Pro-choice, pro-life, and rescue

Where is the ultimate human value to be found?

Ronald D. Anton, an attorney in Niagara Falls, New York, is a lay preacher, a former lecturer in Christian ethics at Niagara Bible College, and a former lecturer in civil rights law at the University of Buffalo Law School.

Public debate over abortion has been raging for decades, and the conflict appears insoluble and interminable. Even as the United States has begun to brace for another round of inflammatory rhetoric, polarization, and militant campaigns to win popular and legislative support, it is time to reexamine the basic assumptions and carefully review the zeal and passions motivating opposing views. In the coming struggle to capture the nation's mind and conscience, all sides will profit from heeding both Juvenal's "Know thyself" and Aristophanes' "The wise learn much from their enemies." Then we can develop insightful and persuasive rebuttals and revive consideration for the legitimate concerns and needs of others.

To assist this dialogue, it may be helpful to have an evenhanded summary of the competing life and liberty claims advanced by pro-life and pro-choice advocates.

Before 1973 most states outlawed abortion, except in cases of rape, incest, or necessity to save the mother's life. It was taken for granted that the unborn child was included among those enjoying an unalienable right to life under the Declaration of Independence, and the right to life, liberty, and property under the Fourteenth Amendment.

In 1973 in Roe v. Wade, the U.S. Supreme Court ruled that an unborn fetus was not a living human being, and thus not a legal person entitled to the right to life protected by the Constitution. Rather, it was the property of its mother and literally a part of her body over which she had control. Even though the Constitution does not expressly create such a right, the Court inferred that physical privacy was a fundamental constitutional right, and thus inviolate against state intrusion.

At the same time, state legislatures were loosed to enact laws permitting abortion if they so elected. New York, for example, authorizes abortion and characterizes it as "justifiable" if done within 24 weeks from the beginning of pregnancy, and in the third trimester provided it is necessary to preserve the mother's life. Abortion after the twenty-fourth week is prohibited, presumably in recognition of a living being then occupying the womb, and despite the rejection of the mother's claim of freedom to regulate her own body.

Pro-choice: freedom to decide

The largest group of abortion advocates is comprised of pro-choicers, who champion a woman's right of unlimited freedom to decide what will happen in the use and enjoyment of her body. If a woman cannot direct the most intimate functions of her body her reproductive capabilities then she cannot have control over her own life. A woman's right of self-determination, they say, should not be curtailed by irrational governmental decrees or the whims of her male partner.

Pro-choicers construe the self-evident natural law principles the unalienable rights of life and liberty incorporated in the American Declaration of Independence as guaranteeing a woman the right to be and do what she pleases, with liberty to fulfill that right in pursuit of her personal choice of happiness. How can these rights to life and liberty of an existing human be disregarded, they ask, to subordinate them to rights of a potential being?

Pro-choicers regard abortion as a flawed solution, but one imposing the least anguish, affliction, and guilt in the regrettable circumstances of unwanted pregnancy especially in the cases of rape, incest, predictable birth defects, and necessity to save a woman's life.

Pro-choice is compatible with John Stuart Mill's concept of privacy: that freedom in society ought not be restrained where its exercise affects and concerns only the individual, as might occur in the solitary, private use of drugs, tobacco, or alcohol. However, as pro-lifers observe, the corollary is that society may properly regulate individual behavior that demonstrably interferes with the rights of others, such as an unborn child's right to life.

The classic argument of nonconsent as a justification for abortion was presented by Professor Judith Jarvis Thompson of Massachusetts Institute of Technology in 1971. Suppose, she posited, that some child prodigy, or any exemplar of human excellence, suffers from a fatal disease that can be reversed only by extended transfusions of a rare blood type. Suppose a woman known to have the right type of blood is kidnapped by supporters of this exceptional being, and gently but unwillingly confined in a comfortable but bolted room. She is then advised she will be coupled to him by a lifeline for nine months, and warned that disconnection before the ninth month assures his death, while uninterrupted attachment will produce his deliverance and independence.

Is it morally incumbent that the woman accede to this arrangement to preserve his life? If this unwilling captive refuses to accept such curtailment of her life, liberty, and happiness, who would not spring to her defense and sever the enslaving supply line, even if it meant the death of her dependent? For pro-choicers, the injustice of compelling unwilling participation in any symbiotic relationship, especially the servitude of unwanted pregnancy, is highlighted by thus framing the debate in terms of contractual consent and free choice.

