15 weeks

Having gotten involved in politics, the dirty little secret, I think, is this: Politicians on neither side want this issue resolved. It is a great issue to bring voters out, to get people outraged, to raise money. They don’t want it resolved.

--Carly Fiorina on The View, 9/21/2021

Carly Fiorina is correct; since 1976, her party has used abortion as an effective wedge issue -- despite the fact that prior to 1976 most Republican voters approved of Roe v. Wade. Abortion was legalized in New York in 1970 (three years before Roe v. Wade) with the support of a Republican governor [1]. Feminists have demanded that the Democratic Party incorporate pro-choice language into its platform -- despite the fact that the percentage of women who describe themselves as pro-life has never dropped below 41%, according to Gallup [2]. Over the years, Democrats have repeatedly used the abortion issue to fire up the base whenever the prospect of another GOP Supreme Court pick loomed, but it is unclear whether this appeal turns out more voters than it turns off. Judging by the 2000 presidential election results, this is a losing tactic. In its early days, the pro-life movement had more support among far-left pacifists than it had among establishment conservatives [3].

Fiorina cites a poll saying that most Americans think abortion should be legal in the first trimester, but most think it should be illegal after that. Polls have consistently shown that most Americans do not want a complete ban on abortion, but neither do they want it completely unrestricted [4].

Today, SCOTUS takes up Dobbs v. Jackson, concerning the constitutionality of Mississippi’s Gestational Age Act, which bans on abortion after the 15th week of pregnancy, with exceptions for severe fetal abnormality or medical emergency. What if Congress were to beat SCOTUS to the punch? After the passage of the Texas antiabortion law, Democrats in the House passed a bill codifying Roe v. Wade (the Women's Health Protection Act), which has no chance of being passed in the Senate in its current form. But what if the bill were modified to reduce the 24-week limit on abortions to 15 weeks? What if elected officials could get past the use of abortion as a tool to manipulate various constituencies and actually tried to resolve the issue in a way that most Americans could accept? Passage of such a law would still go against Roe v. Wade and would therefore require judicial review, but there is reason to believe that the current SCOTUS might go along with more limits on abortion. We shall soon see.

Many European countries limit abortion on demand to 12 weeks; after that, there are restrictions. If those on the pro-life side can live with a 15-week limit on unrestricted abortions, those on the pro-choice side should accept it. Of course, it’s not that simple; many activists on the pro-life side would not, in fact, be content with a 15-week ban. Still, a 15-week ban could be a step toward a commonsense consensus. 

The country desperately needs such a consensus. In the face of the pandemic, climate change, and many other domestic and international threats to our institutions and security, we need something like a unity government. The country needs to come together around the problems that we all recognize and compromise on issues that divide us.

Activists on both sides will say that there can be no compromise on rights. In the context of this debate, this kind of table-thumping gets us nowhere.

Feminists claim that this is about patriarchal control of women's bodies. But there are more women than men in the US, and more women vote, and it has been that way for a long time. Most women do not favor the extreme position on abortion that certain feminists advocate in their name; if they did, the matter would have been settled long ago.

Pro-lifers should note that the abortion rate is lower in much of Western Europe, even in countries where abortions are paid for at public expense, and higher in other places in which abortion is illegal [5]. They should look at the results of Prohibition in the US. Outlawing alcohol through political maneuvers that failed to achieve consensus on the moral issue did not end alcohol consumption. It did generate an enormous black market to cater to the demand, which in turn led to the rapid growth of murderous criminal organizations. They should look at Ireland, where abortion was illegal for decades, but rather than ending abortion, thousands of Irish women simply went to the UK or other places for abortions every year, and the moral consensus that had initially supported the ban on abortion rotted away. The ban was overturned in 2018. Something similar is happening in Texas. In response to the new restrictions, many women are going to other states for abortions or using abortifacients.

