When it comes to abortion, no one’s right is absolute

Defining the unborn child as a legal person does little to resolve the issue.

Illustration of a fetus. Image by Raman Oza/Pixabay/Creative Commons

(RNS) — “Life begins at conception,” say the pro-lifers. I take that to mean that for them, a human life begins when a sperm fertilizes an egg.

This biological definition does not make a fertilized egg into a legal person, however, although the pro-life movement believes it should. As conservative legal scholar Erika Bachiochi wrote in a New York Times op-ed last week, “(C)onstitutional protection of unborn children as equal ‘persons’ under the law remains the movement’s ultimate — if elusive — goal.”

But what does it mean to be an equal person under the law? That’s where things get complicated.

Children (post-born) are legal persons, but they don’t enjoy all the same legal rights as adults. They can’t drive, marry, vote or purchase guns and alcohol until they reach a certain age.

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Likewise (and particularly to the point here), their parents have certain rights over them, including the right to limit their medical treatment — even at risk to their health. Parents do not, however, get to physically abuse their children (though the definition of abuse has varied over time and place). They also do not have the right to take their children’s lives (though once upon a time infanticide was a widespread, licit practice).

Balancing the rights of parents against those of their children is thus a matter of evolving mores, values and norms. In the U.S., we give some deference to the parents’ religious views, granting exemptions from prevailing laws as legislatures and the courts deem warranted.

As a moral and legal issue, abortion is best understood as entailing a comparable balancing of the sometimes competing rights of parents and children. For the sake of this discussion, I will use the pro-lifers’ preferred “unborn child” when referring to a zygote/blastocyst/embryo/fetus.

In most times and places, the pregnant woman’s right to life has been judged to take precedence over that of her unborn child (its entitlement to a live birth). Most religious traditions consider abortion to be permissible, if not mandatory, when the life of the mother is at stake.

To be sure, the balance is not always struck that way. For example, Catholic moral theology has developed a “doctrine of double effect” under which the unborn child’s life cannot be sacrificed in order to save the pregnant woman’s, but can be terminated as a byproduct of a medical procedure necessary to save her life (such as the surgical removal of a cancerous uterus). 

There are other circumstances where the woman’s right to choose an abortion has been widely accepted: If the pregnancy is judged to pose a serious risk to her physical or emotional health, or if it came about by rape or incest. Or if the unborn child is discovered to have a fatal disease or disability.

More broadly, there has always been a sense that the unborn child’s right to life grows in the course of a pregnancy — and, concomitantly, that early-stage abortions are licit or less morally problematic than later ones.

Numerous religious traditions have recognized this via the concept of ensoulment, by which it is well after a pregnancy begins that the soul is joined to the corporeal material in the womb. Historically, ensoulment was thought to be marked by quickening (when the mother first feels the baby’s movement), after which abortion became more morally and legally problematic.

In a similar manner, the Supreme Court’s now defunct Roe v. Wade decision, noting that abortion prior to quickening was not an indictable offense in common law, found that the state has an interest in preserving the unborn child after it becomes viable outside the womb.

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Planned Parenthood v. Casey, the 1992 decision that the court also overturned last month, weakened the woman’s right vis-a-vis the unborn child by allowing states to impose what became an increasingly strong array of abortion restrictions.

With abortion now rejected as a constitutional right, blue states are shoring up the woman’s right to choose even as red states tilt the balance more and more in favor of the unborn child’s right to life.

If the one right is not absolute, neither is the other.

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