My uncle, Marc Newman, is a nationally-known prolife speaker. I recently had an interesting exchange with him over email on the subject of legal restrictions on abortion, and I received his permission to publish the exchange on this blog. Below is the conversation in its entirety (with only cosmetic edits).
—
Hi Uncle Marc,
I was having a discussion with a friend the other day about a blog post that has gone semi-viral, in which the author recounts his disillusionment with the prolife movement. It wasn’t so much this author’s experience that my friend and I were discussing, but his criticism of the nebulous political and legal goals of some prolife organizations. My friend and I both believe abortion to be murder. However, we were trying to think through the legal, political, economic and social consequences of various different sorts of legislation (and enforcement) against abortion.
My question for you is: if tomorrow (in an unlikely scenario) Roe were overturned and you were appointed by President Obama as the “Abortion Czar” with complete freedom to dictate federal policy (and let’s just throw in state policy, too) toward abortion in our country, what would that legal framework look like? What would be the penalties for abortion? Would they be enforced against mother, doctor and father? If there were a “life of the mother” exception, what would be the criteria and how would they be enforced? What sorts of pragmatic steps would you take in the area of public health, conceding (as you must) that some will circumvent the legislation and die in botched back-alley procedures, and that condom usage reduces the likelihood of pregnancy and incidence of abortion?
I am interested in your response as someone who is heavily invested in this cause as a proliferator of prolife ideas. (I have always wanted to use “proliferate” in a sentence with “prolife,” and now my dream has come true. I have some very modest dreams.)
Benj
—
Hi Benj,
What an unlikely scenario — Obama naming me to anything but a domestic pro-life list of people to watch closely (I’m probably on it already)– but I will try to answer the best I can.
If Roe v. Wade were overturned tomorrow, the abortion issue would return to the states. States such as California and New York would continue to have legal abortions with nearly no restrictions. States such as Utah and Texas would likely ban all abortions other than for rape, incest, and threat to the life of the mother. As “Abortion Czar” there is nothing that could be done unless there was a Human Life Amendment added to the Constitution.
Penalties for abortion would be severe. My guess would be life in prison for the doctor. Once education was widespread, and everyone really knew that Planned Parenthood had lied to women all these years, once an educational culture instilled in young people the truth about the humanity of the unborn child, then I would imagine that conspiracy charges would be brought against a woman seeking an abortion, as well as anyone else involved in the procuring of an abortion. Now when you make such a claim now, it makes people squawk. But let’s make an analogy. There was a time in which black people were considered inhuman. People were so invested in keeping slaves that they fought a war to protect that right. Once slaves were freed and the Civil War (or, if you are from the South, “The War of Northern Aggression”) was completed, it still took quite awhile for justice to be served consistently on those who mistreated or killed black people. But can you imagine anyone trying to get away with any kind of “less than human” argument today in a court of law in America were they to participate in the killing of a black person? It might take time, but once people are aware of both the humanity of the unborn child and the legal penalties attached to aborting children (or Child Murder as the suffragettes called it), then choosing to abort would be accompanied by choosing to bear the penalty if one is caught, prosecuted, and convicted.
Life of the mother exceptions are rare, and there are clear diagnostic “tells” — ectopic pregnancy, for example, or uterine or cervical cancer. C. Everett Koop argued that during his entire practice he had NEVER heard of a woman needing an abortion to save her life. The general statistic is that such abortions make up less than 1% of all abortions. You don’t “enforce” an exception. You might mean, how would they be determined. I would argue the same way all medical issues are determined, by a couple of doctors willing to testify to the presence of a life-threatening condition. Now, will there be unscrupulous physicians who will lie in order that some well-to-do people can obtain abortions? Probably. But making it illegal would have a tremendous influence on abortion rates. The law educates people. Where permissive abortion laws are the norm, abortions skyrocket and people feel less stress about aborting — in such cases, the law encourages abortion. Conversely, when abortion is illegal, the law educates people that the unborn are valuable and protected, and this creates a more life-affirming culture. There will always be abortions, but if the solvency threshold for passing a law against any behavior had to be 100%, murder would be legal.
I don’t know that I “must” concede the argument concerning back-alley abortions, if you are envisioning some old crone with a coat hanger. Back alley abortions were called such because women would enter the clinic through a door in the back alley. Most were performed by licensed physicians. The reasons so many died was not because of horrific conditions, but because of the unavailability of antibiotics. Women die every year from legal abortions today. For public health, I would launch a nationwide campaign stressing the humanity and value of the unborn, with units on fetal development mandatory (perhaps there would be a field trip to a pregnancy center where kids could see the unborn on a 3-D ultrasound). Where appropriate, education about the change in the law would be mandated, so that people would know it was coming, what the penalties were, and what alternatives were available: adoption and parenting.
