Abortion is a moral question. Most people, regardless of how they feel the question should be answered or who should do the answering, will agree with this. There may be some extreme pro-choice activists who maintain that the decision of whether to carry a fetus to term is purely a matter of taste, but I doubt there are many such persons or that, if confronted with the choice themselves, they would make it in the same spirit in which they decide where to spend their vacation.
Were abortion not a moral issue, then infanticide would not be one, either, because the difference between a 265-day-old fetus and a newborn infant is a matter of but a few hours. We recoil in horror at the thought of deliberately killing a newborn infant, though we may recognize a few circumstances in which that might become a tragic necessity. We must, therefore, recoil in equal horror at the thought of killing an infant that does not differ from the newborn in any respect other than that it receives oxygen and food via an umbilical cord instead of through its nose and mouth. I know of only one philosopher who defends both abortion and infanticide. I find his arguments not only unconvincing but monstrous; I suspect that almost everyone would react in a similar fashion.
The moral debate over abortion centers on the point in the development of the fertilized ovum when it has acquired those characteristics that entitle it to moral respect. This issue is sometimes framed to require one to define a “person” or to decide when “life” begins. I hope to show that it is so difficult to supply a persuasive answer to these questions as to raise the possibility that they are the wrong questions. Each implies that there is a moment at which life has not begun or a person does not exist and then, immediately following it, a moment at which life has begun or a person has come into being. In other aspects of our daily affairs, we do not accord moral respect on the basis of such precise off-on, no-yes distinctions. Rather, we grant greater and greater degrees of moral respect to people to the extent that they conform in their conduct and manner to widely shared standards of what it means to be human. A deranged homicidal maniac who is stalking the streets killing innocent victims is alive and a person, but we have few qualms about the police shooting him down on sight. An elderly man who has been a devoted husband and father but who now lies comatose in a vegetative state barely seems to be alive; an elderly woman who was once a loving wife and mother but who now acts bizarrely under the influence of advanced and irreversible Alzheimer’s disease barely seems to be a person—yet we experience great moral anguish in deciding whether to withdraw his life support or confine her to institutional care.
The moral qualms we have about abortion arise, I think, chiefly from the instinctive appeal of the infant, a feeling of compassion and attachment that is as natural as any sentiment that ever enters the human breast. Whatever we mean by life or the value we attach to it, few if any of us are likely to deny that our judgment is at root a moral one or to say that it is irrelevant to the position we take on abortion.
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That is not, in general, how the courts see the matter. Though passionate debates and angry confrontations over the morality of abortion are commonplace, the legal rules governing abortion scarcely refer to these moral issues. In Roe v. Wade, the decision that legalized abortion, the Supreme Court acknowledged that the state had an “important and legitimate interest in potential life,” but did not define that interest as a moral one. On the contrary, it went to great lengths to disavow any interpretation of those words that might seem even vaguely moral.
The Court majority ruled that during the first trimester a woman had an unqualified right to terminate her pregnancy at will; during the second trimester the state could regulate abortions only to protect the mother’s health; and during the third trimester, when the fetus was viable, the state, “in promoting its interest in the potentiality of human life,” might choose to forbid abortions, unless the woman’s health or life were at risk. Now, if the Court were concerned about protecting life on moral grounds, one might suppose that it would not only allow a ban on third-trimester abortions but would insist upon it. But no. In fact, by defining “health” to mean a woman’s “well-being,” the Court virtually assured that any state law that tried to ban even third-trimester abortions would be open to challenge.
The reason seems clear: if the Court’s position were to be even arguably defensible on constitutional grounds, it had to maintain that the fetus was not a person within the meaning of the Fourteenth Amendment. That amendment instructs the states that they may not deprive “any person of life, liberty, or property.” As Justice Harry Blackmun, who wrote the majority opinion in Roe v. Wade, readily acknowledged at the time, if a fetus were a person, then its right to life would be guaranteed. Hence, to uphold a right to abortion, the Court would have had to show that at some stage during its development a fetus was not a person. When it became a person, which surely had to occur some time before birth, an abortion would be an unconstitutional deprivation of life—in short, murder. Since the Court could not establish when a fetus changed from a nonperson to a person, it could not allow the fetus ever to be defined as a person, for then abortions would always be murder. Determined to create a right to abortion based on the assumption that the mother was a person with a “right to privacy” and the fetus was a nonperson with no rights at all, the Court when it came to defining what a state might do during the third trimester allowed the government to “regulate, and even proscribe, abortion,” but it did not insist that it do either.
