s quite a short article, and easy to read, if not easy to stomach.  Read it all the way through, though.

Here’s my initial response on Facebook in all its first-draftiness, after I had read the article through (pen in hand):

OK. I’ve done a first read, and I still think it’s a reductio. But going deeper, it looks like there are some assumptions being made that I find troubling.

First: this paper is, I think, written by utilitarians. Utilitarians believe that you can quantify goods. I’m not sure I believe that, but it’s implicit here, so let’s go forward on that assumption.

Second: The reasoning works like this.
(1) A person is a being that can form goals and expectations (Not all persons are human, and not all humans are persons);
(2) because a fetus cannot form goals and expectations, it is not a person;
(3) because a non-person cannot form goals and expectations, no harm is done to them by terminating their existence before they can form such goals and expectations;
(4) Thus abortion for the sake of the family’s “convenience” is OK (the family is made up of actual persons, and the moral value of persons always outweighs the moral value of non-persons).

(1) A newborns, like a fetus, cannot form goals or expectations (when this changes is open to question, as the authors point out in their conclusion).
(2) Since a newborn is a non-person, see [A](3 & 4).

(1) Since the moral values of persons always > the moral values of non-persons, in instances where adoption would cause pain to persons, termination of the non-person is preferable.

Third: The problem, it seems to me, is that the paper begins with a bogus assumption. See the first sentence in the ABSTRACT. Yes, it is accepted, but no, it is not WIDELY accepted for other than medical reasons. The world painted in this line is one in which women just “pop round to the clinic” to take care of the weekend’s careless sex, and that is (in my limited experience) not a valid picture. In actuality, most abortions are unpleasant, morally-wrenching, values-conflicting events. Granted, not all. In fact, the rhetoric of pro- and anti-choice forces have distorted the picture considerably and stripped the matter of its ambiguity.

If we are willing to look at the harder picture–that in fact a fetus DOES have value, but that this value is virtually impossible to assess, then the whole binary argument crumbles. I personally suspect that the personal moral value of the fetus changes over time, from near-0 at conception to 1 sometime nearer birth. I don’t think it’s a linear build, but I don’t KNOW. I would also make the point that this personal moral value is =/= to the value placed on the fetus by the parents.

The Supreme Court, which realizes that it is not competent to decide when that personal value approaches 1, simply notes (as it does in many other areas) that there is no legal history of individuals who have not been born being treated as persons. The court’s opinion in Roe includes the following telling statement: “[N]o case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.” 410 US 133 at 157.

Thus, in some ways it is clear that the law is arbitrary. But the law is arbitrary in many respects: those under 18 are not considered competent to make contracts, to vote, to purchase alcohol. The law doesn’t claim to know these things, and it doesn’t claim to know when personhood begins. However, it is clear that persons who have been born ARE persons “within the meaning of the Fourteenth Amendment.”

In sum: It’s not a binary choice, and that is why it’s pretty clearly wrong (from our cultural perspective) to kill babies, and why the logic of this article seems so wrong. It pays to listen to one’s intuition…

In retrospect, it’s not quite as clear that this was necessarily the work of Utilitarians.  But in other respects, I still think I’m correct.  Most important is to break off any discussion of the ethics of abortion (and post-birth abortion) from the rhetoric of abortion.  I’m pretty sure a 2- or 4-cell blastocyst is not the same thing as a third-trimester fetus.  But that’s all I’m pretty sure of.  I’m also reasonably confident that I understand the legal aspects.  So that’s one thing.

The other things that got me thinking about this stuff is the 1992 film, Rain Without Thunder.  It’s available via Netflix and probably from some other sources.  It posits a future (identified as 2042) in which, at least in the state of New York, abortion—except to save the physical life of the mother—is treated as murder.  The “terminator” is a murderer, of course, and the women are  accessories to the murder.  There is a weird moment in the film when a woman has been released because post-abortion analysis of the fetus shows that it was a 9-week fetus, but the mother had been pregnant for 12 years at the time of the abortion.  Consequently, since she could not have been guilty of murder, she is released—only to be promptly rearrested for attempted murder (since she had confessed to having the abortion, no trial is needed, as the DA says.  Only sentencing).

I’m not quite certain how I came across the film, but it too is worth watching.

Now put the film and the article together.  One, reductio or not, is about a failure to value the fetus, and the logical consequences that flow from it.  The other, a polemic (entertaining, but still a polemic) is about what happens when we value the fetus too much (and yes, I cringe at writing that).

I repeat:  a pox on both their houses.  Human biology and human sociology are complex, and attempting to reduce most things to “this is always right, that is always wrong” gets us in a lot of trouble.  Thou Shalt Not Kill sounds really good.  But it’s just like (pardon the law school humor) hearsay.  Hearsay is an out of court statement offered for its truth value.  Hearsay is inadmissible as evidence.  But if you look at the hearsay rules, there is so much that qualifies for one reason or another as not hearsay—and so many special exceptions to the hearsay rule itself—that pretty soon you’re left holding Swiss cheese.  Thou shalt not kill, except in time of war, in self-defense, to punish the murdered…the exceptions tend to swallow the rule.

So it is with abortion.  Unfortunately, you cannot value all blastocysts the same way (though I’m willing to entertain the suggestion that at some unknown point, a fetus gains a right to progress to birth.  Not a very satisfying answer.  But is it unsatisfying enough that a woman should be condemned, days after conception, to carry to term—and raise and care for—the child of her rapist?  Ah.  That’s where the problem is, isn’t it.

A self-proclaimed blue-haired Marxist friend of mine, when I lived in Chicago, used to love to pump her fist in the air and shout “Contradiction!” when something like this came up.  That was a shout of triumph.

I’d prefer a whisper of nuance.  An admission that we’re not quite sure, an agreement that we will forgo cant, and deal with things carefully, carefully on a case by case basis.  Unsatisfying?  You bet.  If you have a better answer, though, I’d like to hear it.



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