A Letter on Abortion and Roe v. Wade
How on earth do I convince you to read 3,000 words on these controversial topics?
I will attempt to initially earn your interest by first introducing you to a few interesting polls. Given that the Supreme Court might overturn Roe v. Wade with its upcoming decision in Dobbs v. Jackson Women’s Health Organization, it’s relevant to note that most Americans seem to support Roe. A NPR/PBS NewsHour/Marist Poll found that 77 percent of Americans want the court to uphold Roe, a Harvard CAPS-Harris Poll put that number at 54 percent, and a Fox News poll placed the number at 65 percent. But when we dive deeper into the data, we also learn that, simultaneously, Americans want to see restrictions on abortion which are impossible under Roe.
For instance, when Harvard CAPS-Harris pollsters provided the additional context that Roe allows elective abortions through the first 24 weeks of pregnancy, 56 percent of those polled said they support either overturning the decision or moving the viability threshold from 24 weeks to 15 weeks. Meanwhile, according to a Gallup survey, only 28 percent of Americans think abortions in the second trimester should be legal while only 13 percent think they should be legal in the third trimester; similarly, an Associated Press/NORC poll found that only 34 percent believe abortion should be legal in the second trimester and only 19 percent think they should be legal during the third. Given that Roe created a nationwide policy of allowing abortion-on-demand up until the point of viability, it is surprising and contradictory that Americans overwhelmingly oppose abortions in the second and third trimester yet still voice support for Roe.
Also interesting are the results to this all-important question: when does human life begin? Here is the breakdown from the NPR/PBS NewsHour/Marist poll:
Conception (38 percent)
First eight weeks of pregnancy (8 percent)
First three months of pregnancy (8 percent)
Between three and six months of pregnancy (8 percent)
Fetus is viable (14 percent)
Birth (16 percent)
Unsure (8 percent)
So, for nearly two-thirds of Americans, abortion prior to the point of viability is an act which destroys a living human being, yet many of the same people support a legal structure which permits such destruction.
While I prefer to view questions about the beginning of life through the lens of science, I believe it is legitimate for religion to inform such debates. To quote Michael Gerson, a former White House speechwriter, it “rigs the debate” to argue that utilitarianism or the justice of John Rawls can be the basis for convictions about human worth but not centuries of religious thought. Some faiths teach that life begins at conception, while others maintain that the soul is delivered to the newborn with the first breath of air. According to Jewish Talmudic law, for instance, only when the head of the child is delivered from the birth canal does that child gain equal rights to life as the mother.
I may be Jewish, but I have a tough time accepting the argument that there is a big difference between a newly-born baby eight hours out of the womb and a fetus eight hours away from being born. As the philosophers Robert P. George and Christopher Tollefsen argue in Embryo: A Defense of Human Life, “We shouldn’t regard some humans as inferior based simply on their age, size, location, stage of development, or condition of dependency.”
I first started thinking about the beginning of life in an eleventh grade biology class taught by Bonnie Luepkes. I remember that my textbook made things pretty clear: human development begins when a male gamete (spermatozoon) unites with a female gamete (ovum) to produce a zygote. This single-cell zygote, with its 46 chromosomes, is a living member of the Homo sapien species in the earliest stage of development. As George and Tollefsen write, “The embryonic, fetal, child, and adolescent stages are just that—stages in the development of a determinate and enduring entity—a human being—who comes into existence as a zygote and develops, if all goes well, into adulthood many years later.”
But some object to this line of argument. Philosopher Michael Sandel asserts, “Although every oak tree was once an acorn, it does not follow that acorns are oak trees, or that I should treat the loss of an acorn eaten by a squirrel in my front yard as the same kind of loss as the death of an oak tree felled by a storm. Despite their developmental continuity, acorns and oak trees are different kinds of things.”
Sandel makes sense. He is correct to question whether we should value the acorn (i.e. the human embryo) like we do a fully grown oak tree (i.e. the human adult). But George and Tollefsen also make a good point when they write, “This analogy only works if we disregard the proposition that all human beings, irrespective of age, size, stage of development, or condition of dependency, possess equal and intrinsic dignity by virtue of what kind of entity they are and not by virtue of any accidental characteristics.”
In other words, when we extend the metaphor a little bit further, we see that, if the proper analogue of an adult is an oak tree, the proper analogue of a child must be the oak sapling. If Sandel’s analogy were on the mark, argue George and Tollefsen, we would respond to the death of a young child as though we would respond to the death of an oak sapling. And, truth be told, we don’t mourn the death of an oak sapling as we mourn the death of a young child.
