Three Friends and a Discussion Regarding Abortion

]Written in response to a Jewish-Christian friend's response to A Peek into Fetal Memory: Learning in Utero by Prison Fellowship president Mark Earley

Introduction to a Discussion Regarding Abortion

A couple of things...

I did a little fact-checking on A Peek into Fetal Memory: Learning in Utero by Prison Fellowship president Mark Earley and found the following:

In the Womb: Twins, Triplets and Quads (TV capture)

Discovery Of Fetal Short-Term Memory In 30-Week-Old Fetuses

My computer (and dial-up connection) doesn't give me the umph! to download media but, based on the description given, I see no reason to doubt the interpretation given in the quoted note.

So I'm prepared to accept the following facts: that multiple birth siblings respond to each other in the womb at some indeterminate time before birth (if I could download the video, I no doubt would know that time) and that short term memory has been shown to exist at about 30 weeks (a little under 7 months).

Second, I'm inclined to accept that a sperm cell in a man and an egg in a woman constitutes a potential human being. A baby constitutes an actual human being. There is a long process between the one and the other and, while science can give us certain facts, the decision itself as to when a fetus becomes a baby is not one that can be made by scientists (at least, not while remaining in their role as scientists).

It is a spiritual decision and moral decision, on the one hand and, within the context of a civil society, a political and legal decision on the other.

Spiritual and Moral Considerations Regarding Abortion

The spiritual and moral aspects puts us in peril at the get-go.

One good friend of mine is a Christian heavily influenced by the Jewish tradition who sees God's revelation in the Torah and in the Talmudic interpretations of the Torah given by Rabbis, particularly those in biblical times and in the early centuries of the Common Era.

I am a liberal Christian in a Unitarian Universalist church who is convinced of the spiritual authority of the Hebrew Scriptures (the so-called Old Testament), the Christian Scriptures (the New Testament) and the broad, mainstream tradition of the Christian tradition (which I take as being the Roman Catholic, the Eastern Orthodox, the Anglican and the various mainstream Protestant denominations).

Another friend of mine (who does not know the first friend) is a committed atheist. He takes his moral compass from science and secular humanism.

Yet, we are all Americans and we are all joined by bonds of friendship and common nationality.

My Jewish-Christian (if I may call him that) friend seems to believe a potential person becomes an actual person sometime between conception and birth. And I would agree with that (though not on exactly the same grounds). And he also believes that a potential person, while not an actual person, is still something more than a tumor or a cyst – and I would agree with that as well.

My atheist friend would consider the potential person as becoming an actual person at viability outside the womb. I think that's unreasonably late – an entity that can experience pain, retain memories and (therefore) begin the development of a personality can certainly lay claim to actual personhood even if it hasn't undergone the “formality” of birth.

It is worth noting that the views of at least two of us (the Jewish-Christian and the Unitarian Universalist Christian (jeez, don't we have anyone non-heretical here? :-) are explicitly informed by “private” sources of “knowledge” (i.e. revelation). Arguably, my atheist friend's judgments in this matter are also informed by private sources of knowledge in that science can not make value judgments and it's hard to see how humanistic values can help in this case where the very question under consideration is when does a fertilized egg become a human.

It's also worth pointing out that the three of us are guys and that only one of us (the Jewish Christian) has actually helped birth and raise children – he knows the process better than we do, but he certainly doesn't know it like his wife knows it (especially the birth part)!

The Intersection of Private Spirituality / Morality and Politics / Law in America

As we move from the spiritual / moral issues to the political / legal issues I should point out a “quirk” in my own Unitarian Universalist Christian views.

Following the late William Stringfellow (a biblically conservative socially progressive Episcopalian) it seems incongruous if not arrogant to identify any human moral or political decisions with the will of God. It is one thing to pray to do the will of God and quite another to claim to know the will of God.

God may be infallible – we are not. And that fallibility, in my opinion, extends to those circumstances where we presume to speak of God's ultimate judgment regarding a person or decision.

I am reminded of the story of Abraham Lincoln, early in the Civil War when his goal was to reunite the country, not free the slaves. Two Quaker women approached him and said that God had revealed to them that God wanted slavery abolished. Lincoln gently replied that as he was President of the United States and as only he could actually free the slaves with a stroke of a pen (as he eventually did, at least nominally, in the Emancipation Proclamation) it was odd that God would have revealed this to them without revealing it to him.

Point taken.

A hundred plus years later civilized nations accept the principle that people should not be treated as property.

And it is quite possible that a hundred years from now civilized nations will have a shared view on abortion more pleasing to God than either “abortion on demand no matter the circumstances” or “no abortions ever, let the mother die.”

But so long as we remain embedded in history rather than living in God's New Jerusalem, all our ethical decisions are human decisions informed by our “private” beliefs and not divine decisions. So we all struggle along as best we can hopefully mindful that God (or, for my atheist friend, conscience and history) will ultimately judge our subjective, frail, human decisions.

