In the uproar over the leaked opinion of Justice Alito—a potential seismic shift in public policy—I fear a most critical issue is being overlooked. Justice Alito reasons that abortion is a moral issue and moral issues should be left to legislatures, not to courts. The latter may be correct, but is he right that abortion is a moral issue? I contend that his premise is wrong and abortion cannot be reduced to a question of morality. Further, the campaign against abortion is primarily, if not wholly, driven by religious belief; overturning Roe v. Wade risks placing religious doctrine into the law, contrary to the principles of the First Amendment.
Morality is about good and evil, right and wrong. A court determines what is lawful, not what is good; what is unlawful, not what is bad. Not all things that are legal are good. Slavery, to cite an obvious example, was at one time legal. It was never good. The Underground Railroad, on the other hand, was good, but illegal. Under Justice Alito’s reasoning, it is Congress (and/or state legislatures) that should make that determination, putting abortion in the same category as slavery, murder, theft, rape, etc. Abortion opponents would have us believe that abortion is simply another form of murder and, therefore, a moral wrong.
I have a certain level of respect for those who hold such views based on their religious beliefs. I fully agree that the act of procreation contains within it something that is sacred and should be viewed with certain awe and reverence. But to view a fertilized egg as a full human being with all rights protected by our constitution would be a highly problematic and unprecedented legal principle. Furthermore, it is fundamentally a religious concept that is completely foreign to the beliefs and conscience of many, including my own.
One can make the religious argument against abortion and teach that life begins at conception. The First Amendment protects that right. But here is the thing about religious belief. As much as some would like to make it otherwise, we are not a theocracy. All religions do not teach that life begins at conception and hence, any law based on that rationale would be to choose one religious belief over another, contrary to the First Amendment.
Justice Alito would have us believe that this is primarily a moral issue, not simply a religious one. We should not fall into that trap for several reasons:
First, morals change as culture evolves. For many decades homosexuality was considered immoral in our culture. Later, it was not about who one was but what one did. You could be gay, you just couldn’t have sex with someone of the same gender. Or if you did, just keep it in the closet. That we, as a society, engaged in such collective oppression for so long is a sad commentary on our ability to be cruel to those not in the majority. And there is good reason to believe that if Roe goes, so too could other freedoms. Marriage equality for same sex couples could be next.
Second, when abortion is viewed as a moral issue (rather than a medical issue or a matter of reproductive choice), then those who support the right of women to make that decision, or who have had or have assisted someone with an abortion, can be declared immoral. From those I have known who had or were considering abortion or assisted someone with an abortion, including my mother (a minister’s wife no less) who aided a member of our church with an abortion before Roe, I can say every woman considering abortion gives it very serious consideration and, more often than not, struggles significantly with the decision. Saying abortion is a moral choice is not helpful.
Fertilization does not magically turn an egg into a human being. For those interested in the Biblical perspective, the beginning of life is most closely associated with breath (Genesis 2:7), not with the beat of the heart let alone an electrical impulse prior to the formation of the heart. There is no question that the fetus is a potential human being, but when does it cross that threshold from potential to actual? The process of becoming human cannot be reduced to the act of fertilization, it is a complex evolution of many magical moments over a period of months. Were it otherwise, even if abortion did not exist, we’d have to conclude that millions of human beings never get the chance to be born. As a religious person, I reject such belief as incompatible with my understanding of God and life.
A priest, a protestant minister and a rabbi argue over when life begins. The priest asserts life begins at conception. “No,” says the minister, “life begins at birth.” “You are both wrong,” says the rabbi, “life begins when the dog dies and the last child leaves home. That’s when life really begins!” The moral of the story is that there simply is no point on the continuum when all can readily agree, THAT is the point a fetus becomes a human being.
There was a time when “quickening”, the feeling of movement, was determined to be that point. As our medical knowledge advanced, quickening was replaced with “viability”. Fertilization, implantation, heartbeat, brain waves, breath—all are necessary for human life. Placing the full weight of morality at the beginning of that continuum rather than the end would be exceptionally bad public policy, placing the religious convictions of a minority over the will of the majority.
Here is what I find immoral. Telling a young teenager who is the victim of incest that she has no choice and must carry a pregnancy to term; that is immoral. Telling a mom with three children whom she struggles to feed and who is dependent on an abusive husband opposed to any kind of birth control that she must bear a fourth pregnancy to term; that is immoral. Telling those who are pregnant that they cannot abort a fetus which has no chance of survival and which may even threaten their own life; that is immoral. A system which by default will give women with financial means an option to end their pregnancy and those without financial means, no such option; that is immoral. Knowing that by outlawing all forms of abortion you are guaranteeing that hundreds if not thousands of women will have their health and life threatened from botched abortions performed by those without license or proper facilities; that is immoral.
Finally, where is the reciprocity? As if a young pregnant woman doesn’t have enough to worry about, why should we place on her the burden of morality when her partner in this alleged crime bears no equal burden? For the reality is, men simply do not bear the same consequences as do women when there is an unplanned or problematic pregnancy. Sure, there are men who do the right thing and take responsibility for a pregnancy they caused. But that is a choice they make. If Roe is overturned, choice will be taken from women. And women who can least afford it will bear the greatest burden.
My own religious convictions lead me to conclude that you cannot speak of a human being prior to “viability”. It is then and only then that abortion begins to become a moral issue, or that issues of morality begin to bear similar weight as other factors. But that is my religious belief and as such, not one that should be imposed on all of us. Most importantly, I believe that women should be trusted and empowered to make the right choice in consultation with their health care provider, and, if appropriate, their intimate partner, and given the resources and support they need to make the right choice for them. And that is what the law should support.
Photo from Don Shrubshell/Columbia Daily Tribune, 5/3/22