Justice Samuel Alito composed the now famous ruling that recently overturned Roe vs. Wade. An important line of argument in that ruling was Alito’s assertion that abortion access did not have a long, established history in this country.
I am not an American historian, but then neither is Justice Alito.
I do know that this particular line of argument has been heavily criticized since its publication. PBS News recently offered a fascinating story covering this “complicated history” in early America.
A friend of mine sent me the link to a fascinating article yesterday in reaction to my last post about the moral implications of believing that life begins at conception (see here).
This article investigates the legal issues that have arisen in America’s courts by consistently applying the principles of fetal life and individual bodily autonomy.
The piece is titled “The Rights of the Fetus and the Principle of Bodily Autonomy” and is published on the website of the Anastasis Center for Christian Education and Ministry. It is written by David Gill, Professor Emeritus of Ethics, Gordon-Conwell Theological Seminary.
Below is an excerpt:
The fetus is treated very inconsistently by U.S. law today, and not just in abortion situations. For example, the fetus can inherit property. If a pregnant mother dies before or in childbirth, but the fetus survives and is born alive, courts have decided that the child can inherit property along with other living siblings, and the state will appoint guardians for the child if needed.[1]
The fetus can be the victim of personal injuries in assaults in thirty-eight states. For example, in November 2014, in California, Scott Peterson was convicted of the first degree murder of his wife Laci and the second degree murder of their unborn son Connor.[2] In November 2017, in Texas, Devin Patrick Kelley committed a gun massacre at First Baptist Church in Sutherland, Texas, murdering 26 people, including Crystal Holcombe and her unborn child, who was at eight months of gestation and was counted as a person among the victims.[3] The federal Unborn Victims of Violence Act of 2004 makes a motorist guilty of two homicides in motor vehicle accidents when both a pregnant mother and the fetus in her womb die, even if that woman was on her way to abort her fetus.
The fetus’s life legally overrides its mother’s “religious freedom” interest in refusing blood transfusions if she is a Jehovah’s Witness. In 1964, the New Jersey court, in Fitkin Memorial Hospital v. Anderson, decreed that a pregnant woman who was a Jehovah’s Witness did not have the right to refuse a blood transfusion when doctors believed that the procedure would preserve the life of the fetus she carried. The 1985 In re Jamaica Hospital case in New York’s State Supreme Court decided the same. The New York court recognized the mother’s right to an abortion at that stage in her pregnancy, but maintained that in the circumstance where the mother was in need of a blood transfusion for another emergency reason, the state’s significant interest in protecting a midterm fetus’s life outweighed her religious beliefs against blood transfusions.
Under such laws, fetuses could have their interests defended against poisoning from lead in drinking water, biotoxin exposure, etc. as much as alcohol and other substances. In a helpful law journal article, Robin Trindel highlights numerous examples of courts that have even upheld children’s legal suits against a defendant “for prenatal injuries where the defendant’s negligence occurred prior to the child’s conception.”[4] For example, in Renslow v. Mennonite Hospital (1977), a minor daughter who was also incompetent, represented by her mother, successfully sued a hospital for administering an improper blood transfusion to the mother eight years prior to her getting pregnant. The Rh incompatibility in the mother’s blood caused brain, nervous system, and organ damage to her daughter.[5] A similar case occurred in Bergstreser v. Mitchell (8th Cir. 1978), concerning a child being adversely affected by the doctors who administered a Caesarian section improperly to her mother for her previous child. In Jorgensen v. Meade Johnson Laboratories, Inc. (10th Cir. 1973), deformed twin infants, represented by their parents, successfully sued a birth control drug manufacturer for their condition, which included mental retardation, physical deformity, pain, and suffering.[6]
The Curlender v. Bio-Science Laboratories (1980) case in California surprised many because a child successfully sued for a “wrongful life” cause. She was in constant pain from Tay-Sachs disease. She had been conceived because her parents had relied on the company’s assurances that their genetic tests were accurate and that their child would not have genetic complications. Whereas parents had been able to sue on the grounds of a wrongful birth cause, this was the first time in U.S. legal history where a child won a case on the grounds that she should not exist—that is, of a wrongful life. Observers in many fields registered their alarm at what Curlender meant for the legal jeopardy of science and medical professionals.[7] Taking that one step further, can a child sue the society into which it was born because it was born into poverty?
