Part I: My first flip-flop
About a year ago, I wrote a post using science to justify a moderately pro-life stance. My argument was that the question of when life began was not a moral question, but a scientific one. After quoting Jefferson’s Declaration, I wrote that “if the rights of all created men are to be defended, it is necessary for the government to define when a man is created.” I argued that science, unlike partisanship or religion, was a neutral tiebreaker for making that determination. After consulting scientific definitions of life, I concluded that a fetus undeniably meets all of those definitions after the first trimester; therefore, I deduced that abortion should be legal before then, but illegal after that time.
Today, I see major flaws in that argument. I now recognize that it is impossible to reduce an issue with as many moral implications as abortion law to scientific study. Science can be used to help form our own individual beliefs if we so choose, but there is no evading the reality that abortion is an inherently moral issue. Science and morality do not operate on like terms, because words have different connotations in different contexts. The scientific definition of life is not the same as the political definition, just as the political definition of “force” is not the same as the scientific definition. As such, it doesn’t matter when life scientifically begins, because that definition was not the one referred to in our Declaration or constitution. Words used in a philosophical context are not bound by their scientific definitions. And unlike a science textbook, a philosophy certainly has no consensus about when life begins; that is a highly subjective, opinionated definition.
This week, I wrote an entry called “Governing Morality”, in which I argued that government should not be in the business of enforcing those opinions on everyone. Laws restricting abortion, like all law, requires the use or threat of force on other people. In the abstract, wielding that force is wrong. It can only be justified if there is almost universal consensus that the ends pursued by the governance justify the means employed by it. Everyone agrees that people have a right to life, but not everyone agrees on when life begins; murder is universally held as wrong, but abortion is not universally held to be murder. The morality of abortion is highly subjective. Therefore, to prevent a woman from having an abortion is to forcibly impose your hotly contested personal opinion about when life begins on one who disagrees with it. It is authoritarianism, and in principle, I believe it to be wrong.
In this way, my approach to the issue of abortion has flip-flopped. A year ago, I felt that science could serve as an objective arbiter on a moral issue, and used that cop out to justify the use of force on the many who have moral qualms with the scientific definition. Now, I feel that science is irrelevant to the discussion, and recognize that there is no universal, one-size-fits-all way of determining when life begins. My personal beliefs on abortion have not changed, but my tolerance of disagreeing beliefs has increased. The factors I considered in forming an opinion then are not the same as the factors I consider now.
Part II: Policy implications
But applying this change in approach to policy is tricky, because it does not negate the necessity of drawing a line somewhere. If a mother wishes to shoot her healthy child in the head the moment after it is born, we cannot tolerate that disagreement in opinion. There is a nearly universal consensus (excluding Peter Singer…) that infanticide is murder. Where that consensus begins is where tolerance becomes a larger sin than the force and coercion of law enforcement, and where the ends may justify the means. The trick is determining where that universal consensus begins. First term abortion is clearly a subjective and polarizing issue; post-birth infanticide is clearly not. The turning point between the two is anything but clear.
In searching for that point, two things become apparent to me. Firstly, just as science cannot tell us an objective answer to this question, neither can math. Listing a slew of pregnancy date cutoffs with their corresponding poll numbers (which naturally vary based on the wording of the poll) is not very helpful to forming policy. As I said in my earlier post, there is no magic number. Drawing this line is itself a subjective moral decision, varying based on how tolerant each of us is willing to be, and how heavily we weigh the forced oppression of others as a moral wrong.* All I can offer on such matters is my own humble opinion, by identifying which combination of tolerance and governance I personally am most comfortable with.
Secondly, it seems silly to choose any one date on such a dicey and inexact timeline as the absolute cutoff point. There exists no 60 second window after which abortion is a mortal sin, and before which it’s perfectly okay. This is why strict, arbitrary, across-the-board cutoffs at birth, inception, or various trimesters are so problematic. If you can’t kill your kid the hour after it’s born, is it really any better to kill it the hour before its born? If abortion is okay on the last day of the 13th week, is it really any worse on the first day of the 14th week? Most people don’t think so. It seems some sort of scaling mechanism might be in order. What about an initial deadline, followed small grace period charging a steep fine? Just as with air pollution and the carbon tax, imposing a cost on the undesirable activity forces economization. The added cost may cause those considering an abortion at the margin to reconsider, while the proceeds of the fines could go to fund reproductive health awareness programs. Or, if there are concerns about this restricting poor people disproportionately, perhaps substitute community service for the fine?
Admittedly, these solutions are messy, hastily constructed, and problematic. It’s impossible to make everybody happy, but compromises like this risk making nobody happy. The law lends itself to black and white, easily definable and easily enforceable distinctions, and to do it any other way is a major headache. But that doesn’t mean the convenient solution is the most just. A little creativity should be able to avoid establishing one hard and fast deadline.