Pro-life: right to live

Pro-lifers reply that the one who ventures into the thicket of contractual consent may become entangled in the brambles of personal responsibility. Did not the woman exercise total control over her life and body when she consented to sex, with knowledge of its possible consequences? Is it not reasonably foreseeable that a consensual act of intercourse will result in conception, and necessarily produce restricted freedom? A woman is not relieved of her duty to honor the consequences of the vaunted free choice expressed in her initial copulative act, even if performance of that duty is burdensome.

Yet there may be some risks a woman is not prepared to assume, because they are uncontemplated. It is foreseeable that precautionary contraceptive devices will be defective; or that the birth of a deformed child is possible, even though not statistically probable. However, it can be argued that these unwanted consequences of conception are too remote to establish advance consent or intentional assumption of their risk, despite an otherwise voluntary act of intercourse.

Indeed, in contract law, mutual mistake of fact about material circumstances can void an agreement, and relive an aggrieved party of the duty to perform. Accordingly, might not special circumstances justify abortion if conception is imposed by unwilling participation, as in cases of rape or incest, or where minors lack the volitional capacity to give informed consent to the arrangement? These are troublesome distinctions and difficult choices that require careful scrutiny in the ongoing debate about abortion.

Pro-lifers further respond that no woman's specific exercise of freedom may infringe the equal right to life of another. Every individual's freedom in society is limited, as summed up in the homely legal maxim "My right to swing my fist ends where your nose begins." There is no aspect of civilized society where one has total control over his life or liberty. In exchange for society's pro tection and advantages, you surrender absolute freedom. You cannot block an obnoxious neighbor's equal access to light and air by installing a high fence between your land and his. Because your neighbor has property rights, you are not free to raise odorous farm animals in the city.

A woman may be opposed to wearing a seat belt, but law and her own safety require that she wear it and thus be restrained for nine minutes or nine hours while driving. She is also inhibited in her freedom to use heroin or enjoy smoking in public places. Of course, pro-choice advocates respond that compulsory pregnancy involves a nine-month servitude, and is not a relatively minor intrusion on freedom, as is the use of a seat belt. They argue that both the length of time and the nature of the infringement are mensurations in any policy that limits personal freedom.

Pro-lifers are chagrined when they are characterized as anti-choice. They point out that the claim of freedom to choose abortion is less persuasive when we consider that every wrongful act involves a choice to act or refrain from acting. The assertion of freedom to act is clearly irrelevant in the analogous case of choosing to steal or not steal. If abortion is murder of human life, then the issue is not freedom to use one's own body, but freedom of choice between killing or not killing a person, of doing right rather than wrong. The lightness or wrongness of an act can never be determined by the freedom of choice to act.

Pro-lifers especially resent being com pared to Nazis simply because both groups are anti-abortion. Hitler opposed abortion because he wanted the population to increase for national military strength. Pro-lifers seek to prevent murder of innocent babies, and calling them Nazis is as illogical as calling a dog a cat simply because they both have four legs.

Advocates for abortion

Abortion advocates are clearly not a homogenous group. There are some who endorse abortion because it is a population control measure that deters the alternative lifestyle of unwed mothers on the public dole. These eugenic throwbacks are not concerned with a woman's dignity or free choice, but seek only to prevent the swelling of welfare rolls.

Others regard abortion as a useful tool to control the population explosion. Still others look to abortion as a method of dealing with deformed babies, made more easily identifiable by amniocentesis and sonogram. This is equivalent to eliminating a social problem by destroying the persons who constitute or cause it, and is thus unworthy of further comment.

Other abortion advocates are concerned that outlawing abortions will not end them, but only encourage criminal activity as unqualified charlatans eagerly fill the void. Women who can afford medically safe abortions will shop around for a legal or congenial venue. Those who lack funds will revert to the furtive practices of coat hangers, unsanitary facilities, and slaughter by quackery. Legalized abortion may be an atrocity, but still one preferable to the inevitable unhygienic criminal abortions that would otherwise occur.