At the end of the day, oak trees have value because of “accidental characteristics” (e.g. their magnificence, sentimental value, summer shade). Acorns and saplings do not have these accidental properties yet, so we do not experience the same sense of loss when they are destroyed. Unlike oak acorns, oak saplings, and oak trees, “all members of the Homo sapien species possess equal and intrinsic dignity by virtue of what kind of entity they are and not by virtue of any accidental characteristics (e.g. age, size, stage of development, or condition of dependency),” write George and Tollefsen.
It’s now time for me to put my cards on the table. Although I believe the act of fertilization marks the beginning of a new human life, I don’t believe the one-day-old zygote has the same value as an eight-month-old fetus, let alone an eight-day-old baby. Indeed, I don’t believe this embryo has actual value until the process of gastrulation has taken place.
The phenomenon of “twinning” is not perfectly understood, but we know that, prior to gastrulation, in the first few weeks after fertilization, before the primitive streak has been formed, an embryo may divide into two (or more) distinct organisms. How can an embryo have a soul if that embryo can turn into two or three or more other embryos? Simply put, something potentially two cannot really be one. But once gastrulation has taken place and the time for twinning has passed, I believe it is immoral to kill this new human life.
Before going on, I want to make clear that readers will have reasonable (indeed, very reasonable!) disagreements with me, and I’m more than okay with that. Just as I have a tough time accepting that there is a big difference between a newly-born baby eight hours out of the womb and a fetus eight hours away from being born, I suspect most readers will object to my claim that a three-week-old embryo has the same moral worth as a fetus in the third trimester of pregnancy. While I would love to see an America where young embryos have value, people make very good arguments that we should place the marker later on in the pregnancy, such as the moment of viability or when a heartbeat happens or when brain waves begin to exist or when the fetus first feels pain. I’m particularly moved by the pain threshold, which is at the center of the Mississippi law being debated in Dobbs v. Jackson Women’s Health Organization.
Pain perception is associated with thalamic function, and we know that connections between the fetus’s spinal cord and the thalamus region of the brain form between twelve and eighteen weeks after conception. Through reading the work of Maureen Condic, an associate professor of neurobiology at the University of Utah, I learned about Stuart Derbyshire, a brain-mapping researcher, who was, until recently, considered a “leading voice against the likelihood of fetal pain.” Derbyshire was one of only two neuroscientists on the panel that produced the 2010 Royal College of Obstetricians and Gynecologists report that rejected the possibility of fetal pain before 22 weeks. Therefore, it is particularly noteworthy that, faced with mounting scientific evidence to the contrary, Derbyshire has changed his mind. He now believes a “pain experience mediated by the developing function of the nervous system [exists] from as early as twelve weeks.”
Others argue that humans only gain moral worth once a brain develops and that, prior to that point, we have a human organism but one lacking the dignity and rights of a person. Defenders of this viewpoint to the fact that modern medicine treats the death of the brain as the death of the person. I’m also moved by this opinion, but George and Tollefsen make a strong counter argument: “The irreversible collapse of the brain destroys the capacity for self-directed integral organic functioning of human beings who have matured to the stage at which the brain performs the key role in integrating the organism. By contrast, although an embryo has not yet developed a brain, her capacity to do so is inherent and developing, just as the capacity of an infant to develop her brain sufficiently for her to actually think is inherent and developing.”
These are tough, complex debates. Different sides make equally strong arguments in defense of their views. In many ways, this entire discussion seems as intractable as it is important. As Washington Post columnist Eugene Robinson writes, “For those who think abortion is murder, how could there ever be compromise?”
Robinson is wrong. I’m a perfect example of someone who inhabits a middle ground.
Given my views about the beginning of life, I should also believe that a woman who procures an abortion ought to be prosecuted as if she had hired a gunman to murder her child. But I don’t believe this to be true at all. Period.
Pregnant women face a unique burden, and public policy should reflect this reality. As Michael Gerson writes, “We must balance a public responsibility to value human dignity and a public duty to respect the autonomy of those who become pregnant.” My confusion on this topic is actually quite common in America, which gets me to why we should want to overturn Roe V. Wade and return these debates to where they belong: the legislative process at the state and local level.
