Conservative Credo: Abortion Rights
ABORTION AS SELF-DENIAL
In a rationalist system of ethics, every basic principle must be stated in universal terms in which "I" am denied a privileged perspective. I may not, for example, make rules that apply to everyone but me--only the Congress of the United States is free to do that. If I advocate an unrestricted right to abortion, then, it must include my mother's right to have aborted me for whatever reason she chose. This is a variant on the familiar right-to-life argument which goes, "Aren't you glad your mother did not believe in abortion," with this essential difference. The "aren't you glad" ploy assumes that my existence is self-evidently desirable, whereas an insistence upon a universal principle assumes nothing. Of course, abortion advocates of bad faith or limited imagination might readily assent and proclaim their willingness to die for their mother's right, but it is hard to find anyone willing to die even for a close relative, as Admetus found out to his cost. In Euripides' play Alcestis, King Admetus is told he must die, unless he can find someone willing to take his place. Everyone including his parents refuses, but when his wife Alcestis accepted death on his behalf, he was desolate.
Under normal circumstances no healthy-minded animal will commit suicide, and for happy and healthy human beings, even the contemplation of their mortality is disturbing. So it is fair to begin with the assumption that a normal person would not choose non-existence and, thus, would not grant his own mother a retroactive right to an abortion. The only counter-argument would be that "I" would not really have existed when my mother made her fatal decision. To this one must answer, "Yes, but you do exist now, and given the choice, which would you deny--your own existence or your mother's right to choose?
Imagine the situation as a kind of thought experiment with two buttons, the first labeled "unrestricted right", the second "restricted." If you push "unrestricted," then your mother would have been free to terminate you for any reason no matter how whimsical, but if you push "restricted," it means your mother would have been limited in her choice, and one can then decide under what circumstances it would be better never to have existed.
If you choose yes--only to wink out of existence--then you have denied your own being, your own particular point of view that has evolved from the moment of conception up till now. You have not only rejected one of the few universal human attributes--the desire for self-preservation, but you have in principle stripped yourself of legitimate personhood: Can we really argue with a person who has never really existed? This argument is, in a way, an analogue of Anselm's proof of God's existence--that God must exist because our mind is constructed in such a way as to conceive of him. If our conception of our self involves us in self-annihilation, then we are the opposite of all that God is; we are nescient, impotent, and incompetent--in a word, nothing.
RIGHTS, POSITIVE NEGATIVE
The debate over abortion, both in the moral and in the political dimensions, is cast in the form of a competition between rights: the rights of women versus the rights of unborn children. Judith Jarvis Thomson attempts to disentangle a woman's right not to bear a child from an intention to kill the child. Among the bizarre analogies she chooses is the case of a person whom music-lovers have kidnapped and attached to a dying violinist with failing kidneys. Surely, such a person, she argues, has the right to detach himself but not to slit the violinist's throat. (64)
There are so many elementary mistakes in Thomson's argument, it is tempting to refute them one by one. The kidnap victim really only corresponds to the victim of rape--as Thomson knows--and many opponents of abortion do make exception for such circumstances. Beyond that, the maternal relationship--even when involuntary or accidental--entails a particular, not a general obligation. It is not contractual in nature, and it is not subject to the same abstract rules that might be applied to all mankind. If a hungry man appeared at the door, a nursing mother would not be obliged to suckle him with her own milk, if that were the only food available.
But the most corrupting aspect of Thomson's argument is the bad-faith attempt to distinguish between detaching the fetus--which may accidentally lead to its death--and killing it. In the first place, the real life situation is that a nonviable fetus, if aborted by any technique, will die; in the second, some abortifacient procedures do, in fact, kill the fetus before removing it from the womb. If an infant could survive removal, according to Thomson's argument, then both mother and physicians should be obliged to keep it alive at any cost--which defeats the real purpose of abortion. Although Thomson seems to assume that it is the nine months' inconvenience that induces women to abort a child, the pregnancy is only a small down payment on a lifetime commitment of time, energy, and economic resources.
