This article first appeared in the Christian Research Journal, volume 45, number 1 (2022).
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[Please see editors note at the bottom in regards to the timeline of this article.]
On December 1, 2021, abortion reentered the Supreme Court with Dobbs v. Jackson Women’s Health Organization (Dobbs), where the state of Mississippi challenged the landmark cases Roe v. Wade (Roe) and Planned Parenthood v. Casey (Casey). Building up to this date, proponents on both sides ramped up efforts to make a case and win the hearts and minds of the ideologically-divided American people. Two New York Times opinion pieces joined this fight, offering critical evaluations of the current climate surrounding abortion laws. Both suggest that America ought to grow more comfortable with abortions performed early in pregnancy, which would effectively mitigate the extreme pro-life position that seeks to restrict access to abortion altogether.
Feminist author Jessica Valenti argues that a major rhetorical point of the pro-life position centers on claims that abortion is the violent and gruesome dismemberment of well-developed human life.1 This view, according to Valenti, takes a major hit from the increasing advancement of medical abortion as an option for women. The loosening of telemedicine restrictions due to COVID-19 makes the pro-life claims of the gruesomeness of abortion anachronistic, as women ordering medication online and ending their pregnancies by taking pills in the privacy of their own home rebuffs efforts to characterize abortion as brutal.
The second New York Times opinion piece is the more measured of the two. Leah Libresco Sargeant advocates for abandoning viability as the standard for when abortion is permissible,2 the standard recently defended by U. S. Solicitor General Elizabeth Prelogar in oral arguments for Dobbs.3 Viability is understood as the moment the child can survive independently from the mother. Sargeant believes that the viability standard is on a collision course with the advancement of medical science and neonatal care. As our capacity to treat premature babies increases, the mother and unborn child are pitted against each other in a manner that diminishes the dignity of both. Sargeant’s idea of honoring women’s dignity grounds the need for continued access to early abortion and requires abortion advocates to find a clearer explanation as to the threshold of acceptable abortion. This will lead to standards more in line with other nations that allow early abortions but strike a better balance between the dignity of the mother and that of the fetus.
Both articles suggest that the increasing ability to perform safe abortions earlier in pregnancy through medical means and without invasive procedures undermines the need for moral concerns from the public. Safe abortions are better than dangerous abortions. Early abortions are better than late-term abortions. However, even as more charitably articulated by Sargeant, this argument misses the point. Eliminating additional wrongs like the brutal dismemberment methods of late-term abortion cannot change the basic nature of the act of abortion.
Pro-choice legal philosopher Kate Greasley identifies a negative duty to every other full member of the human family — a duty to refrain from killing them.4 She argues that unborn human beings don’t fall into the category of human life to which we owe that negative duty. If, however, every human being is identical to the fetus or embryo we once were — if all human persons come into being at conception — then it makes sense to say each of us advanced through these developmental stages (e.g., I was once an embryo, I was once a fetus). If that is the case, then destroying any human life, no matter how immature, is a serious wrong and violation of that negative duty.
Sargeant concedes viability is a terrible standard, so a new meaningful standard must be identified. Chief Justice John Roberts pressed Solicitor General Prelogar on this point in oral arguments.5 What is a meaningful line of developmental demarcation if viability fails? The moment we come into existence. All subsequent events transpire in the life of a previously existing human being. It doesn’t matter how early we can destroy that life, or how capable we become at doing so in a minimally grisly manner, the key question remains the same. Is the life destroyed in abortion one of us? What is the unborn?
A HISTORY OF GETTING BETTER AT DOING WRONG
Valenti finds two points compelling: abortion is not dangerous to women, and abortion is increasingly a matter privately dealt with by women no longer requiring a gruesome procedure performed by a third party. It is true that over time abortion procedures tend to grow less dangerous to the women seeking abortion. It is also true that modern medical practice makes it possible to perform abortions earlier and earlier. However, neither of these points does the moral work Valenti appears to believe they do.