This rights-based view of abortion held sway for two decades and, until somewhat modified by the Court in Casey (1992), was reiterated and extended by a series of decisions which not only implicitly denied that abortion was a moral question but struck down almost any state attempt to confront a pregnant woman with either practical or moral arguments about the possible consequences of abortion. In 1983 the Court overturned an effort by the city of Akron to impose a mandatory 24-hour waiting period between an application for an abortion and its performance. In 1986 it overruled a Pennsylvania attempt to require that a woman asking for an abortion be informed about the availability of prenatal care, child-support programs, and adoption agencies. An interesting feature of the Akron ordinance was that it supplied the woman with materials on the physical features of the fetus so that she would know what she was confronting.
In all these cases, the unifying theme of the Court majority was that abortion was a right that a woman alone was entitled to exercise; the state not only could not make that decision for her, it could not even try to influence how she made it.
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The result of this doctrinal position was, as Mary Ann Glendon of the Harvard Law School has shown, to make abortion policy in the United States more radical than that in any other industrial nation, with the possible exception of the People’s Republic of China.
In virtually every European nation, the right to abortion is either sharply limited or, if generally permitted in the early months of pregnancy, surrounded with constraining regulations in the later months. And in most of these nations, a woman alone cannot decide the matter. In England and Switzerland, for example, two doctors must certify the existence of legal grounds for an abortion. In Greece and Germany, a woman must seek a second opinion from a doctor other than the one who is to perform the abortion. When the abortion is to occur late in the pregnancy, many nations oblige the woman to present her case to a committee or board for approval. In Israel, an abortion is permitted in the first trimester, but only when approved by a doctor and then only when the woman is under seventeen or over forty years of age, the child was conceived out of wedlock, there is a risk of a genetic defect, or it is necessary to protect the mother’s health. Even Sweden allows more regulation than does the United States; there, abortion on demand is available, but only until the 18th week of pregnancy, while here it is available for at least 24 weeks.
The difference between the American and European approaches to the issue arises from how the decision was made and the philosophical framework in which it was cast. Here, the courts decided the matter; abroad, the legislatures decided it. Here, the issue was defined in terms of individual rights; there, it was often defined in terms of moral responsibility. Here, the legal rules were at odds with public opinion; there, they more closely approximated it.
Americans have made it clear in repeated opinion polls that they oppose both abortion on demand and a prohibition on all abortions. A majority will support abortions under carefully defined circumstances, such as a pregnancy that endangers the mother’s life or is the result of rape, particularly (and possibly only) during the first trimester. There has been little change in these views since Roe was decided. They seem to reflect an underlying belief that the fetus is entitled to some degree of moral respect, especially after it has developed for a few weeks, a degree of respect that does not preclude taking into account important competing considerations, such as the health of the mother. In short, Americans are philosophically at odds with the Justices who have fashioned their abortion law.
That gap was reduced somewhat by the Casey decision in 1992. Then, a bare majority of the Justices reaffirmed Roe but changed its meaning and application. Speaking through Justice Sandra Day O’Connor, the Court reasserted that a woman has a “constitutional liberty” to “some freedom to terminate her pregnancy.” But the state is now allowed to place restrictions on this right, even when the fetus is not yet viable, provided those restrictions do not impose an “undue burden” on its exercise. For the first time, the Court seemed to uphold such restrictions as a 24-hour waiting period, a requirement that teenagers obtain the consent of their parents (or, in special circumstances, a judge), and the mandatory provision of written materials about alternatives to abortion.1 Though the practical effect of the acceptance of these restrictions is uncertain, it is clear that for the first time the official opinion of the Court acknowledges the possibility that the fetus is entitled to some degree of state protection.
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But protection on what grounds? There are two possibilities—that the fetus is a person who, like the mother, has rights, or that the fetus is a form of human life that is intrinsically entitled to protection. In a recent book, Ronald Dworkin of Yale and Oxford has made this distinction and assessed its implications.2
Dworkin argues that if we think a fetus is a person with constitutional rights, then American opinions about abortion are inconsistent. In particular, the exceptions for rape and incest make no sense. If it is wrong to kill a person, and the fetus is a person, then it is as wrong to kill a fetus that is the product of rape or incest as it would be to kill a newborn infant who was conceived in that manner. If a fetus is a person with rights, then it has those rights whether it is in its first trimester or third and whether it is healthy or deformed.
If, however—Dworkin goes on—our views about abortion are shaped, not by the logic of rights but by the value we attach to human life, then American opinions become more coherent. As a fetus grows it becomes more lifelike, and the more lifelike it is the greater claim it has to our moral respect. If it is horribly deformed (owing, say, to a chromosomal abnormality or a prenatal injury), then it is less human and exercises somewhat less claim on our moral respect. Dworkin argues, I think correctly, that when the great majority of people think about abortion, they think in terms of the value and meaning of life, of the nature of humanity, and not in terms of individual entities asserting rights against one another.
Since Dworkin is a celebrated philosopher who has been strongly identified with “rights talk”—his first book was called Taking Rights Seriously—this modification of his views itself deserves to be taken seriously. Most academic political and moral philosophy is about rights; by contrast, most conversations among ordinary people about political and moral issues are not about rights, but about decency, duty, and self-control. As I have argued in The Moral Sense, the disjunction between how philosophers define philosophy and how people think philosophically constitutes a major strain in contemporary culture.