The US abortion rate is 13 per 1000 women. If the goal is to save unborn lives, which state of affairs is preferable -- that of Switzerland (where abortion is legal and paid for by the government, and the abortion rate is 5 per 1000), or Colombia (where abortion is generally illegal, and the abortion rate is 34 per 1000)? [Ibid.]

If SCOTUS upholds Mississippi's ban on abortions after 15 weeks, but does not strike down Roe v. Wade, those on the pro-life side will still be free to picket abortion clinics, support women facing crisis pregnancies, and work to change hearts and minds, which in the end is the only effective way to prevent abortions.

If SCOTUS overturns Roe v. Wade completely, then will abortion just become an issue at the state level? And then will many states follow the path that Ireland trod, with abortion illegal, women getting abortions anyway, and eventually legalizing it? Maybe, but I doubt that it will go away as a national issue. I fear that, as Fiorina says, it is too useful as a political tool. It will become a legislative football, with both sides trying to enact legislation at the national level, and if such legislation ever passes, then the focus will be on overturning it.

This should worry progressives because it becomes an obstacle to necessary reforms in other areas. The filibuster has been a tool of reactionary politics for generations, but pro-choice organizations have opposed getting rid of it, because if SCOTUS overturns Roe v. Wade and the GOP regains control of Congress and the presidency, the filibuster will be the only way to prevent a national ban on abortions. Pro-choice activists have shown themselves willing to subordinate the entire progressive agenda to their issue.

Meanwhile, the Trumpist/fascist wing of the GOP has shown that it is willing to subvert majority rule and rule of law in order to get and retain power. If they can get just enough support to get their minions into key positions just long enough, then they will effectively be able to enact one-party minority rule. Wedge issues like abortion are key to their strategy, along with voter suppression and gerrymandering.

A SCOTUS ruling that allows states to ban abortion after 15 weeks but does not strike down Roe v. Wade may be the best outcome at this time. Such an outcome would disappoint or dismay single-issue voters on both sides, but it would reflect the longstanding position of the majority of the American people.

Image credit: Jarek Tuszińsky via Wikimedia

Notes:

[1]  The GOP's Abortion Strategy: Why Pro-Choice Republicans Became Pro-Life in the 1970s | Journal of Policy History | Cambridge Core

See also How Republicans Became Anti-Choice | by Sue Halpern

Update 12 May 2022: See also The Religious Right and the Abortion Myth by Randall Balmer, Politico

[2] Abortion Trends by Gender (Gallup)

[3] The Vestiges of the Pro-Life Movement's Liberal Origins (University of Notre Dame, Church Life Journal)

[4] Trimesters Still Key to US Abortion Views (Gallup)

See also Polls: Most Americans support the right to abortion, but many are also OK with 15-week limit (Yahoo News)

[5] Abortion Worldwide 2017 (Guttmacher Institute)

See also https://www.nationmaster.com/country-info/stats/People/Abortion/Abortion-rate

Pro-Conscience revisited

My position on abortion is what I call "pro-conscience", which I outlined in this piece. The core ideas are

• People can disagree in good faith about the moral status of the unborn at the earliest stages of pregnancy. In the absence of agreement, the law must respect freedom of conscience.
• Past a certain point, however, the unborn deserve the benefit of the doubt and the protection of the law.
• Within constitutional limits, moral disagreements should be resolved by democratic processes, not judicial fiat.

I have long wanted to return to this topic and develop my ideas further, but I have been unable to answer several related questions to my satisfaction:

How do we define the "earliest stage of pregnancy", in which the issue can be left individual conscience to decide, and the later stage at which the state must protect the unborn? I suggested 9 weeks in my earlier piece, based on developmental milestones, but I would like to have a firmer ground to stand on. 12 weeks after conception is the limit for elective abortions in some European countries (10 weeks in Portugal). This doesn't solve the question in principle but it could in practice. What's good enough for secularist France should be good enough for pro-choicers in the US, and pro-lifers should recognize that pushing the ban much beyond that will not end abortions but will only drive them underground, creating a black market for abortions, as is currently seen in countries where abortion is completely illegal.

