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.
The title to this post, But What About the Children, was a common catch phrase on the long-running Simpson’s cartoon on the Fox network.
Whenever the Simpsons’ neighborhood seemed poised to confront a new, intrusive cultural challenge, the local pastor’s wife could be counted on loudly to lament, “But what about the children?”, giving parody to conservative Christianity’s ostensible concern for the health and well-being of America’s young people.
Monday’s leaked draft of an (apparently?) imminent Supreme Court decision overturning Roe v. Wade is now fueling cries of jubilation among the evangelical community that has fought for decades to rid this country of abortion and the tearful tearing of garments among abortion’s distraught defenders.
Even though I am against abortion per se, I am also disturbed at what the social consequences will be if/when access to abortion becomes more restricted. (I also understand that nothing is certain about these things, and the aftermath will be complex and undoubtedly surprising. See the Constitutional, civil rights attorney, Glenn Greenwald’s helpful discussion of these Constitutional issues here.)
Daniel K. Williams fine book, The Politics of the Cross: A Christian Alternative to Partisanship (Eerdmans, 2021), contains a very helpful analysis of abortion in the United States, the evangelical battle against Roe v. Wade, and what should be the Christian church’s response to the issue’s complexities.
[I encourage you to buy the book and read especially chapter three – I do not agree with everything he says, especially in his chapter on marriage and sexuality. I am also shocked that Stanley Hauerwas does not appear in his bibliography! But overall, Williams provides the most balanced discussion of hot button social issues I have yet found written by an evangelical Christian.]
Here are a few short excerpts from The Politics of the Cross (all emphasis mine):
But what most people involved in the abortion debate seem not to realize is that we have largely returned to a pre-Roe past even without a direct repeal of Roe. The number of abortions per year in the United States is now lower than in any year since 1973[the year of the Roe v. Wade ruling]. . .The number of abortion clinics has fallen by about two-thirds during the past twenty-five years. There are now more than three times as many pro-life crisis pregnancy centers as there are abortion clinics [in this country]. (103)
The primary explanation given by women as to why they want an abortion is that they are too poor to successfully raise another child:
[Pro-lifers are right] in that restricting access to abortion. . . does reduce abortion rates. . . But pro-choice advocates are also right in saying that this method of reducing abortion rates is likely to keep more women in poverty. This suggests that if pro-lifers really care about protecting all human life, including the life of low-income pregnant women, they will not merely try to rescind Roe v. Wade but will instead couple their restrictions on abortion with expanded efforts to provide economic resources to the women whose poverty has been exacerbated by an additional pregnancy. (104).
Fifty-nine percent of women who have abortions are already mothers. . .75 percent of the women having abortions are impoverished or classified as “low income.” (105)
My conscience is deeply troubled by the close connection between abortion rates and poverty in this country.
The majority of women seeking an abortion in this country are moved by, not just a sense of hopelessness, but by the hopeless reality of their desperately impoverished lives. They have no hope that their new baby will have any chance whatsoever at a decent, safe, healthy future in America.
My conscience becomes even more deeply troubled when I remember that the number of Americans now falling into poverty has only continued to grow over the past thirty years.
When this fact is combined with the steady, draconian reduction of family, social services (both public and private) available to poor people today, my blood curdles and I begin to drift slowly in the forbidden direction of supporting Roe v. Wade.
Excuse me, but I find the conservative hypocrisy on this issue stunning.
For if we want to be genuinely pro-life, then we will not only care about reducing abortion, but we will care equally about providing universal health care, especially for mothers and their children, free neo-natal health care, free well-baby home visits, free classes in nutrition and infant care, free pre-school and Head Start programs, especially in poor neighborhoods.
Earlier this year politicians in D.C. fought tooth and nail over the “social welfare” provisions included in president Biden’s Covid Relief bill, ensuring that those aspects of the bill were whittled down to a mere shadow of their original goals.
Both Republicans and corporate Democrats – which is all Democratic Senators and the majority of Representatives – waved the red flag of “increasing the national debt” and “bankrupting our grandchildren!” So, the bill was raped and pillaged until it became a mere skeleton of its original version.
Yet, last week the president asked Congress to approve $33 billion for a new round of military support and arms purchases for Ukraine and our NATO allies.
I have no doubt that the same Senators and Representatives who were previously losing sleep over the nightmare of America’s poor and needy bankrupting the nation, will now happily sign their names to another $33 billion in armament to fight Russia!
Once again, as always, America has deep, deep pockets for war, but instantly becomes penniless and unconcerned when faced with her own impoverished mothers and children.
Every decision is made within a bigger context. Nothing is isolated. Nothing is pristine. Everything is connected.
The way in which those connections influence my actions will always reveal the truth about my moral priorities.
This constellation of recent, national actions concerning Covid Relief, the Supreme Court, poverty levels, and military appropriations lead me to one, inevitable conclusion: American conservatives are no more “pro-life” than the Roadrunner or Bugs Bunny. They are pro-a-particularly-sick-and-twisted-conservative-political-economic-ideology.
I am telling you here and now, Jesus of Nazareth has never been a member of that club. And neither should you.
His discussion of the Court’s rulings about “qualified immunity” for the police makes for chilling reading. Qualified immunity means that the police cannot be held liable, i.e. they cannot be prosecuted or sued for damages, by those they injure.
