Tuesday, July 31, 2018

Abortion and Religion

by Sherry F. Colb

Have you ever seen an anti-abortion sign or ad or video? Did it contain a picture of an embryo or fetus? If it did, was the fetus relatively far along its path to forty weeks gestation? I am betting that it was. In my latest Verdict column, I discuss the question whether opposition to abortion can be feminist. In the course of that discussion, I talk about a video in which a doctor who says he has performed over twelve hundred abortions shows the viewer what a D&E (Dilation and Evacuation) looks like.

At the end of the video, the doctor surprises us by announcing that he has stopped killing babies for money. I was not surprised by this announcement, however, because he used various words and expressions that demonstrated, perhaps inadvertently, that he is part of the pro-life movement.  He called the person who performs the abortion an "abortionist" (which is a little like calling a banker who happens to be Jewish a "Shylock"), and he repeatedly referred to the fetus as a "baby." One would have to be unfamiliar with the abortion debate in America to think that this doctor was on the pro-choice side of it.

Still, his reference to the fetus image as a baby felt fair enough. Like a baby, the fetus had a head, arms, legs, a brain, and a spinal cord. I would argue that it is not a baby until it is also sentient--capable of experiencing sensations or emotions such that it has a subjective state of wellbeing. But if we are judging by what it looks like, we would probably assume based on appearance that it already does have subjective experiences. After all, it looks a lot like a baby.

Why does any of this matter? It matters because part of the pro-life case for prohibiting abortion rests on the status of the zygote, embryo, and fetus as babies rather than potential babies. Pro-lifers believe that abortion is murder because at all stages after conception, abortion ends the life of a baby. To make their case, though, they have to argue not only that abortion kills a baby but that the fact that the putative baby lives inside (and takes a great deal from) a woman does not matter. On this approach, forcing a woman to endure the physiological hardships of pregnancy and labor is just the same as forcing a consumer to refrain from shooting a customer service representative.

Most of the time, pro-life advocates focus their attention on making the case for the personhood of the zygote, embryo, and fetus rather than on explaining why it is okay to force a woman to be a living respirator against her will. To make their personhood argument, pro-life advocates talk a lot about late abortions like the one that the pro-life doctor in the video mentioned above describes and demonstrates. In fact, some pro-life advocates talk about abortions a day before the baby is to be born.

I have listened to a few episodes of the Ben Shapiro podcast, and I learned that he considers himself a conservative libertarian who is pro-life. Though some will fault the libertarian for being pro-life, I understand how one might support individual freedoms until they involve hurting someone else. Many years ago, I had a student in law school who was a libertarian but nonetheless believed that people should not be allowed to hurt animals (including farmed animals, e.g., by slaughtering them). That is a reasonable and consistent position to hold. (And this former student was among the people who inspired me to become vegan).

Getting back to the Ben Shapiro show, in talking about abortion and the left's supposed view of the issue, Shapiro said that his wife had had a baby and that some people on the left believe that she should have been allowed to kill that baby a few days before he was born. I want to be on the record as opposing an abortion that happens a few days before the baby is to be born (barring extreme circumstances). In some places, Shapiro suggested, women can have an abortion at this late stage.

Some states may permit abortion at any stage prior to birth, but that does not mean that (a) any doctor would be willing to actually perform an abortion after nine months or (b) that any woman would want to have an abortion at this late stage, It would seem that the only reason to say that some states allow abortion at nine months is to suggest that the left is completely off the map and evil. Is it not obvious that a fetus/baby at forty weeks minus a few days gestation is morally identical to the baby who has just emerged from his mother's womb? Yes, it is obvious. I have never heard anyone on the left, except perhaps in jest, propose otherwise. (E.g. when does Jewish life begin? At graduation from Harvard).

If I agree that a fetus just short of birth is a baby, will the pro-life community concede that a zygote and an embryo are not? I doubt that. People on the right talk about late-term procedures because they are the ones that involve what look very much like babies. And people have an empathy reaction to what looks like a baby. People do not have much of an empathy reaction to a zygote--a cell--or to an embryo that has little of its neural equipment, so pro-life advocates would gain little from showing a photograph of a cell. If their view is that a cell is no different from a nine-month fetus, they show us the late fetus and then describe the cell as simply a smaller "baby," a classic bait and switch. To use a phrase I learned from a pro-life friend, pro-life advocates exploit "concept slippage," sliming the early abortions that comprise most procedures in this country with the negative associations tied to the less common late procedures that we tend to see pictured.