In point of fact, most women contemplating abortion are concerned with emotional, economic, or physical considerations, and seldom invoke feminist principles or reproductive rights on their own behalf. When a normally blessed event becomes a personal calamity, whether the decision is to terminate the pregnancy or carry to term, we cannot measure the anxiety, shame, guilt, and remorse of undergoing an abortion against the agony of enduring a compulsory pregnancy and delivery, followed by adoption, or the rearing of an unloved, unwanted child.

Although not prepared to outlaw abortion, many advocates of individual free choice for women refuse to endorse it as an acceptable public policy for mere reasons of birth control and women's convenience. They prefer that the talent, time, and treasure expended in protesting abortion or in regulating the protests be better allocated to teaching abstinence and birth control as alternatives to abortion. They would approve of society providing encouragement for paternal responsibility in parenting children, and furnishing emotional and financial sup port for those who would complete the pregnancy for purposes of child-rearing or adoption. They would have us focus all our energies on effecting social, rather than political, condemnation of abortion through education and persuasion, which is addressed to and consistent with a woman's right of self-determination.

Advocates for anti-abortion

Members of the anti-abortion camp are similarly diverse. Some feel that a growing population is a nation's primary resource, and that abortion only decimates the next generation, and denies a country of millions of youthful citizens consumers, with dire economic consequences. There is also widespread concern that legitimizing any immoral con duct will attract innocents and encourage experimentation by those who would otherwise shun an activity declared to be illegal. Many characterize abortion as the leading cause of America's moral decay and degeneracy, leading to our national decline and self-destruction.

The vast majority of pro-lifers oppose abortion because of their loving concern for preserving every unborn child's life. They condemn the callous slaughter of millions of babies as violating God's sixth commandment, "Thou shalt not kill." Only God gives human life, and only God has the right to take it away. We are morally bound to protect it. Abortion is a sin that perverts the procreative purpose of sex by destroying human life.

Pro-lifers traditionally take the position that human life begins with conception, at the moment of fertilization, or shortly thereafter following a brief delayed animation. In the Old Testament, Job, David, Isaiah, and Jeremiah spoke of human beings foreknown to God even before their formation in the womb. The psalmist acknowledged that God is involved before conception: "Thou hast covered me in my mother's womb.... All my members were written, which in continuance were fashioned, when as yet there was none of them" (Ps. 139:13-16).

The Gospel of Luke relates that the baby in Elisabeth's womb leaped for joy when it heard the voice of Mary, and sensed the unborn Jesus in His mother's womb (see Luke 1:41, 44). Tertullian taught that "he is a man who is to be a man, that the fruit is always present in the seed." Both the Hippocratic oath and the Oath of Maimonides proscribed abortion by physicians.

The conflict and the debate

Herein lies the root of the pro-life versus pro-choice conflict. Pro-lifers speak of murdering babies. Pro-choicers focus on a woman's dominion over her body because there is no conclusive proof that life begins at conception. It is easier for a pro-choicer to sidestep the charge of murder if pro-lifers try to establish life from the moment of conception. It is easy to regard an embryo or fetus as not yet human, but simply a fertilized ovum or inchoate tissue, if we look only at the moment of fertilization. For despite the gametes' procreative potential, no one seriously regards pristine spermatozoa or unfertilized ova as human life. Indeed, millions of them are routinely destroyed, ejaculated, or discarded every day. What makes their union any more human after a few hours or days?

Moreover, if pro-choicers can determine vitality by the occasion of quickening, when a woman can feel the fetus stirring within her, or can fix viability at the moment when infant life is presumed capable of surviving independently outside the womb, then life does not occur until the fifth or sixth month. This suggests that abortion should be permissible at least up to the last trimester.

Pro-choicers also argue that when God formed Adam out of the dust of the ground, he did not become a living soul, according to the Genesis narrative, until God breathed the breath of life into his nostrils. And why, they query, has the Roman Catholic Church, that staunch opponent of abortion, declined since 1713 to baptize stillborn or miscarried fetuses?

Pro-lifers retort that the significant reality is not so much when life begins, but the fact that life has indisputably begun by the time a woman entertains the abortion alternative. Modern biologists generally accept that life begins by the seventh day after conception, when the fertilized egg is implanted in the wall of the uterus, which generally occurs weeks before any awareness of pregnancy.

