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?"