I discuss this bait and switch, along with the question of whether "pro-life feminist" is an oxymoron, in my column. I explore the degree to which religious faith informs the pro-life view of a zygote as a child. But I bring it up here to highlight the fundamental dishonesty of maintaining, on the one hand, that developmental stage is irrelevant to the evil of abortion, while emphasizing, on the other, the apparent violence of second-trimester abortion.

Before much more time passes, the pro-life view of this issue will probably govern our law, perhaps even federal law that binds everyone in the country. When that happens, I predict that we will hear less about second-trimester abortions than we have in the past, and we will confront more plainly arbitrary restrictions on the early terminations that women prefer to late-term ones and that non-pro-life but ambivalent Americans find less disturbing as well.

I think we saw some of this from soon-to-be-Justice Brett Kavanaugh, who dissented from an opinion allowing an immigrant minor in custody to leave custody to have an abortion. Judge Kavanaugh would have put off the abortion, thus making a later-term procedure more likely. To someone who thinks a cell is an infant, of course, early and late abortions are the same, and the main thing is try to stop them from happening. But Sacha Baron Cohen may be the only person I could imagine holding up a sign with a picture of what pro-life advocates are really willing to protect: the picture would feature a zygote, and Cohen would yell, in a characteristically difficult-to-nail-down-but-nonetheless-amusing accent, "Don't kill your baby. See how cute he is?"


Joe said...

I noted elsewhere that there was a recent NYT wedding article (a usual Sunday thing) about two conservative vegans who got married. There are various outliers and some people aren't totally consistent anyhow. "Libertarian" is often a term that applies to people willing to upset what to me seems to be non-libertarian results since net they think such and such advances the cause. Also, some seem to care more about certain things. See, e.g., Randy Barnett (shocker) supporting Kavanaugh, quoting someone else who might call himself a "libertarian."

I think that questions of abortion have a special religious aspect, including certain people having a religious (or related conscientious) reason to have an abortion (yes; people are motivated by religion to do non-conservative things).

The author surely knows this, but just to flag it, I saw reference to how a very strict anti-abortion can in various cases clash with what a Jewish faith approach deems appropriate. This was flagged to a conservative anti-choice religious figure on Twitter & he simply refused to face up to the fact. Birth control also can be used in part for religious reasons, including to avoid something deemed immoral or not part of God's plan.

"Religious liberty" is not just about denying employees birth control or Medicaid rules that selectively take into considerations of the moral beliefs of some. Planned Parenthood v. Casey spoke about how abortion is a matter of "conscience." This is a basic truth and along with other reasons [since religious faith alone cannot justify all acts] why it should be an individual matter.

David Ricardo said...

The anti-abortion rights groups have to be evaluated in their total positions, not just their opposition to abortion, because it is not just their opposition to abortion that drives them. Their agenda is for government control of women's bodies. They want to regulate sexual conduct, they want to ban birth control and they want to sit as the moral judges as far as women's behavior is concerned.

They cannot convince the public body on the merits of their arguments and so resort to government control. They are the direct opposite of feminism and to suggest otherwise is to not understand them or the problem they are to a decent, moral and compassionate society.

Shag from Brookline said...

I would add to David's:

"They want to regulate sexual conduct, they want to ban birth control and they want to sit as the moral judges as far as women's behavior is concerned. "

" ... as well as men's behavior is concerned."

Many - perhaps most - men act in concert with women, relying upon birth control.

Patrick S. O'Donnell said...