This is the motivation, I believe, behind the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (See Text )

Speaking from a religious point of view, I believe this amendment specifies that the government cannot claim to speak in God's name and – more to the point – cannot side with any one group of people based on their claim to speak in God's name. It also allows people of various religious / secular beliefs to freely exercise those beliefs in the public marketplace and the political arena.

These two aspects have, at times collided with each other. (See Free Exercise Clause of the First Amendment )

Political and Legal Aspects of Abortion

Where does this leave my Jewish-Christian friend, my secular humanist friend and my own Unitarian Universalist Christian self? (And, for that matter, our strict Pro-Life brethren, but I'll allow them to make their own case :-)

If we are Americans and if we are committed to the First Amendment, I suppose we fall back on 'I disapprove of what you say, but I will defend to the death your right to say it.

That sounds nice in principle but are we prepared to accept it when the (alleged) killing of babies is involved?

The Constitution was developed such that laws that were passed (as well as the interpretation and enforcement of those laws) reflects the victors in a succession of conflicts between competing interests – with the provision that the Bill of Rights protects certain rights of the losers in such conflicts and that this Bill of Rights cannot be changed without an overwhelming change-of-heart in the United States (as happened with the abolition of slavery, when slave holders were denied their right to “property” in favor of the Black Americans' right to be treated as people, not as property).

So we come down to two decisions that (to the extent we take the Constitution seriously) we need to make as a society:

1. When does a potential person under the law become a person under the law. At conception? At the first trimester? At the second trimester. The third trimester? After birth?

2. Who is authorized to decide the fate of the potential person on the one hand, and the actual person on the other? The mother? The father? The government? The religious establishment? How do we adjudicate the claims between a mother and a father or between a mother and the third trimester fetus that may have no prospective viability outside of the womb. Or that has prospective viability but might kill the mother?

I'd love to be able to say that God has revealed to me what God thinks about all this, but I can't. All I can say is that I believe that a fetus is a potential though not an actual person until such time as its nervous system has sufficiently developed to have feelings and to retain those feelings in memory, beginning the process of having a personal identity and history.

Science can probably give us the best answer on when that occurs but I'm sure that answer will also be tentative as that probably differs from one fetus to another.

Almost certainly during this time I believe the mother should be the decision-maker regarding whether to bring the fetus to term or not.

As I believe a fetus, all the way back to a simple, fertilized egg, in its status as a potential person, is still something of great worth, a decision to terminate a pregnancy should be made with great care and all possible advice from the mother's partner, her family, her religious or other institutions from which she draws moral guidance, and her doctors.

But I still believe it should be her decision.

At such point as society determines that the potential person has become an actual person, then I believe the interests of that actual person (as difficult to determine as that might be) should be taken into account by the government along with the interests of the mother and her husband (and possibly also her partner, even if they aren't married).

That point at which society determines when the potential person has become an actual person will no doubt be arbitrary. That is how the law works.

For example, someone is considered an “adult” in Pennsylvania regarding the consumption of alcohol on their twenty-first birthday. Had I been in Pennsylvania and had an alcoholic drink at 11:59 PM on February 4^th, 1975 I would have been in violation of the law. If I had an alcoholic drink at 12:01 AM on February 5^th, 1975 I would not have been in violation of the law – which is interesting because although I wasn't actually born until 3:02 PM in the afternoon, the law defines my adulthood by my birth date not my birth time.

Again, how these decisions are made (regarding when a potential person becomes a person under the law, what responsibilities society holds towards potential persons, how the interests of a fetus defined as a legal person should be considered) are, in America, through the political process under the US Constitution.

And as Americans, we are constrained to accept those judgments if we can and to work to change those judgments under the lawful processes provided by the constitution if we can't.

The Bonhoeffer Situation

What if we believe we cannot ethically accept those judgments and we do not believe the lawful process of changing those processes suffice?

What if we feel compelled to define ourselves outside of the American constitution and resort to violence to enforce our beliefs on others?

Well, to begin with, I suppose it bears mention that at the point we act on those beliefs we become traitors to our country and, in essence, go to war against it.

That is not necessarily immoral. Dietrich Bonhoeffer was a traitor to Germany and the Nazi regime. Despite being a pacifist who initially used non-violent resistance to the regime he ultimately, through an accident of family history, became in the bomb plot. He was caught and executed days before his concentration camp was liberated by the allies.

Did Bonhoeffer do the right thing in ultimately embracing violence? I don't know. Only God knows.

Perhaps, at this time, it might make sense for the Catholics amongst us (if no others) to re-consider the Roman Catholic Just War Doctrine.

Just War Doctrine

The Just War Doctrine, as contained n paragraph 2309 of the Catechism of the Catholic Church states:

The strict conditions for legitimate defense by military force require rigorous consideration. The gravity of such a decision makes it subject to rigorous conditions of moral legitimacy. At one and the same time:

* the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;

* all other means of putting an end to it must have been shown to be impractical or ineffective;

* there must be serious prospects of success;

* the use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modern means of destruction weighs very heavily in evaluating this condition.

These are the traditional elements enumerated in what is called the "just war" doctrine. The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.