It is hard, in fact, to maintain a clear distinction between intentional killing and killing that is the accidental or secondary effect of another action. Philippa Foot argued that the more important distinction was between the negative duty to do no murder and a positive duty to assist or save persons in need. When there is a conflict between two negative duties--not killing one or not killing five people--one has to chose the lesser evil, but if the conflict is between the negative duty not to kill and the positive duty to help others, then the negative duty takes precedence. We are not justified in murdering an innocent man in order to use his body parts to save the lives of several other innocent persons. [Cf. St. Thomas, "De Homicidio," Sum Th. II ii 64] Applied to abortion, the negative duty not to kill outweighs all positive considerations of the mother's wealth, health, and convenience. In cases where one life must be sacrificed in order to preserve the other, while we may still regard the abortion is evil, it is possible to regard it as the lesser evil, if we believe that the actual existence of the other children is at stake.
POWER TO THE LAWYERS
The dialectic of rights cannot be used unequivocally to support an unrestricted right to abortion or an unequivocal right to be born, but the style of argument encourages both sides to view themselves as society's victims who need legal and political protection. In the long run, the appeal to rights has had the principal effect of empowering the national judicial system to make decisions that were once made privately and locally. In the United States, this is partly due to the role assumed (recently) by the Supreme Court that has set itself up as arbiter of national morality, a position to which it is not entitled by the Constitution, but in assuming broad interpretive powers in all questions of rights, the Court is only approximating the role of central governments in Europe, where the idea of rights has been a major instrument in constructing the vast apparatus of the modern state.
In the United States before the Supreme Court's landmark 1973 decision in Roe v. Wade, jurisdiction was left up to the individual states, as it still is for ordinary cases of murder, arson, rape--all of which were capital crimes. In their decisions, however, the justices decided that abortion was both a technical matter that required the assistance of trained professionals (physicians willing to use their life-saving skills in the service of death) and the newly-discovered right to privacy of a newly-discovered oppressed minority (pregnant women).
If the Court had wished only to provide a fall-back method of birth control--if death were the only object--the justices could have skirted the dangerous issue of rights and restored something like the Roman patria potestas, which gave fathers a theoretical power of life and death over their dependents. Since women are equal under the law, the court need only have recognized that such painful decisions could best be made within families. Parents would obviously have to make the decision for underage daughters who skipped the contraception chapter in their high-school sex manuals.
There is a sizable number of decent and moral people who could have lived with such a decision, although many would still complain against the Court's assumption that it had jurisdiction. But with a few strokes of the pen, the justices virtually eliminated the family as an organic part of society by pitting fathers against mothers, and parents against children--unborn as well as born. The Court was not content to rest on its laurels, but rapidly proceeded to protect the rights of teen-age unwed mothers. In Planned Parenthood v. Danforth (1976) and Bellotti v.Baird (1979), the majority struck down state laws requiring parental consent for minors getting an abortion. Families were not the only victims. States and local communities lost their ability to regulate the health and welfare of their people. They cannot even insist that the procedure be performed in regular hospitals, much less impose any restrictions that might stigmatize abortion as immoral or express a preference for life.
Much of the furor over abortion is attributable to the Supreme Court's hybris in declaring the law. It is as if they had decided to put Ronald Dworkin's theory of law to a test. In Dworkin's view, the courts should function as philosopher kings that decide all questions of social and political morality. As Brian Barry observed in the Times Literary Supplement, abortion laws have been legislated democratically in Europe with comparatively little public excitement, but in America, where the courts have legislated, abortion continues to be a highly divisive political issue. A national ban would have a similar effect.
What pro-lifers ought to realize is that many countries with liberal abortion laws actually include a right-to-life provision in their constitutions, as well as a general presumption in favor of life. West Germany, for example, permits abortion if pregnancy threatens the mother's physical or mental health, if the baby is likely to suffer from birth defects, or (through the twelfth week) if the pregnancy works a serious hardship, but the West German constitution begins with the ringing declaration that "Everyone shall have the right to life and to inviolability of his person."
Even if the US managed to pass such an amendment, there is nothing to prevent the Supreme Court from interpreting it in the same spirit that animates its pronouncements on the rest of the Constitution. At best, such a tactic would proceed along the lines already laid out in Sweden and France, where the legal pressures in favor of life include very generous state assistance to mothers who decide to go ahead and have their children. With assistance comes regulation, and with regulation comes the entire bureaucratic panoply of state socialism.