It is thus a noteworthy event for one of our leading academic philosophers to suggest that abortion under some circumstances may be wrong because it insults the intrinsic value of human life. But of course this leaves two large questions to be answered: When does the fetus acquire a life that has intrinsic value? And what role shall the government play in protecting that value?
I do not find Dworkin’s answer to either question very persuasive. Like most supporters of a woman’s right to abort, he finds no clear line that determines unambiguously when life begins. As I have already indicated, I agree with this judgment. Life emerges, or more accurately, the claims that developing life exert upon us emerge, gradually but powerfully. Everyone recognizes the force of this emergence because everyone (or, I suppose, nearly everyone) recognizes that aborting a fetus near the end of its term is morally a far more serious matter than aborting one shortly after it has become implanted in the womb. Similarly, a mother will usually grieve more deeply over the death of her three-year-old child than over the death of her newborn infant, and more deeply over the latter’s death than over the miscarriage of an embryo.
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Dworkin explains these near-universal reactions by the concept of investment. The death of an infant is worse than that of a fetus because a greater investment has been made in the former than in the latter. The investment is of two sorts, biological and social.
I think this is too narrow a view of the matter. It may be true, as Dworkin suggests, that the death of an adolescent girl is worse than the death of an infant because the adolescent’s death “frustrates the investments she and others have already made in her life.” But I doubt that this is the whole story.
The greater grief a mother experiences at the death of an infant than at the death of a ten-week-old fetus does not arise, I think, from the mother’s feeling that her carrying the fetus to term was more costly or constituted a greater waste of resources than carrying the fetus for only ten weeks. I obviously cannot speak for mothers, but I would imagine from what they say that their feelings on the occasion of the death of an actual or potential child do not reflect lost investment but lost humanity: the newborn infant is distinctly human, a person whom the mother loves and of whom she expects a full and mutually rewarding life, while the fetus is somewhat less fully human. Moreover, the mother sees the infant but not, ordinarily, the fetus. There are bonds in both cases, but the bonds are far greater and the loss far more poignant when the infant has been held in her arms.
Dworkin rejects this line of reasoning. Unaccountably, he writes that the greater gravity of a late-term abortion than of an early-term one cannot be explained “on the ground that fetuses more closely resemble infants as pregnancy continues.” To him, “increasing resemblance alone has no moral significance.” He gives no reason for reaching that conclusion, one that strikes me as wholly at odds with everything that could plausibly be surmised about a mother’s feelings. Suppose a woman has had, on different occasions, both an early miscarriage and a late-term one; suppose that she looked upon the two fetuses: can anyone doubt that the greater grief she would feel in the second case would to an important degree be caused by the close resemblance between the late-term fetus and a live infant?
Nor can the investment theory explain why a young mother might be willing to sacrifice herself for her young child (if, for example, both are in a burning building and only one can be rescued) or how onlookers would react to her refusal to make that sacrifice. There is greater investment in the mother than in the child, but I conjecture that many mothers would tell the rescuers to take her infant first even if that materially increased her chances of dying, and I further conjecture that if she did the opposite—insist that she be taken first and the infant second—most onlookers would feel she had acted wrongly, even cruelly. The onlookers’ criticisms would not be moderated by her later explaining to them that nature and society had made a greater investment in her.
I want to assert that it is precisely the degree of resemblance between a fetus and an infant that is of moral significance. We should focus on this point if we believe, as both Dworkin and I do, that because society has an interest in making certain that the intrinsic value of human life is respected, it also has an interest in “maintaining a moral environment in which decisions about life and death are taken seriously and treated as matters of moral gravity.”
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Before turning to the policy implications of that view, let me take up in general terms what Dworkin thinks the government is entitled to do. Here he makes what, if I understand him correctly, is an astonishing claim.
To him the moral issue concerning abortion has to do with the intrinsic value of human life. I, and I think most people, agree. To him, human life can only have intrinsic value if we think it is, in some sense, sacred. On this, many people will agree, some will disagree. But if fetal life enjoys some degree of moral respect because it is sacred, then, he says, the government of the United States cannot regulate abortions, at least in the early months of pregnancy, without violating the First Amendment prohibition on the enactment of laws respecting the establishment of religion. Since our disagreements about the value of life are at bottom spiritual, the legislature cannot, without violating the separation of church and state, impose one concept of the spiritual on people who have a different concept.
Lest I be accused of misrepresenting Dworkin, let me quote him:
A state may not curtail liberty, in order to protect an intrinsic value, when the effect on one group of citizens would be special and grave, when the community is seriously divided about what respect for the value requires, and when people’s opinions about the nature of that value reflect essentially religious convictions that are fundamental to moral personality. . . . I conclude that the right to procreative autonomy, from which a right of choice about abortion flows, is well grounded in the First Amendment.