Pro-lifers cite reports showing that preborns have brain activity at six weeks and heartbeats at four weeks, and respond to external stimuli in their environment. Pro-lifers decry the atrocities of dismemberment, poisoning, and strangulation of sentient beings in the womb. A preborn engulfed by the salt solution used in the saline abortion technique will wriggle and squirm in the womb until dead. A fetus prematurely delivered by prostaglandin injections (which induce muscle contractions) will be born alive and shortly die because of its immaturity.

Once a child is born, no one will tolerate murder committed by the child's mother simply because of the inconvenience to her of child rearing. How, then, can a woman justifiably kill her fetus to escape the lesser demands and dependency imposed by a developing child in the womb? That fetus will not develop into a bird or a fish, but is conceived and born as a human, made in the image of God. Our laws recognize the consistent development principle by legislation that seeks to preserve endangered species. For example, not only the killing of a bald eagle is forbidden, but also the breaking of its eggs, because they will develop only into bald eagles.

Some pro-choicers, sensitive to the accusations of infanticide or bothered by doubts there may be life soon after conception, shift the debate to devaluation of all life. They contend that not even God exalts human life absolutely, but destroys all unrepentant and rebellious sinners. They point out that God exterminated all life, including babies, in the Flood, at the time of Noah, and that He did not hesitate to kill all the firstborn males in Egypt during the Passover.

Moreover, as if on some avenging sortie through the alphabet, God delivered or directed preemptive strikes against the Amalekites, Ammonites, Amorites, and Anakims, even to the extent of annihilating all women, children, and live stock (Ex. 17:14; Jer. 49:2; Deut. 20:17; Joshua 14:12). The killing of human beings in necessary self-defense or in time of war constitute other well-established exceptions to the absolute sanctity of life.

Pro-lifers retort that an abortionist is not God, and certainly claims no divine directive to kill. Rather, he executes only human will, often motivated by greed. Abortion destroys innocence rather than wickedness, whereas God never destroyed human life except to preserve the life and sanctity of His people against evil. God destroyed only nations that had become so corrupt that there was no possibility of redeeming or rehabilitating anyone. Since they rejected teachers or examples of righteousness, their off spring would have been produced with the same evil character and destined for the same fate. Their example of rebellion and self-indulgence would have corrupted God's people and worked incalculable harm to the innocent. Therefore, God lovingly imposed the least suffering then, to avoid greater suffering to His people later.

That being the case, pro-choicers re join, at the very least, honesty should compel us to acknowledge that abortion is justified when a woman's life is endangered by continuing her pregnancy. Con genital cardiac defects, for example, can impose formidable risks during pregnancy, as in cases of primary pulmonary hypertension or Marfan's syndrome, which also carries a high incidence of genetic transmission.

Operation rescuers

In the vanguard of the pro-life movement we fined Operation Rescuers, who assert constitutional rights of free speech and assembly to declare the depth and intensity of their personal commitment. They subject themselves to arrest and imprisonment and endure other abuses to contrast the morality of the pro-life stance with the wickedness of abortion. The purpose of their demonstrations and lawbreaking is to persuade others to accept their point of view, by creating a crisis of conscience that forces observers to con front the moral realities of abortion.

They employ tactics of nonviolentbut obstructionist civil disobedience, in the tradition of Gandhi and Martin Luther King, such as blockading abortion facilities to prevent free access by patients. The more extremist Rescuers would picket and publicly ostracize abortionists at their homes and clubs, and literally demolish their clinics. Rescuers are zealots, dissidents, and dissenters inveighing against a majority position that has been lawfully determined in the governmental process.

Rescuers proclaim their allegiance to a higher law of God that forbids murder, feeling that their allegiance entitles them forcibly to resist unjust human laws. Since people do not derive rights from the state, but from God, they are at liberty to dis obey and ought to do so, despite personal loss or suffering whenever civil government or human institutions transgress divine law.

Rescuers assert a citizen's right of self-defense against life-threatening attacks, and by extension, their right to intervene on behalf of a loved one or any helpless child who is being molested. Accordingly, they claim the right to come to the protection of the utterly defenseless by asserting the unborn child's right to life and removing it from a place of danger to a place of safety.

The law of necessity, as successfully invoked by anti-nuclear protesters, also entitles rescuers to break the law of the land. The exigency of a child trapped in a burning building or drowning in a swimming pool would entitle a rescuer to enter the property to save a child's life, despite a no-trespassing law.