You can read the entire article and find the footnotes here.
Obviously, this post is spurred by the recent Supreme Court decision overturning Roe vs. Wade and the many conversations now occurring state-to-state about local abortion laws.
The premise of the anti-abortion (I refuse to use the term pro-life, since it is highly misleading) movement has always been the claim that “life begins at conception.” A secondary entailment of that assumption is the definition of “life” as the existence of a human person.
Let me begin by putting my cards on the table: I used to espouse this view myself. In the past, I have led protesters in prayer near an abortion clinic. But no more. Over the years, I have undergone a slow transformation.
Nowadays,I believe that only God knows when another “life” (see above) begins inside a woman’s body. Pinpointing this arrival of new life into the world is beyond human comprehension.
A human embryo
However, having said this, I also recognize two things. First, I recognize that opposition to abortion has been unanimous throughout Church history, going back as far as the earliest Christian Church fathers (among those who left written records). However, granting this fact still does not answer the question of when life begins.
For instance, some Jewish literature indicates that life was not thought to begin until the mother could feel movement inside of her body. So, terminating a pregnancy prior to that experience would not necessarily be considered abortion by all.
Second, understanding that the fertilization of a woman’s egg (both the egg and sperm are called a “gamete”) begins a process resulting in the creation and eventual delivery, assuming no interference, of a human baby. Whether or not we can say with certainty when life begins does not change the fact that pregnancy is a process that eventually produces a new life.
Thus, it only makes sense that abortion should be avoided as much as possible – yep, I am no longer an absolutist on this point, as I will explain below – as dictated by whatever reasonable concerns are raised by a pregnant woman’s circumstances.
Yes, I know that “reasonable concerns” is a subjective constraint, but it is not my goal in this post to explore that problem. I will only say that the current story of the pregnant 10-year-old Ohio girl, raped and impregnated by her father, raises more than enough “reasonable concern” to justify an abortion, in my mind.
Sadly, Ohio state law is now denying her that humane solution – yes, humane solution – to her tragic plight. That strikes me as terribly wrong.
Rather, in this post I want to explore the inconsistencies that I see in the conservative, anti-abortion position. Inconsistencies which suggest to me either that few conservatives actually believe what they claim to believe, OR they are ignorant, and therefore should remove themselves from this debate about the details of conception, contraception, and pregnancy.
Let’s first remind ourselves of the physiological details that everyone in this debate ought to understand…despite the fact that many, obviously, don’t.
Here is a simplified version:
When the female gamete, the egg, is penetrated by a male gamete, a sperm, fertilization occurs and produces a zygote. Remember that, according to conservative, anti-abortion advocates, this is when life begins, “at the moment of conception.” So, a zygote is a living person, according to this view. No, don’t try to quibble over this. A zygote is either “alive” or it’s not. And we are only talking about one kind of life: a human life.
After about five days of cell division, the zygote becomes a blastocyst.
The zygote or blastocyst continues to travel down the woman’s fallopian tube (coming from the ovary) towards the uterus and takes between four to ten days on average before implanting into the uterine wall.
But not every fertilized egg/zygote makes it to implantation. Implantation seems to be the moment when the blastocyst officially becomes an embryo. The embryonic period lasts for eight to nine weeks. At week nine or ten the embryo becomes a fetus.
The transition from a dependent fetus to an independent baby, capable of living outside the mother’s body, remains a matter of debate, partly contingent on the expanding capabilities of medical technology.
Sometimes the zygote implants inside the fallopian tube creating what is called an ectopic pregnancy. Ectopic pregnancies are dangerous for the mother and are typically terminated (aborted, according to conservatives?) either naturally, chemically, or surgically.
Do you know of a woman, anti-abortion activist who terminated her ectopic pregnancy? I’d love to hear answers to my following questions.
