Abortion: Personal Reflections and a Challenge



Richard John Geib

April 30, 2008

Abortion: A Challenge to Learn, Think, and Decide

Introduction

My son, Richard, has asked me to share with you some personal thoughts on the highly-charged subject of abortion. As always, he has exaggerated my abilities to analyze, explain, and inspire.

The subject of abortion is truly daunting; it is a morass of science, law, ethics, philosophy, politics, statistics, and religion! You should know at the outset that I am the father of three children, a Roman Catholic, and an attorney.

To survive Richard’s exorbitant assignment, I have narrowed the focus considerably and will limit my comments to the following: 1) a personal challenge to each of you to put aside all preconceptions and become truly informed about this complex, emotional subject, recognizing that its importance rivals that of nuclear weapons, world hunger, and global warming (and far exceeds the issue of capital punishment, a subject commonly book-ended with abortion by both the pro-life and pro-choice advocacy groups to assault one another); and 2) the appropriate roles of the legislative and judicial branches in shaping and resolving the abortion debate in America.

Learning

Gather and sift through all the facts so that you can make a reasoned decision about the following question: Should abortion in the United States be legal on demand, permissible with restrictions, or banned in all instances? Read the benchmark Supreme Court decisions: Roe v. Wade (1973), together with the companion case of Doe v. Bolton (1973), and Planned Parenthood v. Casey (1992). Look at the principal California statutes governing abortion: Cal. Penal Code Sec. 187(b) and Cal. Health and Safety Code Sec. 123460 et. seq. Find the most objective sources available and track the history and development of both the moral and civil law governing abortion.

Your job has just begun. Be familiar with the laws of other nations: know that Canada permits abortion at any time during pregnancy for any reason, that Nicaragua bans abortion for any reason at any time, and that China mandates abortion in many instances where a husband and wife already have one child. Compare these approaches to the patchwork laws of the United States where court decisions since Roe v. Wade permit individual states to restrict abortion in the second and third trimesters with such requirements as parental notification, mandatory counseling, and mandatory waiting periods. Finally, read the recent case of Gonzales v. Carhart (2007) in which the Supreme Court for the first time chipped away directly at Roe v. Wade by restricting the type of permissible abortion procedure—by banning partial-birth abortion.

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Thinking

I am now going to provoke you by being confrontational. I urge you to really think about abortion. Since I doubt if many of you have rigorously analyzed the facts, data, and beliefs relating to abortion, I ask you to do this without delay. Please refuse to lapse into boredom or indifference--the subject is simply too important; keep an open mind; if you have already made up your mind in the absence of careful study, “unmake” it; listen cautiously to the message of groups with an agenda such as Planned Parenthood, religious organizations and institutions, the National Organization of Women, National Right to Life, the ACLU, NARAL Pro-Choice America, and Pro-Life Action League; learn what medical doctors, especially obstetricians, say about abortion; review the statistics from an objective source which show the percentage of hospitals that permit the procedure, the percentage of licensed doctors who perform the procedure, the percentage of licensed obstetricians who perform the procedure, the percentage of counties in the U.S. where abortion is available, etc. The numbers might surprise you. Try to attend the two thoughtful movies from 2007 in which the abortion issue was addressed with sensitivity and insight: Juno and Bella. Discover from psychological studies what women who have had an abortion think and feel after they have had an abortion. Finally, please consider discussing the subject with your parents or loved ones.

So far I have been challenging you to invest the effort necessary to learn and think about abortion and, in doing so, to keep an open mind and to seek out the most objective sources available. Finding objective sources will be especially difficult since the written and oral landscape of the subject is replete with bias, distortion, deception, arrogance, and anger. Additionally, since Roe v. Wade, there has been an immense volume of material written about abortion by both pro-life and pro-choice advocates; it is difficult to know where to begin.

Obstacles to thinking clearly about abortion-- perhaps the most divisive issue that has faced America since slavery—abound. Activists on both sides of the debate use language in clever, misleading, and provocative ways. The very words “pro-life” and “pro-choice” appeal to values we all believe to be basic civil rights, but they gloss over such controversies as when human life commences and when and if that life trumps the choice of the mother; moreover, these words suggest by implication that opponents are anti-life or anti-choice. To accuse abortion advocates of “murder” is deceptive and provocative since this word choice assumes away extenuating or justifying circumstances that often are involved in a decision to abort. And to speak of “a woman’s right to her own body” is to assume away the presence of a conflicting value—the presence of the life or potential life which exists within the womb as the result, in most cases, of a woman’s voluntary act. Euphemisms distort rather than clarify.