It is possible to support the right to abortion but also think that Roe v. Wade was a mistake. Indeed, none other than the late, great Ruth Bader Ginsburg thought it was a bad decision, which distorted American politics, heightened political polarization, and made the Supreme Court more of a partisan battlefield. In 1985, Ginsburg wrote in the North Carolina Law Review that “the Court ventured too far in the change it ordered and presented an incomplete justification for its action….Heavy handed judicial intervention was difficult to justify and appears to have provoked, not resolved, the conflict.” Seven years later, this time writing in the New York University Law Review, Ginsburg said that Roe was “breathtaking” in scope and wondered if more “measured motions” would have been appropriate. When speaking to students at University of Chicago Law School in 2013, she argued that Roe was too far-reaching and would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures.
Her objections to Roe stem from the fact that, in writing for the 7-2 majority, Justice Harry Blackmun constructed a complex analysis based on the three trimesters of pregnancy. He argued that the state’s interest in protecting the new life was minimal in the first trimester but increased as the pregnancy progressed. Blackmun didn’t just declare unconstitutional the most extreme brand of law in the nation (i.e. Texas), he fashioned a set of rules that overturned fifty state laws. Blackmun wrote what was, in many ways, a new law.
Justice Ruth Bader Ginsburg was not alone in criticizing this judicial overreach. Many pro-choice legal scholars agree that Roe was a terrible decision as a matter of constitutional law and that it has warped our politics. Edward Lazarus, a former clerk to Justice Blackmun, writes, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose and as someone who loved Roe’s author like a grandfather….A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent.” In an op-ed titled “Shaky Basis for a Constitutional ‘Right’, University of Pennsylvania law professor Kermit Roosevelt writes, “As constitutional argument, Roe is barely coherent…By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.” Law professor John Hart Ely, a former clerk to Chief Justice Earl Warren and author of Democracy and Distrust, which is regarded as one of the most important academic works on American constitutional law, supported a right to abortion, but he didn’t believe that right was inferable from the language of the Constitution. In a Yale Law Journal titled “The Wages of Crying Wolf: A Comment on Roe v. Wade, Ely argued that Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.”
Washington Post columnist Ruth Marcus disagrees with these analyses. She writes that it is ridiculous to suggest, as Justice Brett Kavanaugh has done, that the Constitution is “neutral” on the matter of abortion. “The vision of getting the courts out of the abortion-deciding business sounds so reasonable and alluring,” writes Marcus. “It is also wrong, misleading, and dangerous. Declining to protect the right to abortion is no more a decision not to take sides than is declining to protect the right to vote or the right to worship freely or the right to own guns.” Marcus acknowledges that abortion is different from these examples because abortion is not mentioned in the Constitution, but she then makes this convincing point: “There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. These include the right to travel, the right of parents to educate their children as they choose, the right to contraception, and the right to marry a person of another race.
Marcus is absolutely right to argue that just because a right isn’t mentioned in the constitution doesn’t mean the right doesn’t exist. In Griswold v. Connecticut, a case from 1965, the Supreme Court correctly overturned a state law forbidding the use of contraceptives by married couples. But privacy doesn’t legitimate illegitimate acts. After all, murder can take place in private, but that doesn’t make it legal. There are legitimate debates to be had as to whether the act abortion ends the life of the youngest and most vulnerable human beings.
These debates are difficult and complex, but we must have them. This issue must be debated in the public square. Thrusting the Supreme Court to the center of abortion politics, as Roe did, has damaged the Court, our national politics, and the judicial nomination process. We should return this issue the political process where public policy can be better aligned with public opinion. The immediate aftermath of the overruling of Roe will be messy, contentious, and ugly. It won’t be settled for a few years. But then, overtime, as voters make their voices heard in local elections throughout the country, the issue will settle and, eventually, recede to the background. Serious objections have lasted half a century. It will strengthen America if those objections were finally heard, debated, and resolved.
I’ll end this with an interesting factoid that I learned when doing research for this letter. The Charlotte Lozier Institute produced a report in 2014 that analyzed abortion laws in 198 countries. It turns out that the United States is “one of just seven out of 198 countries that allow elective abortions after 20 weeks of pregnancy.” Two of the others are China and North Korea. By contrast, 39 out of 42 of European nations—including France and Germany—bar elective abortions at 15 weeks or less. Not one European country permits them through all nine months of pregnancy, as do seven states and the District of Columbia. It doesn’t make a person to be an extremist to wonder: shouldn’t we join the company of France and Germany instead of North Korea and China?