On sex education, I would argue for an emphasis on chastity. In a sex-obsessed culture, as is ours, pitching chastity would be tough. Public schools will likely continue with “comprehensive sex education” but condom usage among teens is scattered at best. I ran across a study once concerning the use of condoms between partners, one of which was HIV positive. The study showed that condoms are a great preventive measure against HIV, however, a substantial portion of the sampling had to drop out of the study, because they had to be 100% compliant with the rules of the study which demanded that a condom be used in every sexual encounter. If the fear of getting AIDS is not enough to encourage you to wear a condom, how well will it work with teens who think they are invulnerable (and who, of course, can’t even remember to bring a pencil to class). Stressing condom usage actually results in an increase in pregnancy. Follow me here. Condoms, used consistently, would massively decrease pregnancy. But encouraging condoms among unmarried people is a cultural green light for sexual activity. People in the heat of the moment are inconsistent in their usage, so if there is substantially more sex, but only somewhat more condom usage, the end will be more pregnancies. We have been encouraging condom usage in high school sex ed for decades — have you seen a substantial decrease in teen pregnancy? (There is a decrease here and there, but the scenarios are complicated). Some forms — IUDS and versions of the pill — would have to be outlawed because they often work as abortifacients.
—
Marc,
This is excellent, thank you. I think it’s important to recognize the difficulties inherant in enforcing any legislation. But the impossibility of 100% enforcement doesn’t mean that we shouldn’t legislate against a certain behavior, as you point out below.
think hard, think well 
I believe you’re taking half the issue for granted. The most important hurdle in the debate is simply establishing the premise personhood for an unborn fetus, legally and ethically. Many of the other sticking points for implementing an abortion ban as public policy are medically-based (e.g., endangerment of the mother, medical safety, etc.) and so it stands to reason that legal enforcement requires an objective and measurable definition for “personhood” to be established.
The problem is, I don’t know that’s entirely possible. For all the markers of life we can quantify in an unborn fetus, the bright line dividing a “person” from a mass of cells is in the eye of the beholder. Contrary to what we would like to believe, this isn’t an education issue – both sides are rooted in rational thought, but simply come to divergent conclusions, as a society of moral pluralism often does.
How do you propose we develop public policy that achieves the aim of abortion restriction with such a fundamental medical ethics question unresolved?
Hi T –
I apologize in advance for this lengthy post. You raise a very important question. I did not intend to dodge it, it simply was not a part of the question I was asked to answer. In a blog response, one cannot cover all conceivable contingencies.
The best books that address the questions you raise are Randy Alcorn’s Pro-Life Answers to Pro-Choice Arguments, Scott Klusendorf’s A Case for Life, or, if you bent is more toward the philosophical, try Francis Beckwith’s Politically Correct Death, another challenging article is “The Morality of Abortion” by
Gary M. Atkinson, published in the _International Philosophical Quarterly_ 14 (3):347-362 (1974). In this essay, Atkinson demonstrates that the arguments in favor of abortion on demand, if true, are equally valid for _involuntary_ euthanasia.
I will try to address your questions/comments:
The short answer, is that distinctions between human life and personhood are inherently arbitrary and subjective. You are asking me to meet an impossible burden — an objective standard for a subjective term. Human life, however, is an objective term — everyone, even Planned Parenthood, knows when it begins. I have their own publications from the 50s and 60s (I’d be happy to show them to you) where they admit that human life begins at conception. California Medicine (the official journal of the California Medical Association), in 1970 — three years before Roe v. Wade — wrote, in an article favoring abortion (and hinting at euthanasia to come) – “…human life begins at conception and is continuous, whether intra- or extra-uterine, until death.” You can read the entire article here: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1501546/pdf/califmed00141-0097.pdf. Camille Paglia admits, in Salon magazine a few years ago, again, in an article favoring abortion: “Hence I have always frankly admitted that abortion is murder, the extermination of the powerless by the powerful. Liberals for the most part have shrunk from facing the ethical consequences of their embrace of abortion, which results in the annihilation of concrete individuals and not just clumps of insensate tissue.”