Depending on what study you read, somewhere between 40% to 70% of fertilized eggs never implant in the uterus but are “flushed” from the woman’s body along with her menstrual fluids. In other words, IF life does begin at conception/fertilization, as anti-abortion activists insist, then either God or nature, whichever you prefer, is the greatest abortionist of them all.
More than that, if anti-abortion activists were serious about this belief, then why are these abundant “natural abortions” not being memorialized? Does anyone do this? Please tell me if you know.
Wouldn’t it make sense, both logically and morally, that every woman, anti-abortion activist – at least those who are still menstruating and capable of becoming pregnant – who believes that life begins at conception, ought to collect her monthly menstrual fluid in a bag for burial?
I am serious and not in any way trying to be flippant. That may sound foolish, but why? Does anyone do this? I really want to know. And if not, why not?
If you truly believe that life begins at fertilization, then it only makes sense, and conforms to the moral imperatives of honoring all life, to see those 40% to 70% of fertilized but unimplanted zygotes as “preborn babies” (to use the manipulative, propagandistic lingo deployed by certain activists).
In which case, every one of them deserves a decent burial with a headstone. Right? And, if not, why not? Please explain this to me and help me to understand. I have never heard of anyone doing this. Why?
This brings us to the question of miscarriages.
I am well aware of how extremely traumatic a miscarriage can be for everyone involved. In no way am I trying to be cavalier or callous. Nevertheless, we all must take the full implications of our moral positions with all seriousness.
If life begins at conception, then every miscarriage is a naturally occurring abortion which ends the life of a pre-born baby. This must be true at whatever stage in pregnancy the miscarriage occurs.
Obviously, this conviction is at the heart of what makes the experience of a miscarriage so very, very heartbreaking for those women who experience one.
So, let’s think this through together.
How many anti-abortion advocates who experience a miscarriage insist that the remains of their miscarriage be buried with a funeral and a headstone?
Perhaps some people do this. I don’t know? Do you know of any? I am asking questions for the purposes of logical and moral consistency. I would love to hear some answers from my readers.
In any case, miscarried fetal tissue is the remnant testifying to a human death, if human life does begin at fertilization. In which case, it is deserving of a memorial. How many conservative Christians name their miscarried fetuses and visit their graves?
Perhaps some do, which is wonderful. At least, they are showing real moral consistency.
Naturally, these questions also apply to those state legislatures that are talking about criminalizing the morning after pill, which chemically prevents the zygote from implanting into the uterus. Perhaps these activist legislators argue that this type of “abortion” is not a natural occurrence, so it is different from the 40% to 70% of fertilized eggs that are flushed naturally with a woman’s menstrual fluid.
But anyone making that argument is also underlining the importance of memorializing and properly burying those “flushed” zygotes…on a monthly basis. How many of these legislators do this themselves? I suspect the answer is, none.
But, why not? And, if they don’t do this, then aren’t they being hypocrites by criminalizing the morning after pill? I’d say they were.
The only logical response I can see to any of my questions is to say that “the degree” of life involved in these different events varies according to the developmental stage of the effected zygote, embryo, or fetus. So that, even though “life” begins at conception, certain stages of that “life” can legitimately be terminated, whether by nature or by human intervention, without the need for memorializing, burial, naming, or celebrating because they are “less alive” than they would be at other stages.
But if this is the case, then we have all agreed to the existence of those subjective matters regarding the “reasonable concerns” that make some abortions acceptable, depending on the mother’s circumstances (see above). Yet, these are the very concerns over a woman or a girl’s well-being that the average anti-abortion activist refuses to recognize.
This, my friends, is a major problem in this position, as I see it.
Christians need to think clearly and consistently, especially when the lives and future prospects of young girls and women are all at stake.
We need to follow the moral implications of our beliefs and behaviors all the way through to the very end, consistently, without fudging for personal preference.
Furthermore, we have no business applying moral directives to other people’s lives when we are not following those directives ourselves.
Personally, I don’t see any of these matters being taken seriously by the Religious Right; at least, not in the public conversation.
That’s a big problem for the anti-abortion movement.