What would really happen if Roe v. Wade were overturned? Few on either side of the debate have offered honest answers to this question; both use the fear/hope of overturning RvW as a political talking point and don't offer any serious analysis of the consequences. If RvW is overturned, then the abortion debate would be moved to the state level -- unless it is codified at the federal level, which Biden has promised to do, but, like overturning the Hyde amendment, this is really up to Congress. The possibility of discarding the filibuster complicates this question.

What are the limits of local moral standards? If the abortion question were in fact returned to the states to decide, it seems highly likely that some states would keep it legal and others would not. This raises the broader practical philosophical question of what degree of local autonomy on moral questions is permissible. Currently, prostitution is legal in a few places in the US. After Prohibition was repealed, some localities continued to ban alcohol. Marijuana has been legalized in several states, though it is nominally still illegal at the federal level. Some states allow capital punishment. Slavery, however, is no longer left to individual states to permit or outlaw. What kind of questions can be decided at the state or local level, and what kinds of things rise to the level of inalienable rights that must be universally respected?

Since Biden's election, many new restrictions on abortion have been passed at the state level and some are currently scheduled to come before the Supreme Court, including a Mississippi law that outlaws abortions after 15 weeks.

Here is a summary of proposed laws around the US.

The seamless garment vs. the sausage factory

In my last post, I talked about pro-life Democrats. Case in point, Bart Stupak.

Bill Clinton campaigned on health care reform, but his administration failed to come up with a plan that could get through Congress, and health care reform would not receive serious consideration again at the national level until 2008. I had inadequate health insurance or none at all for much of the 90s-00s, so the issue concerned me personally.

In the 2008 presidential campaign, all of the major candidates of both parties had proposals for health care reform. I anticipated real change after Obama won, but I feared that health care reform would run afoul of abortion politics. This is in fact what happened. 

Although Obama was willing to allow the existing ban on federal funding for abortions (the Hyde Amendment) to apply to his health care reform proposal in the interest of getting it passed, pro-choice members of the House rejected that approach and instead amended the administration’s proposal so that it would in effect allow federal funds to pay for abortions (the Capps Amendment). This amendment was a compromise according to its supporters, but it would have funded insurance plans that paid for abortions. This was unacceptable to pro-life representatives, including a bloc of pro-life Democrats led by Bart Stupak of Michigan. With all GOP members voting against the bill, Stupak’s bloc was able to hold up passage of health care reform in the House until the ban on funding was re-established in the legislation.

In the Senate, however, the funding ban was weakened, and when the bill came back to the House for final passage, Stupak’s pro-life Democrats faced a dilemma: allow abortion funding or kill health care reform. Obama gave them a way out: if they agreed to vote for the bill, Obama would issue an executive order that would deny the federal funding for abortions, closing the loophole in the Senate bill that allowed it. The final result was the Affordable Care Act (ACA, or “Obamacare”).

Under intense pressure, facing the defection of several members of his bloc, and unwilling to deal a fatal blow to health care reform and possibly Obama’s presidency, Bart Stupak and the remaining members of his bloc accepted this compromise.

(Here is a short summary of what happened, published by the Commonwealth Fund.)

I remember these events well. They exemplified the pernicious hypocrisy of single-issue activists and extremists on both sides of the abortion debate, but especially that of the GOP under Mitch McConnell’s leadership. Watching these events unfold solidified my conviction that another approach to abortion was needed (see my post on 25 May 2017,“Pro-Conscience”). 

On the progressive side, some activists were concerned that women who had coverage for abortions in the health insurance plans they already had would lose it; others, it seems, simply wanted to expand access and were willing to play games with health care reform to get it. I wrote to Speaker Pelosi back then, imploring her not to allow health care reform to fail because of abortion. I asked why every other progressive goal -- everything progressives wanted to do to address health care, climate change, civil rights, civil liberties, labor, gun control, immigration, etc. -- was negotiable, but not abortion. As long as abortion remained legal, how could any progressive justify holding up health care reform, which so many people needed so desperately, in an attempt to make abortions available at public expense?