"Abortion and (most forms of) Christianity" would make for a more accurate title, if only because not all religious worldviews subscribe to the same beliefs (even if, generally, there is opposition to abortion) on this topic; at the very least, they do not express their opposition in identical terms or for the exactly the same reasons (Buddhists are, in principle, opposed to harming or killing any living being, but they make exceptions, which of course complicates matters; it seems, moreover, that they are more consistently or coherently 'pro-life' that those in this country who identify with that slogan). Buddhists do not find sufficient reason to discriminate between early and late abortions but have found reasons when abortions would be permissible. And they do believe that killing of a human animal after conception is worse than killing a nonhuman animal. It seems important to examine the precise beliefs on the cluster of questions that arise with abortion within the various religious worldviews (and thus not just the 'Abrahamic' traditions). I suspect Buddhists, in this country at least, would, in spite of the doctrinal opposition to abortion, allow the woman to make a choice in such matters, although that in no way diminishes the moral or spiritual nature of the act of killing and its consequences, it simply does not give pride of place to the law of the State.

Joe said...

Sacred Choices: The Right to Contraception and Abortion in Ten World Religions by Daniel C. Maguire was a good analysis for the general reader.

Shag from Brookline said...

Varieties of religions may circle the wagons against what may be offensive to some of them just as varieties of originalism circle the wagons against criticism of any form of originalism by non-originalists. It's a matter of faith in both instances.

Shag from Brookline said...

Okay, Patrick, how about faith in originalism, which started as a movement when you were in high school (although not in high school)?

Patrick S. O'Donnell said...

That's a topic too big to tackle here. I'm not a fan of originalism, however fond I am of Larry Solum, and there can be rather different and not always consistent reasons for believing in its value, suffice to say I am not happy with any theory of constitutional interpretation that renders the constitution on the order of a sacred text (I think the theory is fundamentally misguided, owing to its rigid 'backward looking' character ... and its pernicious effects on democratic praxis, some of which go back to the document itself and the institutional system it established). That will have to suffice, although I should note that I have nothing original or profound to add to the ongoing debate.

Michael C. Dorf said...

This was an earlier comment from Patrick O'Donnell, which I deleted in the hope of fixing a formatting issue that crashed the feed.

Shag, As a student of religions around the globe since I was in high school in the 1970s, I can assure you that in this and many other kindred instances it is not simply (i.e., cannot be reduced to) a “matter of faith.” Religions are rather complex, and faith is not everywhere and always paramount, as there are ritual, doctrinal or cognitive, ethical, existential and spiritual, artistic or aesthetic dimensions, for example (i.e., this list is not exhaustive), that are often intertwined in inextricable (some would prefer ‘confusing’) ways. Indeed, the focus one often finds on faith when questions of religion are at play, is rather the result of the influence of Christianity in our society, especially its Protestant part, on the people who speak this way, whether or not they themselves are Christians. I’m tempted to expound on this at length (as Joe can attest), but that would try even the patience of Job, so I won’t.

To characterize matters here as merely taking “offense” or finding something “offensive,” does not do justice to the deeply held or cherished moral and ethical (and, to some extent, metaphysical) properties and beliefs that arise with the subject of abortion (and that can hold equally for someone who is an avowed atheist or agnostic; incidentally, Wittgenstein wrote a bit about religious worldviews in a manner that was unusually sensitive and nuanced, given that he was not a ‘believer’).

And there is a more or less secular equivalent of “faith” among those who subscribe to nonreligious worldviews insofar as reasons and justifications run out at some point, at least for people who claim to eschew faith for values or beliefs of one kind or another they believe are, or can be, accounted for by reason. As Nicholas Rescher correctly explains, “philosophy cannot provide a rational explanation for everything, rationalizing all of its claims ‘all the way down.’ Sooner or later the process of rationalization and explanation must - to all appearances - come to a halt in the acceptance of unexplained explainers” (the reliance on unavoidable presuppositions or assumptions). Insofar as this is the case, even the most committed form of the demonstrative/argumentative mode of philosophizing will be compelled at some point (explicitly or not), to rely on “inexplicable facts” or “unexplained explainers” that make space for the evaluative and evocative mode of philosophizing that shares at least some functional characteristics with what elsewhere is christened “faith.” Even for that sort of Christian whose religiosity is seen as pivoting around faith, it may in fact be the case, as Kierkegaard thought, that faith “has in every moment the infinite dialectic of uncertainty present in it,” hence even this sort of Christianity is likely to be shadowed by moments of doubt (we’re fallible creatures, after all, only absolute knowledge can bring absolute certainty, and that belongs, for the Christian, to God alone).