But abortion is not the only case that invokes our concern for protecting the intrinsic, perhaps sacred, value of human life. We also oppose infanticide and homicide for these reasons. Why do we allow the legislature to pass laws prohibiting them? Given the criteria Dworkin sets forth in the statement cited above, it can only be that “the community” is not “seriously divided” about these matters. But suppose it were. Suppose this were 1944, not 1994, and lynchings were commonplace in certain parts of the country. People were then “deeply divided” over what respect, if any, was due to the life of a black man. Some people genuinely believed that only vigilante justice could maintain a society based on the (to them) necessary principle of white supremacy. Should people who disagreed with this view—who felt that the life of a black man was entitled to as much respect as the life of a white one—have been forbidden from enacting their views into law because to do so would have violated the separation of church and state?
Or suppose that a legislature is trying to decide whether to enact the death penalty. The legislators will be deeply divided over the issue. Some will think that all human life, even that of convicted murderers, is sacred; others will argue that the life of a victim deserves great respect and the life of the murderer none at all. Lest there be any doubt as to the religious basis of some of these views, both sides will quote from the Bible. Can the legislature vote for the death penalty (or even vote against it!) without violating the First Amendment? If the views of former Justice William Brennan opposing capital punishment had prevailed, would he have been placing the Eighth Amendment (barring cruel and unusual punishment) at war with the First Amendment?
Suppose, finally, that American armed forces were to conquer a nation in which many people practiced infanticide. (There may not be many such places now, but at one time there were.) Suppose, further, that the conquest was defensible on moral and legal grounds. If the President were to order his commanding general to make infanticide illegal in the occupied land and to stamp out its practice by whatever means seemed appropriate, would he be acting contrary to the spirit of the First Amendment to the Constitution?
There is perhaps one legal doctrine that may appear to be analogous to Dworkin’s position on abortion. The courts have refused to allow the government to conscript as soldiers men who are, on religious grounds, conscientiously opposed to war. In doing this, the courts have given the widest possible meaning to the phrase “religious grounds,” so that it is not necessary that the objector actually believe in God. But this is not really analogous at all. The courts have not held that war and conscription are impermissible because the community is deeply divided over the Tightness of war and that this division reflects spiritual attitudes toward life. Nor have the courts struck down on these grounds any declaration of war.
I believe that the reason Dworkin is unwilling to allow legislation restricting abortion (except, perhaps, in the last trimester) is that, contrary to the implications of his moral argument, he is at heart a person who sees this issue entirely in terms of rights. A woman’s right to “procreative autonomy” is trumps. He suggests that this right ought to be exercised with due regard for its moral seriousness, but then rejects virtually every legislative enactment that would have the effect of stressing its moral seriousness or heightening a woman’s moral awareness. Though he allows in principle for some (unspecified) pre-abortion restrictions before the fetus becomes viable, in practice he is against almost every law that has been passed with the intention of influencing—just influencing, mind you, not dictating—how a woman should make her decision. Dworkin opposes a requirement that the spouse be notified or that a waiting period occur before the abortion takes place. (He supports a required waiting period before buying a gun, but not one before having an abortion!) Even a 24-hour waiting period might, in his view, make it more costly for some women to have an abortion and thus might deter them from doing so; therefore, such a brief period must be unconstitutional.
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I wish to take more seriously than Dworkin the moral approach to abortion and see where it might lead us. To some people, it requires one to ban all abortions because life begins at the moment of conception. This position has the apparent virtue of drawing a bright, clear line. But I am not convinced that such a bright line can in fact be drawn because I am not convinced that there is such a thing as the “moment of conception.”
Long before conception, each female egg and each male sperm is alive and each contains within it, encoded in DNA, human life. Though the production of a human being cannot begin until the egg and the sperm are united in the zygote, the elements (some would say the blueprints) of human life already exist. Conception does not summon forth life where none existed before; it permits life to begin developing toward its infant form. If the penetration of the egg by the sperm is the crucial moment, then one must oppose not only abortion but many kinds of contraception, since some of these—such as the IUD and some birth-control pills—prevent the already fertilized egg from becoming implanted on the wall of the uterus. That is the position of the Catholic Church, and it has the merit of complete consistency.
It is consistency purchased at a high price, however, for it requires one to believe that contraception is immoral. I do not think most people anywhere believe that or can be made to believe it. Nor do I believe it. A sperm and an egg, whether separate or just joined, do not arouse the moral sentiments that we associate with human life. It is just as well that people feel this way, because not every zygote becomes an embryo. Many fail to implant on the uterine wall; of those that do implant, perhaps no more than half survive for two weeks. According to one expert (Arthur Hertig), only about one-third of all zygotes survive. Nature flushes away a large fraction of fertilized eggs. If we think that it is the moment of conception at which sacred life begins, then we should be searching for ways to induce more frequent implantations and expressing our anger at how an unfeeling nature is defying our moral beliefs.