On the conservative side, the GOP showed that it was more interested in using abortion as a wedge issue than in protecting the unborn or being pro-life in the larger sense. When the Obamacare bill was in the House, the GOP representatives unanimously joined with Democrat Bart Stupak in the successful fight to maintain Hyde Amendment language in the bill, but then only one Republican, Joe Cao of Louisiana, voted to pass the amended bill. This shows that the GOP was really only interested in using abortion as a poison pill. Then, when the bill reached the Senate, the ban on federal funding for abortions was weakened by pro-choice senators. The bill could have passed the Senate with the ban intact if the GOP senators had cooperated in a bipartisan way with pro-life Democrats, but Mitch McConnell chose to pursue a path of obstructionism, and the GOP senators followed his lead. 

The national pro-life organizations revealed themselves to be little better than GOP shills. They had lauded Bart Stupak when he held up passage of the ACA in the House, but when he accepted Obama’s executive order banning funding for abortions, they turned on him. Susan B. Anthony’s List had given him its “Defender of Life” award, but revoked it and donated $150,000 for advertising against him.

Pro-choice organizations were almost as hypocritical. They accused Stupak of attacking abortion rights when in fact it was pro-choice members of Congress who had unnecessarily injected abortion into the health care debate. Obama’s plan had originally been conformable to the Hyde Amendment; it was the pro-choice side who had amended the bill to include expanded abortion funding.

Catholic organizations were split. The United States Conference of Catholic Bishops had supported Stupak’s efforts but sided with the GOP in the end, despite their affirmation that health care is a right. But organizations representing Catholic sisters, many of whom work in health care, supported the passage of the ACA. Bart Stupak himself is a devout Catholic. He is pro-life in the “seamless garment” sense; he opposed the death penalty and the second Iraq War and fought for health care reform throughout his nine terms in Congress. 

It is worth mentioning that Stupak himself favored a much simpler reform plan: “ . . . expand Medicaid, SCHIP, and Medicare for individuals fifty-five and over. Then, for all the rest of the uninsured Americans: allow them to buy into the Federal Employees Health Benefits Package.” (Bart Stupak, For All Americans, Ch. 21, Kindle edition location 1632.)

This post is based mostly on Bart Stupak’s book For All Americans (Covenant Books, 2017), and on my own recollections of the events. I lived in Stupak’s district from 2000-2006 and voted for him. I would encourage anyone interested in abortion, health care, or how laws are made to read Stupak’s book. Of course it is told from Stupak’s point of view, and there is some self-justification and score-settling, but it is adequately documented and its main topics are mostly matters of public record. Despite going into minute details of the legislative process and associated deal-making, I found the book to be a page-turner.

Can Democrats be pro-life in 2020?

Al Gore has been in the news lately. He recently endorsed Joe Biden for President and continues to advocate for action on climate change. People on social media are ruefully speculating about how different things would be if Gore had won in 2000.

source

Something nobody on the left wants to acknowledge is that Gore's approach to abortion contributed to his defeat. Yes, Florida was stolen, but he also lost his home state of Tennessee, which would have put him over the top had he won it, even with the loss of Florida. Why did he lose Tennessee? Not because a few people voted for Nader. It may well have been because he not only shifted his position on abortion from one that was borderline pro-life to one that was fully pro-choice, but did so in a way that alienated many of those who had previously voted for him and/or Bill Clinton. Instead of Bill's conciliatory "safe, legal, and rare", which at least acknowledged that this was a moral issue to many people, Gore adopted the tone and language of pro-choice activists, dropped his previous opposition to federal funding for abortions, and pretended that he had always been unequivocally pro-choice.

Gore wasn't the only one. Some heartland politicians like Dick Gephardt and Dennis Kucinich switched their positions on abortion and were defeated anyway. Others like Bob Casey, Sr. didn't switch but were silenced by the Democratic Party elite, which may have led some of their supporters to vote for Republicans for other offices, including the presidency.