Now I invite you to consider the most important point in this presentation: that any discussion of abortion must be nuanced rather than absolute. This is because there are gradations of time and motive which alter the judgment that a society can make about the morality or legality of an abortion. The time gradation has to do with the point at which the abortion is performed during the nine-month period of pregnancy. The earlier the abortion, the easier it is to justify-- unless one

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believes that life begins at conception; conversely, an abortion during the third trimester would be justified, for most, only if the health of the unborn child or the mother is threatened. Note when you read Roe v. Wade that Justice Blackman discusses time gradations in holding that states may constitutionally restrict or prohibit abortion depending on the trimester in question.

Understanding the nuances of motive is critical to a reasoned discussion of abortion. Imagine a spectrum at one end of which is a woman who has been the victim of rape or incest and at the other end of which is a healthy, financially stable woman who happens to be very self-centered. The quality of the motivation to abort in the two instances will be quite different. I will subsequently describe the distinction between moral and civil law, but you need to understand now that motive is always important is making a moral judgment; it is only occasionally important in making a legal judgment

If you have been following me at all, the next time you are asked for your opinion on abortion, you will ask your interrogator to be more precise: you will inquire how far the pregnancy has progressed and how sound the pregnant woman appears to be physically, psychologically, and financially. Abortion is a nuanced subject, and it will not do to be dogmatic without considering the particular facts and circumstances of any given pregnancy.

A Key Distinction

I want to pause in my discussion for a moment to talk about civics with you. In America today, there are a number of social issues similar to abortion in which the moral component arouses passions: gay marriage, euthanasia, and stem cell research among others. Since we as citizens may be called on to resolve such issues legislatively through our elected representatives or by voter initiatives, we all need to be aware of the important distinction between moral and civil law. I also want quickly to explain why consensus in a democracy is a necessary pre-condition to effective legislation.

The late John Courtney Murray, a respected and widely read theologian, made the distinction between moral and civil law as follows: “The moral law governs the entire order of human conduct, personal and social; it extends even to motivations and interior acts. The civil law looks only to the public order of human society; it touches only external acts, and regards only values that are formally social. To have made the moral argument against abortion is not necessarily to have made the legal argument.”

Murray goes on to discuss consensus: “Good law must be enforceable. But in cannot be enforceable without a consensus in society to support its enforcement. Those who wish to translate moral law into civil law in a pluralistic society need to build the necessary consensus.”

Deciding

Each of you might one day be helping to decide whether and under what circumstances abortion will be permissible in America. I urge each of you to make up your own mind, after thoughtfully considering all of the facts and arguments. Perhaps you should listen to your hearts as well.

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As noted above, we citizens can enact effective abortion legislation only when consensus exists. Statistics show that this consensus simply does not exist in America today. I urge you to look at the material in Wikipedia under the heading “Abortion in the United States” for an excellent sampling of current statistics regarding the abortion controversy; this material, which meets my standards for objectivity and nuance and which polls public opinion by gender, region, and political party, confirms a profound division of opinion. Perhaps the CBS News poll of January, 2006 is representative: 31% of the respondents believed that abortion should be legal on demand; 30% believed it should be permissible only in cases such as rape, incest, or to save the mother’s life; 16% believed that it should be permissible but subject to greater restrictions than it is now; 12% believed that it should be permitted only to save the woman’s life; and 5% believed that it should not be permitted under any circumstances.

A Personal Opinion

In closing, please allow me a personal opinion about one particular aspect of the abortion controversy. (There are many who would disagree.) I believe that the courts should not be the final arbiter of issues such as abortion and gay marriage since the Constitution does not give any authentic guidance on these modern-day social phenomena. I believe that the Founding Fathers never considered these issues and would have been surprised to learn that they are “implicit” in the 14th Amendment’s guaranty of life and liberty. I believe that we the people should resolve these issues through our elected representatives or through the initiative process.

In addressing the issue of gay marriage, courts, except in Massachusetts, have deferred to the legislature or the people and have refused to say that gay marriage is protected under the 14th Amendment or any similar state constitutional provision. Unfortunately, the Supreme Court in Roe v. Wade engaged in what is known as “judicial activism” and took the issue of abortion out of the hands of the people. The Wade Court declared, with only flimsy precedent, that the right of liberty protected under the 14th Amendment included a so-called “right of privacy” and that government could restrict this private right to choose only when the fetus became “viable” --a development which the Court determined to occur at 24 weeks into the pregnancy. Many legal scholars were stunned by the bold assertion of a constitutional right of privacy. Although Justice Potter Stewart joined in the majority opinion in Roe, he readily acknowledged that the Court was legislating.

My opinion, then, is this: that Americans as a people need to continue the public debate over abortion so that in time we reach consensus. This consensus will then lead to laws which reflect the true will of the people. If the consensus is a pro-life consensus, a necessary pre-condition is the overturning of Roe v. Wade. The attempts of many pro-choice advocates to 1) eliminate public debate by asking the courts to make the final decision or 2) state that abortion is no one’s business except that of the pregnant woman and her doctor are misguided and undemocratic.

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