But if the line is not drawn at conception (or implantation), then where? Surely it must be drawn well before birth, since the fetus is viable many weeks before a normal delivery. Yet I doubt that a sharp line can be drawn at all. Embryonic and fetal development does not proceed by crossing lines; it is a continuous process governed by no fixed blueprint but by the iteration of many succeeding cell divisions, the outcome of which it is impossible to foretell.
But life in general is filled with circumstances in which the alternatives are not clearly defined. I cannot define twilight, but that does not mean that I cannot tell the difference between night and day. Our inability to draw a line should no more disable us from making moral judgments about a fetus than it prevents us from making such judgments about children or adults. We cannot specify in advance, for all cases, when a promise is so binding that it must be obeyed whatever the circumstances and when circumstances permit one to ignore it. We have an obligation to act fairly, by which I mean treating equals equally, but we cannot draw clear lines that specify over all or even most cases what constitutes an equality of condition that requires equality of treatment. Though we cannot make the specifications, we nonetheless feel, and usually feel quite strongly, that keeping promises and acting fairly are moral obligations.
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Though no line can be drawn, we can identify, I think, the rough stage in embryonic development when, if we are made unmistakably aware of it, our moral sentiments begin to be most powerfully engaged. People treat as human that which appears to be human; people treat as quasi-human that which appears quasi-human. Imagine a room on the walls of which are arrayed, in chronological order, exact color photographs of the human embryo, suitably enlarged, from first fertilization, through early cell divisions and implantation, through the emergence of various human, or human-like, features, and on to the complete fetus the day before normal delivery. There would be 266 photographs in all, one for each day of embryonic or fetal development. Suppose we then ask a variety of people, but perhaps especially women, to examine these photographs and to tell us in which one, or in which small cluster of them, they first see what appears to be “a baby.” Having examined such pictures, most people, I speculate, would select those that represent life at around seven to nine weeks after conception.3
In the first and second weeks of pregnancy, all that is visible, and just barely visible, is a fertilized egg, or zygote. By the fourth week, some organs begin to appear and function, but in no recognizably human form. In the fifth week, a creature is visible, but one that is not materially different from a mouse or pig. By the seventh week, distinctly human arms and legs are evident and not only the eyes but the eyelids are visible. In the eighth, though the fetus is but an inch and a half long, the fingers are distinct and the genital organs, though still unsexed, have appeared. At the end of the eighth week, doctors stop calling what they see an embryo and begin calling it a fetus. By the tenth week at the very latest, the fetal face has a clearly human appearance.
It would be even better to view motion pictures rather than stills. A pregnant woman will feel fetal movement after eighteen or nineteen weeks of pregnancy—a feeling, I am told, that is an inexpressible source of wonder and joy—but in fact the fetus has already been moving—flexing, jerking, and hiccuping, too gently for the woman to sense it—since the ninth or tenth week.
Now, my speculation may turn out to be incorrect. At the very least, the viewers’ responses to these pictures will cover a range, with a few saying “it’s a baby” as early as the fifth week and a few withholding that judgment until perhaps the tenth week. I would be astonished if any withheld that judgment for as long as the end of the first trimester (roughly, the twelfth week).
Suppose, now, that a woman considering an abortion were brought into this room and shown these pictures. She would be told something of this sort: “You are X weeks pregnant, as near as we can tell. The embryo now looks about like this (pointing). In another week it will look like this (pointing). You should know this before you make a final decision.”
Some will complain that this exercise would put a woman under moral pressure. Yes, it would; that is exactly why I think it should be done. The problem with deciding on an abortion without a visual encounter with the fetus (or embryo) is that one is relieved, to a degree, of any sense of the extent to which another life may be at stake.
I do not propose this exercise because I am convinced that no woman, seeing the pictures, would agree to an abortion. There are many considerations that will enter into her decision, and some will, on balance, lead her to abort. Nor do I assume that most women now make this decision lightly or unthinkingly. I propose this procedure because it is likely to induce every woman to make a fully informed moral decision.
She will, of course, already be generally aware that abortion is a grave step and vaguely aware that another life may be at stake. But these sentiments will, of necessity, be somewhat vague or unfocused. She will be keenly aware of whatever is at stake in her personal circumstances—her married or unmarried status, her career plans, her economic or social position—that may incline her to abort. She will not be as keenly aware, I suspect, of what is at stake in the development of the fetus. We all find it easier to prefer an outcome we value and can visualize to one that we value but cannot visualize. Being required to see—literally, see—both sides of the issue makes the moral issue clearer and heightens the sense that the choice is, inescapably, a moral one.