John Kerry’s loss in 2004 is also instructive. There are similarities between Biden and Kerry that should worry Democrats. Like Kerry, few voters are particularly enthusiastic about Biden, and the race is more about why the incumbent is bad than why the challenger is good. Also like Kerry, Biden is a pro-choice Catholic. Catholics in the US come in all political persuasions, but nothing riles up conservative Catholics more than pro-choice Catholic politicians. Gay marriage was another cultural issue that drove up conservative turnout in 2004. COVID-19 may render cultural issues and the lack of enthusiasm for Biden moot in 2020, or it may not -- a lot can happen between now and November.

If the Democrats lose the swing voters, they lose the election. If progressives take the bait and once again allow the GOP to frame the election in terms of culture-war issues, Democrats will lose the swing voters. Biden has already backed away from his previous support of the Hyde amendment, which is more than he should have had to do. With all due respect to Bernie Sanders and all that he has achieved, he was wrong to suggest that Democrats can't be pro-life. Some are in Louisiana and other places, and the Democrats can't afford to lose them.

Instead of trying to chase pro-life voters and elected officials out of the party, Democrats need to find common ground, emphasize that progressive policies will in fact lead to fewer abortions, and point out that outlawing abortion will not make it stop if the other conditions that drive women to it are still present. The Democratic Party also needs to make sure that pro-life Democrats go to the polls and vote for downballot Democrats -- including pro-life Democratic candidates -- even if some of them might cast no vote for president rather than vote for a pro-choice nominee.

The 2020 election ought to be about two things: (1) saving the republic from oligarchic degeneration, corruption, and incompetence, and (2) saving the planet from catastrophic climate change. The culture wars will have to wait. 

Pro-Conscience

"Heartbeat" bills have been in the news recently. Those on the pro-life side are using these bills as a ploy in the hopes of seeing Roe v. Wade challenged and possibly struck down at the Supreme Court, to the consternation of those on the pro-choice side. 

Nobody seems to have grasped that, despite their intent, the pro-lifers may have inadvertently offered a compromise position. Banning elective abortions after 6 weeks except in cases of rape or incest could accommodate the most reasonable concerns of those who want to keep abortion legal and is a far cry from banning abortion from the moment of conception, which is what the most vocal pro-lifers have always said they wanted. If it turns out that many pro-lifers would be satisfied with banning elective abortions after the fetal heart starts beating, pro-choicers ought to take them up on that. (Admittedly, the boundary between elective and medically necessary terminations would remain a contested issue.)

In the 2000s, frustrated by the way the abortion issue was distorting politics at the national level, I tried to formulate a "third way". What follows is the text of a talk I gave at the 2012 Felician Ethics Conference, with a few emendations.

Pro-Conscience: a Third Way for the Abortion Debate

by M. D. Robertson

President Obama delivered a memorable commencement address to Notre Dame’s class of 2009. In that speech, Obama offered his thoughts on the abortion debate. Obama deserves credit for his call for mutual respect between the two sides and his emphasis on common ground, and the protesters who objected to his visit deserve credit for challenging him to confront the issue.

Yet, while he called for a more moderate tone in the debate, the substance of Obama’s position on abortion is the same as NARAL’s, and though he called for common ground, he also declared that on some points the positions of the two camps are irreconcilable. This is where the president is mistaken. It is true that the positions of the National Abortion Rights Action League and National Right to Life are fundamentally irreconcilable, but it is a mistake to suppose that these are the only two possible positions and that the president and the nation must choose between them.

The labels “pro-life” and “pro-choice” oversimplify the range of opinions that Americans hold on the subject of abortion. In May of 2009, a Gallup poll found that 51% of respondents called themselves “pro-life”; 42% called themselves “pro-choice” (this was the first time that a majority classified themselves as “pro-life”). But only 23% would ban abortion completely, and only 22% favored permitting abortion under any circumstances. 53% believed that abortion should be legal only under certain circumstances, which has been the majority view by a wide margin since 1975 [1]. Yet both of the major political parties have allowed those who hold the more extreme views to frame the debate.