In his book Dispelling the Myths of Abortion History, legal scholar Joseph Dellapenna makes the case that abortion as it exists today is a novel phenomenon. Prior to the advent of modern medicine in the late 19th century, the entire realm of medical practice looked radically different. In a world with no antibiotics and limited knowledge of women’s reproductive systems, methods for ending an unwanted pregnancy represented a significant danger to both the mother and the child. The acceptance of the efficacy of folk medicine to reliably induce abortion was built on an unmerited confidence in the use of techniques like ingesting volatile oils.6 Any substance capable of killing an unwanted fetus is equally capable of killing the woman.7 The last 150 years saw an explosion of medical breakthroughs and advancement of biological knowledge, making the modern practice of abortion possible.
Threats to women’s health and gruesome dismemberment practices are evils commonly associated with abortion by its detractors. Dobbs was born out of the 2018 Gestational Age Act in Mississippi, which restricted abortion after the 15-week mark.8 Concerns for maternal health and the brutality of late-term abortion procedures are offered as justifications for legal restriction. From the act: “The majority of abortion procedures performed after fifteen (15) weeks’ gestation are dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb. The Legislature finds that the intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”
If issues of maternal health combined with the gruesomeness of abortion are legitimate reasons for Mississippi to restrict abortion, then Valenti is justified arguing that earlier access to medically induced abortions carries fewer risks to women and eliminates the need for doctors to perform acts of brutality against the fetus. In her view, telemedicine and medical abortions weaken the pro-life case.
As noted, even conceding that point, it doesn’t do as much work as Valenti asserts. Dangers to maternal health and the gruesomeness of abortion are additional evils to the central evil of abortion, the unjust killing of an innocent human life. Philosopher Christopher Kaczor argues that there can be additional wrongs to the act of killing another human being that compound the offense.9 Imagine two different unjust killings, each involving the termination of an innocent human life. In the first, a human being is tortured to death. In the second, a human being is killed through the painless introduction of poison while they sleep. The first scenario is worse because it includes the additional wrong of torture.
Growing more efficient at the act of early abortion as a means to reduce deaths of women and the gruesomeness of destroying nascent human life is not moral advancement. It is possible to identify additional evils and be grateful those evils diminish over time while being unwavering in our condemnation of abortion as intrinsically evil. Abortions that are dangerous to women and gruesomely violent are worse because they multiply wrongs. But eliminate all the additional wrongs surrounding abortion, and we are still left with the intrinsically evil act of abortion.
In the end, Valenti misunderstands the central pro-life argument. Those who oppose abortion do not do so because abortion is gross. Rather, pro-life advocates are convinced that the unborn human life is one of us.
VIABILITY AS A MOVING TARGET
Sargeant’s article raises interesting points in relation to Dobbs and the viability standard established in Casey. Her claim that viability is a terrible standard is correct for all the reasons she offers. Viability tells us almost nothing about the life in question and a great deal more about the medical abilities existing within communities. Medical advances moved the viability mark from the 28th week of gestation to the 24th week — toward the 21st week — and in the future ultimately toward an unimaginably early mark through the invention of artificial womb technology.
Sargeant acknowledges a dignity in the life of the unborn and decries the way the viability marker pits the needs of the mother in competition with the needs of the fetus. As Greasley explains, the problem in seeing equal dignity in both the mother and child is that no justification for abortion will remain open short of a threat to her life.10 Even acknowledging the obvious physical costs of pregnancy, they don’t rise to the proportion of the fetus having its life taken away. The woman’s discomfort doesn’t justify the unborn’s destruction. Any successful defense of abortion must define the unborn as less meaningful life. Abandoning viability as the relevant marker puts the onus back on abortion advocates to articulate a new marker.
Sargeant is correct when she says that 15 weeks is as arbitrary a line as viability, a point supported by legal scholar Sherif Girgis. He makes the case that abandoning viability is ultimately abandoning the Roe/Casey paradigm and creating an all-new legal relationship with abortion under Dobbs.11 Viability is no more legitimate than the 15-week point the State of Mississippi seeks to enact in the Gestational Age Act because all arbitrarily chosen developmental points will be equally unclear and open to legal challenge.