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All of us are in asymmetrical moral positions of this sort at one time or another. We worry more about a stray cat when it is at our doorstep than when it is out of sight. We may have a policy about giving to a beggar, but no policy quite prepares us for a personal confrontation with one. A pilot will find it easier to drop a bomb on a building in which women and children are hiding than to place a bomb in that building having first seen the women and children in it. A soldier may find it less troubling to shoot an enemy he cannot see than one with whom he has suddenly come face to face. A business executive finds it simpler to “downsize” his firm than to fire a veteran employee who is standing before him. For our moral sentiments to provide a useful guide to our actions, it is often necessary for us to experience, and not simply imagine, those sentiments and the conditions that evoke them.
Some abortion clinics defer to—or play on—this asymmetry in the woman’s feelings. A woman goes to a clinic for a pregnancy test; a day or so later she telephones to get the result. The clinician begins by asking, “Will pregnancy be good news or bad news?” If the woman says, “Bad news,” the clinician will immediately ask, “Do you want to terminate?” The stage of fetal development is never mentioned. The word “abortion” is never used. She is simply scheduled for a “procedure.”
The alternative that I am suggesting is, in effect, followed when a doctor has reason to think that a woman is carrying a seriously deformed fetus. In a famous case in 1962, Sherri Finkbine of Arizona followed this procedure when, knowing she had taken thalidomide, she saw pictures, or at least heard vivid descriptions, of the horribly deformed babies that had been born in Europe to women who had also used the drug; unable to obtain an abortion in Arizona, she got one in Sweden. (The fetus was badly deformed.) My procedure does not prejudge the outcome; it only clarifies the moral choice. I suppose some women (I imagine very few) would abort what appeared to them to be a normal human baby. But at the very least they would not do it in feigned innocence or real ignorance.
The theologian Paul Ramsey once described what the current situation now entails:
In this instance, the darkness of the womb makes unnecessary resort to a mortician’s art to cover the grim reality. As long as we do not see the deaths inflicted or witness the dying, the direct killing of nascent life has only to be compared with the greater or lesser convenience of other solutions in an antiseptic society.
Shine the photographer’s light into the dark womb, and things change, not perhaps as much as Ramsey would have liked—he was a stern and uncompromising foe of abortion—but to some material degree. Even after viewing the photographs, a woman might elect an abortion long after the fetus had become distinctly baby-like. Her life might be in serious danger, or delayed fetal abnormalities might appear. But I believe—or, at any rate, I very much hope—that only such grave circumstances would lead to abortions much beyond the eighth week.
And that includes abortions when the mother has been the victim of rape or incest. In a purely rights-only perspective on abortion, a pregnancy resulting from rape violates a woman’s right not to become pregnant against her will. That violation would justify an abortion even at a late stage in the pregnancy. But a moral perspective would suggest that, if there is to be an abortion, it ought to be before the fetus appears human, which is to say precious, innocent, vulnerable, appealing; if the woman waits beyond that point, then a moral perspective would suggest that the baby, however conceived, should be carried to term and, if the woman wishes, put up for adoption.
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Some readers will note that my position on abortion is rather similar to that of certain philosophers, such as Aristotle, and medieval theologians, such as St. Thomas Aquinas, who suggested that a fetus does not become a person until it is “ensouled” or “vivified.” Aristotle suggested that movement, or quickening, occurs in the male fetus after about 40 days and in the female one at about 80 days, although he immediately added that this was only a rough estimate. Apart from the questionable distinction between the two sexes, it is my conjecture that Aristotle, who was the greatest biologist of pre-modern times, based his judgment on an inspection of actual fetuses. According to modern embryological research, Aristotle was roughly correct to find that the fetus acquired human features and began to move at (to take the midpoint between 40 and 80 days) 60 days: about 8 or 9 weeks.
Aristotle’s view on this matter influenced Aquinas, though the two thinkers came to very different conclusions. Aquinas argued that the human, rational soul was not present immediately after conception. Drawing presumably on Aristotle’s concept of quickening, Aquinas suggested that only a human form with human organs could contain a human soul. Before a fetus was a person, it was an animal. A newly conceived embryo was alive, but to Aquinas and those who followed him it did not become a rational, divinely created being until it had been formed by the soul, much as soft wax is formed by a seal. Thinkers holding this view might regard the abortion of an unsouled fetus as a sin, but only the abortion of a souled one as murder.
This was the theory of “mediate animation,” which gained the approval of many Church authorities. As early as the 4th or 5th century, long before the time of Aquinas, St. Jerome had written that “seeds are gradually formed in the uterus, and it is not reputed homicide until the scattered elements received their appearance and members.” Jerome, like St. Augustine, did not claim to know for certain when the fetus received a soul; only God could know that. But aborting an ensouled fetus was regarded as far more grave a matter than aborting an unsouled one. By the 12th century, both the theologian Gratian and Pope Innocent III were prepared to say that it was not homicide to kill a fetus until after it had been ensouled. This view received the support of Gregory IX in his decretals, but at the same time he made clear that aborting any fetus, however young, was a sin for which penance was required. Some Catholic theologians even suggested that killing an unformed fetus in order to save the life of the mother might not even be a sin, much less a homicide.