The president’s call for reducing unwanted pregnancies, easier adoptions, and financial support for pregnant women in need is tacit recognition that while there are irreconcilable differences between the “pro-life” and “pro-choice” lobbying organizations, the pro-life movement per se is not fundamentally opposed to the broader progressive agenda. It is possible to be both progressive and opposed to abortion.

Those who support progressive goals need not classify themselves as “pro-choice”. Must those who oppose abortion classify themselves as “pro-life”? Could there be another position that is philosophically coherent and politically viable? I’m going to attempt to formulate an alternative that I will call "pro-conscience". I hope that this position will be acceptable to two kinds of people: firstly, those who oppose abortion but either have reservations about using the power of the state to prevent abortions or are unwilling to support the other policies, such as capital punishment and elective wars, that so-called pro-life politicians have often supported in recent decades, and secondly, those who may consider abortion acceptable, but believe that health care, education, the environment, and many other issues on the progressive agenda are more important than the cause of unrestricted access to abortion.

In keeping with the pragmatic spirit of the current administration, I shall begin by stating pro-conscience policies and then explain the underlying principles. Here's my idea of what a pro-conscience politician might look like: She would oppose late-term [third trimester] abortions*, public funding for abortions, and financial support for overseas groups that promote abortions. She would support parental notification. She would support strong “conscience clauses” for healthcare workers. She would proclaim her personal moral opposition to abortion, and would support organizations that work to reduce abortions using persuasion and social support. But she would not actively oppose legal access to elective abortion during the first nine weeks after fertilization. She would [might] support the nomination of justices who would overturn Roe v. Wade, or even a constitutional amendment to that effect, but would not support an amendment that would define when life begins.

Stating the policies that a pro-conscience politician would favor is easy, but explaining the principles that justify this position will require careful exposition. President Obama has recognized that people can disagree in good faith about the issue of abortion, and this is the basis on which the pro-conscience position rests. The First Amendment guarantees the free exercise of conscience in many matters that may offend the majority of the population; a fortiori, concerning moral questions about which there is no consensus among the electorate, and about which there is disagreement in good faith, the state must allow citizens to follow their consciences.

The essence of the pro-conscience position, then, is this: our Constitution does not [explicitly] recognize a right to abort per se, but it does recognize freedom of conscience, and since there is good-faith disagreement regarding the status of the unborn at the earliest stages of pregnancy, the state cannot override individual consciences on the question of the morality of abortion during that period.

Two terms of this definition obviously need further clarification, namely “good faith disagreement” and “at the earliest stages”. They can be clarified simultaneously by examining the most extreme opinions on the subject of abortion. On the pro-life side, there are some who would outlaw all abortions, even those that are necessary to save the life of the mother. On the pro-choice side, there are some who would allow abortions at any time before birth, for any reason or no reason at all, without informing or consulting parents or spouses, regardless of the age of the mother, and at public expense. Polls such as the one quoted above have consistently shown that the consensus of the electorate is clearly against both of these extreme positions. Moreover, among those who espouse these extreme views, how many really understand the implications of their positions, and how many have adopted these positions as a result of considered reflection and a sincere desire to achieve true answers and just solutions to the difficult questions and problems that abortion raises? Some, certainly, but others adopt these positions for other motives. They may be adhering to an ideological or religious party line, they may be rationalizing their lifestyle, or they may be reacting on the basis of emotion without considering all the relevant facts.

Perhaps I will be accused of poisoning the well or using ad hominem arguments. If I were trying to settle the question of the metaphysical status of the unborn, the motives of the proponents of the various views on this matter would indeed be irrelevant. But I am not addressing that theoretical question; I am addressing the practical political problem of whether abortions should be allowed when that theoretical question remains unanswered. In the absence of an answer to the theoretical question, I have turned to freedom of conscience as a principle that might solve the practical problem. But allowing people to follow the dictates of their conscience means allowing them to act in accordance with what they believe, so it is legitimate to ask in this case, what do they really believe?