Rescuers assert godly motives and point out that although Jesus usually submitted to authority and was passively acquiescent in death, He went beyond exhortation or admonition when He forcibly expelled the money changers from the Temple. Their commercial activity did not violate human laws, but Jesus protested and took matters into His own hands in obedience to a higher principle.

Rescuers also note that America's Declaration of Independence was born out of the struggle to challenge lawfully constituted authority, to defy corrupt government, and to disobey unjust laws when they violate God's higher law. The idea of freedom in submission to law assumes rationality, responsibility, and integrity on the part of the free. However, the person in a minority need not submit compliantly while waiting for the majority to come to its senses, when his or her right is based on God-given rights. On the other hand, pro-abortionists could not claim the same right of conscience to disobey the law once abortions are outlawed, because they would not be acting according to a divine directive.

The sum total of majority sentiments does not lead infallibly to moral principle. The majority in Nazi Germany accepted or tacitly concurred in the Nazi objectives, but they were still wrong. The Nuremberg trials affirmed that there is a higher moral law to which all men are accountable. One could not justify Nazi atrocities under the pretext of obeying lawful commands of a superior. One is guilty of taking part in any act that violates higher moral law, and is obligated to refuse participation in such criminal activity even if lawful in one's society.

Indeed, Rescuers argue that the practical purpose of the Constitution is to protect minorities who lack power and influence, not only against oppressive tyrants but also against the caprice or passing of popular will asserted by a rabble or morally bankrupt majority. Hence, the Bill of Rights protects individuals against governmental transgressions irresponsibly applied by the incumbent majority.

We obey law in society because it maximizes enjoyment of individual freedoms, and increases aggregate personal freedom. We will submit to an orderly system of traffic controls and stop at red lights because the system generates far more freedom by allowing us to proceed whenever we have green lights. How ever, reasonable men will circumvent a malfunctioning part of the system, and proceed at their own peril when a light is broken and stays red indefinitely. We disobey the law in that case because it imposes more stopping than starting, and because the authorities have failed to correct the malfunction. A law that has "gone on the blink" no longer serves its legitimate purpose of expanding total personal freedoms.

Many pro-lifers are uncomfortable with the bellicosity, lawbreaking, and exploitation of publicity rampant in Operation Rescue's tactics. Since our governmental system truly offers freedom to dissent and protest, one has a correlative responsibility to persuade others, including lawmakers, by orderly appeals to reason and conscience. Disagreement with a contrary majority opinion does not entitle one to disrupt order and destroy the very society that protects one's freedoms. Both Peter and Paul urged allegiance and submission to every established government because it was instituted by God to preserve law and order, under which personal peace and spirituality could flourish (see 1 Peter 2:13,14; Rom. 13:1; Titus 3:1).

Critics of Rescuers maintain that the public peace and tranquility ought not to be violated by well-intentioned malcontents provoking confrontations masquerading as free speech. Abortion is presently a lawful occupation entitled to protection under property and employment rights, and there are often other lawful healing activities conducted on the premises, justifying freedom of access by the public.

Some faithful Christians would prefer that religious militancy be confined to prayer warfare, and not used for social combativeness. Believers ought not to assert their own rights in protest, but commit them to the care of the Lord. It is God's prerogative to judge the unrighteous. When we entrust the struggle to the Lord, the integrity of spiritual people is maintained by submission to authority. The godliness and excellence of one's life are the best persuasions for winning souls to the Lord, which after all is the Great Commission of believers. The ultimate human value, undiluted by worldly preoccupations, involves neither life, nor freedom, but glorifying God. Which, Rescuers reply, is precisely the reason they are called to act as they do on behalf of others.

President Harry Truman once whimsically called for a one-armed expert so he could escape the customary equivocal forecast: "On the one hand, yes, but on the other hand, no." It is often difficult to consider the arguments advanced by others with an open mind. It is far easier to repose in the insularity of dogmatic certainty. Yet there are many voices mingled in the ethos, and we should listen for them. If we are to resolve honest differences of opinion, we must give equal regard to every other American's legitimate needs and rights. The footprints of the Lord are visible to one who searches for them. By walking in His love, com passion, and concern for all, we can begin to bind up one another's wounds.

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Ronald D. Anton, an attorney in Niagara Falls, New York, is a lay preacher, a former lecturer in Christian ethics at Niagara Bible College, and a former lecturer in civil rights law at the University of Buffalo Law School.

September 1992

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