Questions swirl around legal, ethical guidance on abortion
Dozens of European countries limit elective abortion to 15 weeks. Several of them set that period at 14 weeks. A majority limit elective abortion to 12 weeks, including Denmark, Germany, Norway and France.
These countries generally allow for abortions at later stages if the physical or mental health of the mother is threatened, or in the case of serious fetal defect. But almost all these laws are more restrictive, on paper, than the regimen set out in Roe v. Wade.
Little of this can be attributed to activist religious groups “imposing” a moral vision. These are some of the most secular countries in the world. European abortion law engages in legal and ethical balancing because there are contending liberal values that require balancing — a public responsibility to value human dignity and a public duty to respect the autonomy of those who become pregnant.
This remains the issue that will not go away because it not only divides advocacy groups; it divides individual minds. Few people have an immediate sense of moral identification with a blastocyst. But it’s difficult to deny that a fetus at 21 weeks is one of our own kind — not a potential human, but a human at an early stage of development.
The problem comes in the drawing of legal and moral lines, because such distinctions seem so disturbingly arbitrary. One traditional Christian instance of line-drawing, for example, was at quickening — when a mother could feel a child inside her. But this seems absurd when generalized as a moral principle. Do humans really attain rights only when they can alert us to their existence? How does a perception in some other mind magically generate worth in a fetus?
Others have proposed the presence of fetal brain activity to be determinative. Yet the human distinctive is not found in the random firing of neurons; it is found in self-conscious rationality, and this does not develop until well after birth.
For many, viability seems an easy stopping point. And it might eventually be a useful landing place for political compromise. But this seems to be particularly weak and dangerous as an ethical principle. Do we really want to argue that dependent human beings are proportionately less valuable? Should this also apply to human beings with profound intellectual or physical disabilities?
On abortion, there is often a massive gap between the stakes of the debate and the confidence of our moral intuitions. For some, the arbitrariness of lines leads them to elevate autonomy over all other claims. Because pregnant people face a unique burden, they should have the sole decision. But establishing the moment of birth as morally dispositive has problems of its own.
In the U.S. debate, religion does play a broader role in abortion controversy. And it can come out in cruel and judgmental ways. Some people are probirth rather than pro-life. But it is neither just nor democratic to declare that all opinions informed by religion are fundamentally personal and thus democratically illegitimate. It rigs the debate to argue that John Stuart Mill’s philosophy can be the basis for convictions about human worth, but not centuries of Jewish and Christian philosophic reflection on the demands of human dignity.
The history of Roe v. Wade demonstrates the unsustainability of a few people on a single court declaring that one side can never prevail. The same would have been true if the Supreme Court had decided in 1973 that the 14th Amendment applied to everyone after conception. Such a verdict would also not have been imposable on a culturally diverse, deeply divided nation.
The explicit or effective ending of Roe comes at a low point in America’s political capacity for deliberation. But there is no more fundamental task of a political community than to define the human community. And what sounds impossible will soon be unavoidable.