Do those who profess the most extreme pro-life view really believe that there is no morally relevant difference between killing a one-day-old zygote (a cluster of as-yet undifferentiated cells which has not even reached the womb yet) and killing a newborn baby, and do they really believe that letting an ectopic pregnancy continue until it ruptures is better than terminating it? Do those who professes the extreme pro-choice view really believe that killing a 9-week old fetus is analogous to excising a tumor or extracting a tapeworm (not mention the difficulties raised by late term [third trimester] abortions)? In classroom discussions of this issue, I have found that students who hold extreme views either moderate their views after a thoughtful and well-informed debate, or latch onto an ideological position and dig in. I am not a mind reader, but I suspect that among those who claim to hold the most extreme views, those who are both intellectually honest and well-informed about the facts of prenatal development are a minority within a minority. 

Among those who honestly do hold the most extreme views, there may be a generational factor. We need to respect the experiences of women who confronted the issue of abortion in a different era, and understand how those experiences have shaped their views both for and against legal abortion, but we must also insist that this is 2012, not 1973. The social context has changed significantly in the past 40 years. A woman cannot lose her job simply for getting pregnant. Single motherhood does not carry the severe social sanctions it once did. Contraception is widely available. The technological context has also changed. There was a widespread network of safe abortion providers that operated even before abortion was legalized in New York in 1970 [2]. With the Internet, such a network would be easy to reestablish in the event that abortion were to be outlawed through some political maneuvering that did not first achieve a supportive consensus among the citizenry. The Internet also has plenty of information about do-it-yourself abortions, and new abortifacients [that did not exist in 1973] such as RU-486 could easily be smuggled in. [There are also FDA-approved medications for other ailments that can cause miscarriage as a side effect.] Those on both sides of the debate need to take a fresh look at what really is and is not at stake, and what the consequences of any proposed change in abortion policy really would be. Philosophers have not yet succeeded in coming up with a generally accepted definition of “personhood” that draws a clear line between persons and non-persons. The theoretical question remains unresolved, but it is clear that by the end of the ninth week after fertilization, those who would defend the life of the fetus no longer bear the burden of proof. By this stage of a normal pregnancy, the fetus has fingers, toes, a face, a nervous system, detectable brain activity, and a beating heart. By this point, it deserves the benefit of the doubt.

The “benefit of the doubt” argument gets stronger as the pregnancy proceeds, but by the same token it gets weaker when applied closer to the moment of conception. There is no good reason to think that an embryo can feel pain before sufficient neurological development has taken place. The pro-life bumper-sticker slogan “abortion stops a beating heart” cuts both ways, for abortion during the first few weeks does not in fact stop a beating heart. Yet even a zygote is a living organism with its own unique genetic code. Concerning the status of the unborn prior to the fetal stage, good-faith disagreement displaces consensus, and the burden of proof therefore rests on those who would impose one particular moral vision on others who do not share it.

I must emphasize again that I am not claiming that any of these facts yield conclusive answers to the moral and metaphysical questions concerning the status of the unborn, nor am I claiming that the status of the unborn is the only relevant consideration. But speculative philosophers faced with theoretical questions have the luxury of answering, “I don’t know”; legislators faced with practical questions do not. The law must either ban abortions completely or allow them under some circumstances. The law might remain neutral in principle, but in practice it must enforce one position or another [2]. In a democratic society, the position that the law enforces ought to reflect the moral consensus of the community within the limits prescribed by the Constitution. The consensus of most Americans is against unrestricted abortion once the unborn has reached the fetal stage; at earlier stages, there is no clear consensus to enforce. Freedom of conscience is especially important to American Catholics and other members of minority religions who have faced discrimination in the past. The pro-conscience position would offer Catholics an additional benefit: with pro-conscience candidates on the ballot, Catholics could escape the recurring dilemma of choosing between a “pro-life” candidate who rejects the Church’s teachings on peace and social justice and a candidate who accepts those teachings but is “pro-choice”.