By the 19th century, however, Church doctrine on this matter had begun to harden. The reasons, it has been suggested, were twofold. First, modern biological science was casting doubt on Aristotle’s theory of embryological stages; in the newer view, the embryo was biologically alive from fertilization on. Second, abortion was apparently becoming more commonplace; rare events might be met with equivocal theology, but routine events required clear rules. One by one the exceptions permitting abortion were eliminated and the penalty of excommunication was extended to women who procured an abortion. By the end of the 19th century, abortion was being condemned, and one Vatican ruling even suggested that an ectopic, or tubal, pregnancy (which physicians knew constituted a serious threat to the life of the mother) could not be surgically ended.
In 1930, Pius XI issued an encyclical that denied there were any grounds for allowing abortion at any stage in fetal development. The Bible does not mention abortion, but to Pius it seemed clear that killing a fetus violated the commandment against killing; every life was sacred, and since embryos were alive, every embryo was sacred. When uncertain knowledge and rare events permitted complex judgments, the Church uttered them, but when events—greater knowledge, common events—forced its hand, the Church drew a clear line and stuck to it.4
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But was drawing such a line really necessary? John T. Noonan, Jr., a profound historian of Church doctrine from whose writings I have drawn much of the account that appears above, thinks it was. The central question is, “How do you determine the humanity of a being?” To Noonan there is only one possible answer: if you are conceived by human parents, you are human. He recognizes that for several centuries some important Catholic theologians and even some popes gave a different answer, but on reflection all these other answers had fatal weaknesses. Viability is not a guide to an embryo’s humanity, since viability can be determined by the skill and resources of modern science; in principle, any fetus might be made viable. Nor is the capacity for having sensory experience a determinant of humanity, because the fetus long before birth has such experiences, and some adults, owing to neurological damage, might stop having experiences without ceasing to be human. I agree with these views.
Noonan also rejects the test I have proposed, but for reasons I do not find convincing. He acknowledges that the grief of a woman over the miscarriage of a fetus is not as great as the grief she would feel over the loss of a child, but he opposes any test based on such feelings because “feeling is a notoriously unsure guide to the humanity of others.” He grants that a mother is more attached to an infant she can see than to a fetus she cannot, but says that “sight is even more untrustworthy than feeling in determining humanity.” He reaches these conclusions by way of this analogy: since people are known to discriminate against others on the basis of color, race, religion, and language, then feelings and sight are unreliable guides to what is human and thus deserving of respect.
But this is not, I think, a proper analogy. There is no doubt that our feelings about others are sometimes hateful or that seeing the other person does not always draw us to him. But these consequences of the natural human tendency to prefer our own kind do not apply, except in the rarest of cases, to our own offspring. Quite the contrary: that we are led by nature to prefer our own kind, and especially our own children, is the surest reason for believing that we will cherish them, and cherish them the most when we can see and touch them.
Many couples give birth to infants who are not like them in color, configuration, or expression. The Mendelian laws of inheritance ensure that many blond parents will have a black-haired child and many dark-skinned parents will have a fair-skinned one. It may be that some parents become especially fond of babies who are “just like them,” but I am aware of no evidence that parents are inadequately attached to infants who differ physically from them. Indeed, I am forcefully struck by how many parents will lavish care and affection even on babies born with terrible deformities or incurable illnesses. Far from being an unreliable guide to affection and moral respect, sight and touch, and the feelings they generate, are the surest possible guarantees of love and care when it comes to infancy.
In sum: saying that a human being with full and absolute claims on our moral respect exists from the “moment” of conception is not consistent with either modern science or natural sentiments; the Catholic Church itself long recognized that a difference exists between a formed and an unformed fetus; whether the forming of a fetus has natural or supernatural causes does not alter the greater feeling a parent has for a fetus the more fully formed it is; and the struggle to sustain a clear, simple line as the sole basis for a judgment about the morality of abortion does not accord with either the sentiments or the practices of most decent people. Therefore, one should try to clarify the moral issue in ways that draw on the natural respect people have for innocent life by making them, and especially pregnant women, more fully aware of the presence of that life and of the claims it makes on us.
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I have yet to discuss how, if at all, the law should take account of this position. If my experiment were carried out and there developed a consensus as to when an embryo became a baby, should the law recognize this and ban abortions after that period? I believe that it should, provided there were exceptions for grave and special cases (such as a severe deformity), and even then only after the woman had obtained the advice and consent of disinterested and expert parties. But before voting for such a law, I would prefer to wait and see what would happen if my procedure were followed.