If I really had to use dates, I would pencil in a line around the end of the second trimester. If I were charged with drafting legislation to my state’s Congress about where the specific line must be drawn, I would make the initial deadline the end of the 24th week, with certain exceptions being allowed up to an extended deadline of 26 weeks. My reasons for this are varied. I have limited scientific knowledge of how tiny little cell clusters turn into cute little babies. But do know my moral opposition to killing gets progressively stronger the closer the former becomes to the latter. And according to this chart, after the 24th week the fetus has a 50% chance of survival, with viability being very likely during the entire third trimester.
I also have limited statistical knowledge of how many abortions are desired after certain dates, and therefore of how many would need to be forcibly prevented by the state. But I do know that according to this Ezra Klein interview with an abortion doctor, less than 1% of all abortions occur after 13 weeks. And lastly, I have limited knowledge of the opinions of 300 million Americans. But I do know that according to this Gallup Poll taken in June 2011, 79% of even pro-choice respondents felt abortion in the third trimester should be illegal. That puts the overall percentage of Americans who oppose third trimester abortion at around 90%, a figure approaching the universal consensus I’d need to justify the oppression of the rest.
Part III: Response to defenders of third-term abortion legality
Even so, the number of people who support third-trimester abortion is far greater than the number of people who support murder. As such, some may say that by banning any abortion at all, I’m being inconsistent with my uber-tolerant libertarian philosophy. Some libertarians agree with them. Did I not just finish a blog entry denouncing moral imperialism? Yet in some important ways, I feel abortion is different from the other moral majority issues I’ve cited. Unlike most modern political debates, it is not a question of what rights people have; rather, it is a question of who those rights apply to. Unlike homosexuality, drug use or money management, third trimester abortion is not an issue of each person doing as they please with their own bodies and their own property. It is an issue of doing as one pleases with what may or may not be someone else’s body. Unlike those issues, it is not a victimless crime. Restricting liberty is never ideal, but it’s not always the greatest possible wrong.
Ardent pro-choice advocates argue that restricting even one of the choices available to women at any time is a greater moral offense than killing a fetus the day before it is born. I find their argument unconvincing. One strategy is to cite isolated worst-case-scenarios involving desperate teen mothers and helpless victims, and then to conflate the exception with the rule. The classic example is when the mother’s life is endangered by the pregnancy. Of course abortion should be legal in such situations, just as it’s legal to kill an adult who poses an immediate threat to your life. Most state laws banning third-trimester abortion have built in exceptions for this scenario. But in any other scenario, abortion is not a need; it is a want. Cases of rape or incest don’t change that. Yes, both are awful. Yes, I feel terrible for rape victims. But no, that does not make it okay to wait until the child is viable to abort. In either case, the victim should still know they are pregnant long before the fetus becomes a viable child.** All women have a right to choose. They just don’t have a right to take as long as they please on the decision, because doing so kills a living human being.
Some argue that late-term abortion restrictions disproportionately harm women at the extremes of the reproductive age who aren’t expecting pregnancy. Perhaps that’s true; as someone who will never be pregnant, I can never know exactly how long it might take to tell under those circumstances. But it's irrelevant, because it has nothing to do with the rights of the child, and when those rights originate. Some argue that any abortion restriction disproportionately restricts poor women who don’t have access to medical resources or education. That may also be true, but it is also irrelevant. The education level of the agent has no effect on the morality of the agent’s decisions, and legally ignorance is no excuse for any other crime. It is not ideal that poor women know less about their options and may take longer to know what to do or where to go, and it's not ideal that old or very young women aren't expecting pregnancy have a truncated decision making window. It is less ideal that living human children be killed due to that delay. Lastly, some argue that certain mental and physical handicaps in the fetus may not become apparent until the third trimester. That is certainly true. So be it. There is nothing oppressive about being unable to kill your child simply because you found out its retarded. Who among us would walk up to a handicapped person and tell them to their face that they have less value than other people? Mental or physical handicaps do not decrease the rights of adults; why should they decrease the rights of the unborn? The vast majority of people rightfully reject these justifications.
When life begins is a highly subjective moral issue with wide-ranging opinions. I do not believe government should force such opinions on others when it can be avoided. But unfortunately, if government is to defend the right to life for anyone, it must define when life begins for everyone. While no consensus can be built about when life begins, almost everyone can agree that life has begun by the start of the third trimester when the fetus is most likely viable. To about 90% of Americans, the ends of saving that viable child’s life during the third trimester justify the means of forcibly preventing a medical transaction between doctor and patient. That's high enough for me to satisfy the universal morality principle. The start of the third trimester is as early a line as I can draw while still respecting the individual's right to choose; it's as late a line as I can draw while still respecting the individual right to life.