Freedom of conscience is the fundamental guiding principle of the pro-conscience position. But how should this freedom be protected? This is especially relevant to the question of whether Roe v. Wade should be overturned, and whether the beginning of a person’s life should be defined constitutionally. This opens up another dimension of the pro-conscience position, one which requires another guiding principle that must be harmonized with freedom of conscience, namely, faith in the democratic process. Aristotle says

For the many [. . .] when they meet together may very likely be better than the few good, if regarded not individually but collectively [. . .]. For each individual among the many has a share of virtue and prudence, and when they meet together, they become in a manner one man [. . .]. (Politics, Book 3, Chapter 11, translated by B. Jowett)

The pro-conscience politician would share Aristotle’s optimism about what rational citizens can discern through collaborative reasoning, discourse and debate. This collaborative reasoning process can take place in the formal legislative process or in the wider civil society. By contrast, the use of the courts to settle contentious moral issues by judicial fiat is antidemocratic, and should be rejected even if one feels that the courts have generally been correct about such issues.

The civil rights movement provides a useful parallel. What was achieved through the courts? Plessy v. Ferguson entrenched Jim Crow for half a century. Brown v. Board of education overturned Plessy v. Ferguson, but provoked backlash and resistance, and de facto segregation of schools did not end. By contrast, the Voting Rights Act and the Civil Rights Act made real and lasting change possible. These acts came from the legislature, not the courts, and were passed in response to the demands of a popular movement and the new moral consensus it helped generate. To those on both sides of the debate, I suggest that if your cause is truly just, then you ought to be able to make your case to the people and persuade them.

Freedom entails responsibility. This applies to both bodies and minds. Our bodies are ours to control, but we are responsible for our actions. Likewise, we are free to pursue the good and the right as we see them according to our own lights, but we have a responsibility to inform ourselves and think through the issues we are confronted with to the best of our ability. Most Americans implicitly recognize this, and they deserve an abortion policy that recognizes this also. That is what the pro-conscience position is – not an incoherent compromise between irreconcilable extremes, but an honest resolution of the abortion question based on the most important right we possess: freedom of conscience.

* Added on 5 January 2021: The pro-conscience position would allow termination after 9 weeks in cases of severe risk to the mother or non-survivable fetal anomaly, but not for eugenic purposes. When the child is not expected to survive, early induction of labor followed by palliative care for the child until natural death would be permitted. The pro-conscience position would oppose laws that effectively require clinicians to kill the child prior to delivery or attempt to resuscitate children with fatal defects after delivery against the parents’ wishes in these cases in order to avoid criminal liability. The pro-conscience position views these cases as similar to other end-of-life cases, such as when a patient is in a persistent vegetative state and cannot survive without artificial support. The patient is or was a human being and a person, but at some point, nature must be allowed to take its course, and the survivors must be allowed to grieve.

[Follow-up: Pro-conscience Revisited]

Sources

[1] Gallup. “More Americans ‘Pro-Life’ than ‘Pro-Choice’ for the First Time”. http://
www.gallup.com/poll/118399/More-Americans-Pro-Life-Than-Pro-Choice-%27First-Time.aspx .
See also “Finding Common Ground on Abortion” (2002). http://www.gallup.com/poll/5218/
Finding-Common-Ground-Abortion.aspx .

[2] This network, the Clergyman’s Consultation Service on Abortion, is described in Articles of
Faith, by Cynthia Gorney (New York: Touchstone, 1998).

[3] Many writers have made this point about the de facto impossibility of neutrality, e.g, Michael Sandel in Democracy’s Discontent, pages 20-21 (Cambridge: Harvard University Press,
1996).

Embryo image credit: https://commons.wikimedia.org/wiki/File:Embryo_7_weeks_after_conception.jpg . The original uploader was GoldenBear at German Wikipedia. [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0/)]