For it to be be followed, the Supreme Court would have to change its position. The necessary changes are prefigured in the language of the Casey decision. It rejected the trimester framework of Roe; it reaffirmed the state’s legitimate interest in “the protection of potential life”; and it explicitly held that even though a woman alone must choose whether to abort before the fetus is viable, the state is not prohibited “from taking steps to ensure that this choice is thoughtful and informed.” Even in the earliest stages of pregnancy (I would have said, especially in the early stages), the state “may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments [I would have said, moral arguments] of great weight that can be brought to bear in favor of continuing the pregnancy to full term.” But having said that, the Court then went on to rule out any regulations that would create an “undue burden” or present “a substantial obstacle” to a woman seeking an abortion. I suspect that my procedure would fail the undue-burden test, though I can find no philosophical argument in Casey as to why it should.
I would much prefer the Court to give greater latitude to state and federal legislatures to define a policy in this area, one that takes as its first principle the protection of human life. This is what the French statute, passed in 1975, does. It states that “the law guarantees the respect of every human being from the commencement of life. There shall be no derogation from this principle except in cases of necessity and under the conditions laid down by this law.” The law goes on to specify the circumstances under which the principle can be violated, describing them as matters of “necessity.” As it turns out, “necessity” means that a woman who, during the first ten weeks of pregnancy, finds herself in “distress” is entitled to terminate her pregnancy after she has received government-mandated counseling. But the final decision is hers.
Mary Ann Glendon has endorsed the general principles of such an approach, pointing out, rightly, that it elevates moral considerations over purely personal preferences or individual rights, and that even though an elective abortion remains available during the first ten weeks, “the way in which we name things and imagine them may be decisive for the way we feel and act with respect to them.” Her Harvard colleague, Laurence Tribe, dismisses such a view; to him, a policy that is a mere formality is a meaningless hypocrisy, whereas one that has any effect “disempowers and disrespects women.” To him, even a moderate regulation of abortion “trivializes women.” This is too much even for Ronald Dworkin, who chides Tribe for being a prisoner of his rights-only mentality.
Several people, including President Clinton, have said that abortions ought to be safe, legal, and rare. So long as the issue is dominated by pro-choice activists like Tribe who see the matter largely if not entirely in terms of women’s rights, abortions will be safe, legal, and commonplace. No restrictions at all will be possible because, by constraining a woman’s choice, they will “disempower” or “trivialize” her.
I do not think that there is any possibility of a consensus among pro- and anti-abortion activists, and as long as the matter is defined in terms of rights, the pro-abortion activists will win. For hardly any politician is willing to vote against “rights.” By contrast, the American people are less preoccupied with rights and more respectful of life. Even though they are ultimately willing to let a woman make the final decision, they want to ensure that it is a morally constrained and fully informed decision.
I wish that this nation could start afresh, formulating de novo a legislative policy on abortion based on the fundamental premise that abortion is a moral question but not one that invariably admits of only one answer in all circumstances. Most other nations have done just what this country seems incapable of doing. This is the price—and I think it a very heavy price indeed—we have paid for turning so important a matter over to Justice Blackmun and his colleagues.
What kind of people are we that we cannot say, legislatively, that human life is precious, that an infant’s life is perhaps the most precious of all, and that we want to ensure that women are placed in a “moral environment in which decisions about life and death are taken seriously and treated as matters of moral gravity”? Many women, perhaps most, already treat this matter as a morally grave issue, but many do not—it is for them a form of birth control—and even those who do may not always clearly see, and thus fully sense, what is at stake. Let them see it.
1 I say “seemed to hold” because these restrictions were accepted by Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy, but apparently rejected by Justices Harry Blackmun and John Paul Stevens, whose partial concurrence with their three colleagues was necessary to produce the five-to-four verdict reaffirming Roe. What state restrictions will in practice pass constitutional muster remains to be seen.
2 Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom, Knopf, 288 pp., $23.00.
3 Readers not familiar with the magnificent color photographs of embryos and fetuses made by Lennart Nilsson should examine his A Child is Born (Dell, 1990).
4 Jewish teachings about abortion are at least as complex as Catholic thinking. Though some people speak confidently of “the Jewish position,” my amateur reading of the summary accounts reveals considerable differences among the authorities. It seems clear that abortion to protect the life of the mother is permitted. Abortions for other than therapeutic purposes are treated as morally grave matters, but there is no codified position as to what constitutes “grave.” One modern rabbinical authority describes elective abortions as “akin to homicide,” while another would permit them if there were a good reason. Among such reasons is the anguish of the mother at the prospect of a deformed child. See the Encyclopaedia Judaica (1971), Volume I, pp. 98-101, and David M. Feldman, Marital Relations, Birth Control, and Abortion in Jewish Law (Schocken, 1974), chaps. 14-15.