I'll give some brief Unitarian Universalist thoughts on this :-)

First, a decision to engage in violence must meet “rigorous conditions of moral legitimacy.” The decision to engage in violence against one's fellow citizens is no trivial decision for anyone who claims to respect authoritative teaching.

Second, the damage inflicted by the aggressor need to be “lasting, grave and certain”. The twist here is that as abortion is legal in the United States, the claim would have to be that the nation is the aggressor. That is, the aggressor is the United States of America and the Constitution which is the foundation of a legal system permitting abortion.

For argument's sake, let's say this holds. Certainly, if one accepts the decision (informed, again, by private knowledge or revelation not available to the non-Catholic rest of us) that an entity that should be recognized by society as a legal person comes into existence at the moment a woman's egg is fertilized by a man's sperm, then abortion would certainly constitute a holocaust. How could one not believe that the legalized, unmitigated slaughter of infants would not cause damage to a nation that would be “lasting, grave and certain.”

I would only ask that my Catholic friends remember that we're not all Catholic and many of us (including many of us who are Catholic) really do not find it obvious or self-evident that this is the case.

Third, violence must be the last resort.

Can anyone seriously believe this is the case in America? There are all the freedoms enumerated in the First Amendment – to speak, to print, to assemble and organize, etc. We have a representative government. Votes and political financial contributions (for better or worse :-) effect elections and elections affect policy and policy affects laws.

Fourth, there are serious prospects for success.

I suppose that is arguable. Dr. Tiller's murder closed a clinic.

But that's winning a battle, not a war.

Those organizations committed to ending or limiting abortion seem to believe such violence ultimately immoral and counter-productive to the Pro-Life cause. (See All Statements from Pro Life Groups Condemning Tiller Murder).

I suppose one could take the conspiratorial approach and say that such statements are merely political in nature and that secretly these organizations believe that violence is the way to go.

But is that reasonable? Especially considering the Just War Doctrine's insistence that a decision to engage in violence meet “rigorous conditions of moral legitimacy.”

Can one seriously defend the idea that all of these pro-life organizations secretly believe that violence against abortion providers and the federal and state laws that allow their work will bring victory?

I doubt it.

Fifth, the use of arms must not produce evils and disorders graver than the evil to be eliminated.

Again, can an argument be made that such “evils and disorders” will not result?

Tough question. If extra-legal violence ends a holocaust at the expense of ending America's constitutional “experiment” in representative government, could that not reasonably cause “evils and disorders graver than the evil to be eliminated”?

I'll let my pro-life Catholic friends tackle that one :-)

Lastly, let's consider that “The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.”

Who, in America, has “the responsibility for the common good”?

Well, if one takes the Constitution seriously, we all do – collectively.

If one believes that the government that currently exists is representative of the people of America and legitimate, then what that government does reflects our corporate decision as to what constitutes the common good – even if we may disagree with this individual decision or that individual institution (as we all most certainly do).

Tentative Conclusion

I personally believe that a fetus is a potential person but not an actual person. As a potential person it is not something that should be treated as a tumor or a wart, but it is not entitled to full legal protection as a person either.

I believe it is a good thing for society to counsel sexual abstinence until such time as a person (hopefully a couple!) have the ability to assume the responsibility of an infant and, for those for whom the spirit is willing (or not, as the case may be) but the flesh weak, contraception.

At some point in the womb I believe that potential person becomes an actual person and should be recognized as such by law and should be considered a stakeholder in a decision to abort. That, to me, does not imply that no abortions would be performed after that time as, doing a bit of research after Dr. Tiller's murder, I am convinced that there are some really difficult situations women and their families encounter that may, indeed, justify abortion of a third trimester infant – just as we justify the execution of a murderer, the death of innocents (including innocent children) in a war or the withholding of a donor organ to one dying person to give it to another dying person with a better chance of recovery.

This legal decision-making will no doubt be messy and arbitrary but no less arbitrary than saying it's an actual person at the moment of conception or it's not an actual person until it is viable outside of the womb. (I'm 55 and I'm not fully convinced I'm viable outside of the womb. :-)

And, in the final analysis, whether or not society addresses each and every one of these issues the way I believe they should be addressed, I believe that the American constitutional system is largely (if not completely) representative and legitimate and that force is not justified (at least, to those who grant credence to centuries of Christian Just War thinking) to change the system when there are so many legal or illegal but non-violent options for those who seek a change.

Bill Bekkenhuis
Bethlehem, PA

Notes...

08/31/09 - Regarding John Dunkle's belief that there is no distinction between a potential person and an actual person, see the (pro-life) article at Cloning, Aquinas, and the Embryonic Person.

It includes this quote: The Catholic defenders of this "delayed hominization" of the embryo correctly say that St. Thomas Aquinas held (a) that there is no human person until ensoulment with a spiritual intellectual soul; and (b) there can be no ensoulment until there is a body proportionate to such a soul.

While the article says Aquinas' position is being misused in the debate regarding abortion / stem cell research, it does maintain that it was his position. If Aquinas can distinguish between a potential person and an actual one, so can I.