There can be no bright line distinction when the standard shifts according to political whim. This is why Daniel Callahan argues in Abortion, Law, Choice, and Morality “When it is a question of human life, there is a need to act in ways that are not arbitrary. A fundamental basis of human freedom and security is that human beings will not be subject to arbitrary, shifting definitions of ‘human’ (393-394). In other words, the human/person distinction is crafted not in order to determine whether abortion should be limited, but in order to craft a class of humans that other humans are permitted to kill. Keep in mind, this is just a very brief answer to your question – but if you are truly interested in engaging it, please read the books and articles recommended for a more thorough answer.
Finally, even the argument suggested in your post should cause us to err on the side of caution. If people cannot determine with certainty when human life begins, or when personhood can be attributed in a bright line way, why should the default position favor abortion? If you saw something rustling around in a dumpster, you would not take out a gun and shoot it until you determined whether it was an abandoned baby or a wolverine. But what the abortion advocacy mindset argues for is a “kill first and discover later” perspective that is philosophically untenable, unless one simply wants to slip over the edge into Nietzsche’s philosophy and argue that the strong should exert their will to power and thereby arbitrarily determine the fate of the weak.
I addressed, briefly, the endangerment of the mother issue above — it is extremely rare, and when present the death of the unborn child is not the aim, it is the consequence of the treatment protocol for the disease/condition.
In short, the problem is that our laws simply do not comport with what we know about unborn children, not for medically objective reasons, but for political reasons. The shifting ethic predicted by California Medicine 42 years ago is coming to its conclusion now. Birth selection and birth control (and they are referring not just to contraception but abortion) are inevitably giving way to death selection and death control — and recall that this is the journal of the California Medical Association, not Sarah Palin.
I will close by recounting one of the most thought-provoking editorial cartoons I have encountered. In it, an elderly woman lies in a hospital bed, surrounded by medical equipment and three of her obviously greedy children, who look like vultures ready to dine. One of them is reaching for the “plug” in order to pull it so they can get their hands on mom’s money. The mother, helpless to stop them, says, in the single line below the cartoon, “I should have aborted you when I had the chance.”
Thanks for the reply, and I appreciate the time you took in crafting your piece (this is Taylor – I messed up the name field in the first post somehow). Issues like this can’t actually be discussed in shortform, so I apologize for my own lengthiness here…
I realize you had to start the post from a point where personhood is settled; it would be 10 pages before you even got to the question itself! My reply was based on what I see when the issue is debated in public and in politics – there’s a gap in each side’s starting assumptions, and so everyone just talks past each other.
The question was also admittedly completely unfair, but that was honestly the point. From a public policy perspective (which is from where I think, ironically, the issue is best examined), limiting or banning abortion is nearly untenable. A good policy requires objective definitions as a framework from which to hang the structure of its logical arguments. Fetal (or zygotic) personhood, as you stated, is not really possible to pin down in this way, yet lawmaking requires it; therefore, a fundamental question is how to reconcile this conflict.
The examples you provided make some good points. I would take issue with the Planned Parenthood articles, however, since holding an organization to statements it made 60 years ago doesn’t hold water; people come and go and policy positions evolve. The others do hit at the core belief I think nearly everyone has – after conception, *something* is created that is, morally, more than simply a collection of growing cells. But is that something equal to a viable, living person?
The distinction between “fetal rights” and “human rights,” to use your Civil Rights-era example, is that personhood for a human, regardless of race, can be objectively verified through obvious means. The fetus, while more than just cells, is in a subjective limbo that many people (rationally and thoughtfully) believe does not afford it full rights as a person. As a result, the individual liberty of the mother to make medical and moral decisions for oneself is primary. I would argue that in the presence of moral doubt, the proper course is to allow a choice – by what right does the government make a medical decision for an individual with no clear, objective harm at stake? I see that as a dangerous precedent.
I will say Camilla Paglia is right that many Liberals have shied somewhat from the reality of the “choice” that is vital to the Pro-Choice movement. But at the same time, the Pro-Life movement is dead set on painting the rational, serious, and ethical people of the opposition as insulting caricatures incapable of morality, in order to avoid examining their own beliefs. I don’t think anyone is really being honest in the wider debate.
The need for an objective, falsifiable definition of personhood is critical to avoid the pitfalls I’ve stated, as well as your own – and in the absence of such, individual choice and liberty must be preserved. The slippery slope to “death selection” and “involuntary euthenasia” is a non-sequitur because legal abortion is the complete absence of state intervention; it is not a positive choice by the government to end pregnancy, but the freedom of the individual to decide the best course of action. Indeed, without objectivity, your slippery slope is in fact more likely, since it empowers government to impose its own morality on the populace without the burden of having to provide hard evidence for its case.
Pingback: Best of 2012 | think hard, think well