ASSUMING THE UNBORN ARE THE KIND OF THING WE CAN KILL
The assumption that dividing the human family between those we can kill and those we cannot is an illegitimate endeavor altogether. Both Valenti and Sargeant embrace some view whereby our mere humanity is not sufficient to guarantee equal basic human rights and trigger negative duties to withhold lethal action. They assume some function, some new developmental marker, or some acquired capacity must be present to recognize a life to whom all share equal duty not to harm. This view makes sense to many people who take developing human life as growing closer in likeness to us but not yet quite one of us. The reality, however, is that there is no point at which that life will become more human. It will grow as a human, not grow into being a human.
We can stipulate for this discussion that abortion is less gruesome and is increasingly accomplished medically with telemedicine access. We can concede most abortions, around 90 percent, are performed within the first 12 weeks of pregnancy. We can also acknowledge that the public generally believes early abortion is less problematic than later abortion. Does that mean we should accept compromises that protect early access to abortion and shore up the messy viability standard?
Again, this reasoning misses the point entirely. There is no way to improve abortion. The practice is altogether wrong. Unnecessary deaths should always be avoided, but the idea of a safe abortion exists only in the minds of those who fail to see nascent human life as one of us. Abortion is the intentional destruction of an immature human being. Even if abortions can be performed with 100 percent certainty that every woman will be safe and so early in development that little resemblance remains to the current dismemberment methods, abortion is still destructive by nature. Those additional evils represent things that are wrong about abortion, but they are not why abortion is wrong.
Abortion is wrong because it is the intentional killing of an innocent human life. It is the willful destruction of image bearers of God. It is a violation of one of the foundational commandments of all Judeo-Christian faiths. Abortion, whether early or sanitized, violates the most basic duty we have to other human beings generally recognized by the secular and religious alike — let others live.
Jay Watts is founder and president of Merely Human Ministries, an organization defending intrinsic human dignity.
Editors’ Note: As this issue of the JOURNAL was going to print in early June 2022, the world awaited the decision of the U.S. Supreme Court on Dobbs v. Jackson Women’s Health Organization to determine the constitutionality of a Mississippi law that restricts abortion beyond the 15th week of pregnancy (the decision not being officially announced and decided till June 24, 2022 after the printing of this issue). The May 2, 2022 leak of the “First Draft” of the Court’s majority opinion raised anticipation for an overturning of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). See the online exclusive article by Jay Watts, “The Leaked Draft: Is This the Fall of Roe v. Wade?” CHRISTIAN RESEARCH JOURNAL, May 18, 2022, https://www.equip.org/article/theleaked-draft-is-this-the-fall-of-roe-v-wade/.
NOTES
- Jessica Valenti, “The Anti-Abortion Movement Can’t Use This Myth Anymore,” New York Times, May 13, 2021, https://www.nytimes.com/2021/05/13/opinion/abortion-pill-fdacovid.html.
- Leah Libresco Sargeant, “Why the Supreme Court Should Reset the Terms of the Abortion Debate,” New York Times, June 18, 2021, https://www.nytimes.com/2021/06/18/opinion/dobbs-abortion-supreme-court.html.
- Dobbs v. Jackson Women’s Health Organization, Supreme Court of the United States, December 1, 2021, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf.
- Kate Greasley, Arguments About Abortion: Personhood, Morality, and Law (Oxford: Oxford University Press, 2017), 38.
- Dobbs v. Jackson Women’s Health Organization, 100–102.
- Joseph W. Dellapenna, Dispelling the Myths of Abortion History (Durham: Carolina Academic Press, 2006) 29–31.
- Dellapenna, Dispelling the Myths of Abortion History, 43–44.
- 8 2018 Mississippi Code Title 41 — Public Health Chapter 41 — Surgical or Medical Procedures; Consents Gestational Age Act § 41-41-191, https://law.justia.com/codes/mississippi/2018/title-41/chapter-41/gestational-age-act/section-41-41-191/.
- Christopher Kaczor, The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice, 2nd ed. (New York: Routledge, 2015), 99.
- Greasley, Arguments About Abortion, 61.
- Will Baude, “Sherif Girgis on the Supreme Court’s Options in the Next Abortion Case,” Reason, June 7, 2021, https://reason.com/volokh/2021/06/07/sherif-girgis-on-the-supremecourts-options-in-the-next-abortion-case/.