In other words, the police can violate your Constitutional rights with impunity whenever they like as they like. Leaving us, the citizens whose tax dollars finance our local police force, without any recourse for damages suffered during an encounter with the cops.
This is exactly what we can expect from conservative, pro-corporate judges who care more about the protection of institutional power than the rights and freedoms of anonymous individuals.
Pro-life my ass.
It is another example of the ongoing class warfare that characterizes American society — and why the working-class continues to lose.
For those who don’t think any of this is a big deal, remember the old definition of a liberal: a liberal is a conservative who just got mugged (in this case, by the police).
Below is an excerpt from Balko’s piece. He explains the contested history of qualified immunity; it is well worth some focused attention:
The Supreme Court, having created the problem of qualified immunity to shield
United States Supreme Court
police from being held liable for their misconduct, keeps refusing to fix it.
This week, the court declined to review an especially outrageous ruling by the U.S. Court of Appeals for the 10th Circuit involving a Denver man who was detained for recording a traffic stop, then had his computer confiscated and searched.
No one doubts the man, Levi Frasier, had the right to record the stop. To date, six federal appeals courts have ruled there is a constitutional right to record police officers in public, a sentiment shared by the overwhelming majority of constitutional scholars. No federal appeals court has ruled the other way. In fact, the law is so well established that the officers in Denver were trained that citizens have such a right, and to respect it.
Yet the 10th Circuit ruled that because that circuit had yet to rule on the matter, the right was not yet “clearly established.” In a truly remarkable sentence, the court added, “It is therefore ‘irrelevant’ whether each officer defendant actually believed — or even in some sense knew — that his conduct violated . . . the First Amendment.”
In my last column, I looked at the origins of qualified immunity, the court-created doctrine that makes it extremely difficult to sue police officers for abuse and other constitutional violations. . .
George Orwell famously wrote, “If you want a picture of the future, imagine a boot stamping on a human face — forever.” In defiance of everything we know about violence and state power — and for that matter most of human history — somehow, the Supreme Court has decided that the boot deserves more protection than the face.
I am sure that almost everyone knows by now that, all across the country, Republican state legislatures are proposing a variety of new election laws
Journalist, Mehdi Hasan
that will effectively disenfranchise large numbers of voters, particularly the elderly and people of color.
The Supreme Court has just upheld the legality of two such laws in Arizona.
In contrast to the CBN anchor, Gordon Robertson, who simply vents his spleen against “liberals” while misrepresenting everything at stake in these current voting rights contests, Mehdi Hasan provides a well-informed discussion (approximately 13 minutes) of what is at stake in this Supreme Court decision.
Let’s remember some important details crucial to understanding the context of the court’s decision.
The gutting of the 1965 Voting Rights Act began in 2013 when the Supreme Court invalidated the provision requiring Southern states to seek federal approval for any intended changes to their state’s voting laws. This pernicious ruling, which Justice John Roberts defended by saying, “Our country has changed,” opened the barn door of voter disenfranchisement and let all the ghost horses of Jim Crow run loose again.
Consequently, the conservative lament about the dangerous feds who are working to “take control over state elections” (watch the CBN link above) is ahistorical malarkey. The Voting Rights Act gave the federal government supervisory and enforcement power over every state proposal for a change in its election laws. What is happening now is the step-by-step destruction of that crucial supervision. Do we really need another reminder of the many ways Southern states effectively denied their African-American citizens the right to vote? Excuse me, but John Roberts is a bone-head. No, it is clear that America has not changed, Justice Roberts.
Republicans recognize that there is a direct correlation between the numbers of people who vote in an election and the likelihood that they will lose. Donald Trump admitted this himself during his reelection campaign, acknowledging that if everyone was allowed to vote, Republicans would never win another election. It is not rocket science to figure out that the current slate of voter restriction proposals is intended to suppress citizens’ access to the voting booth. These bills are being called “the new Jim Crow” for very good reasons. The Republican party is working to ensure that they will not lose the next presidential election, pure and simple.
Finally, ALL of these voter restriction proposals are premised on a lie. Time and again Republicans defend their odious proposals as admirable efforts to “protect v0ter integrity.” They then proceed as if Trump’s mountain of lies about significant, nation-wide “voter fraud” were all accurate and substantiated. In other words, these voter suppression proposals are being offered to correct a non-existent, mythical problem. (Read the latest report identifying this problem written by a Republican state legislator in Michigan). They are a modern, political equivalent of medieval practice of blood-letting — let’s kill the patient with a thousand cuts while pretending that we are doctors!
The leaders in the Republican party continue to march towards authoritarianism, proving day after day that they really do not believe in democracy or the right of every citizen to vote.
intrusive cultural challenge, the local pastor’s wife could be counted on loudly to lament, “But what about the children?”, giving parody to conservative Christianity’s ostensible concern for the health and well-being of America’s young people.
Daniel K. Williams fine book, The Politics of the Cross: A Christian Alternative to Partisanship (Eerdmans, 2021), contains a very helpful analysis of abortion in the United States, the evangelical battle against Roe v. Wade, and what should be the Christian church’s response to the issue’s complexities.
