Who Will Decide?
photo by Bertie Bregman, circa 1988
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
— Roe, 410 U.S. at 159.
Violence is one way to decide the issue of abortion.
I remember the morning I heard the news that a Florida obstetrician named David Gunn had been assassinated outside of his clinic in Pensacola, Florida, where he provided OB/GYN and abortion services to rural patients.
It was March 10, 1993, an overcast Wednesday morning in Philadelphia. I was a second-year medical student, standing on the corner of 19th and Walnut, opposite the old Graduate hospital (no longer in existence), waiting for the bus.
I don’t remember if I heard about it on the radio or read about it in the paper, but I do remember my feelings of shock. Later that day, in the big amphitheater where all of our lectures took place, a politically conservative, pro-life classmate stood up and addressed the room. She was anguished, in tears. “Whatever it was we wanted,” she said, “it wasn’t this.”
Dr. Gunn was the first of four doctors murdered between March 1993 and May 2009 by attackers claiming to be pro-life.
The other one that stands out in my mind is Barnett Slepian, 51, one of three Obstetricians who provided abortions in the Buffalo area. It was October 23, 1998, and I was a second year Family Medicine resident at Beth Israel in New York City. In addition to other areas of obstetrics and gynecology, our training included abortion.
Dr. Slepian was returning with his wife, Lynn, from Synagogue to his suburban home, where his four sons were waiting to start dinner. He greeted them and stepped into the kitchen. At that moment, the sniper’s bullet broke through the back window, striking him in the chest. He called out for help and lay on the floor bleeding. Two hours later he was dead.
Legislation is another way to decide the issue of abortion.
On January 22, 1973, the Supreme Court ruled in Roe v. Wade that the constitution protects a woman’s liberty to choose to have an abortion without excessive government restriction. Prior to that, abortion was illegal in most states of the union. This is the case, of course, that a leaked memo last week revealed the current Supreme Court’s intention to reverse, almost 50 years later.
The 1973 Supreme Court based its decision on the due process clause of the fourteenth amendment, which prohibits arbitrary restriction of “life, liberty or property” by the government. It appealed to a “right to privacy” that had been seen from previous rulings as based on this clause. The Court further ruled that this right is not absolute, but must be balanced against the government’s interest in protecting women’s health and prenatal life.
That, of course, is the crux of the matter for the Reds - the main reason for the anti-abortion movement’s objection and protests. Hence the chosen term: pro-life.
Of course, prenatal life matters for the Blues as well. And it matters for doctors of both colors, including the OB/GYN’s and Family Physicians who perform abortions, many of whom take care of pregnant women and would go to almost any length to protect the fetus and safely deliver the baby.
In its Roe v. Wade decision, the Court tackled this problem by tying the regulation of abortion to trimesters. During the first trimester of pregnancy, states could not prohibit abortion at all; during the second trimester, states could require reasonable health regulations; during the third, states could prohibit abortion except if the life of the mother was at risk.
In a later decision, Planned Parenthood v. Casey, the Court replaced the trimester distinctions with the concept of fetal viability, the point at which the fetus could survive apart from its mother.
Expert opinion on this matter is another way to decide the issue of abortion.
The Court, however, was correct in noting, as quoted above, that there is no consensus on when life begins, whether from medicine, philosophy, or theology. Most people agree that prenatal life begins at some point between conception and birth, but unless you draw the line at either of those limits, anywhere else looks arbitrary.
From a medical standpoint, you could draw the line based on trimester, fetal viability, heartbeat, brain activity, or other criteria, all of which occur at different times. Like science in general, medicine is better at describing phenomena than determining its meaning or moral significance.
From a philosophical standpoint, prenatal life runs up against the Sorites paradox, or “heap” fallacy, which plays on the vagueness of the distinction between two terms on a continuum. Let’s say you start piling sand one grain at a time. When does it go from not-a-heap to a heap? There never seems to be a point at which a single grain should make the crucial difference, and yet, paradoxically, since you eventually end up with a heap, there must be a point at which it does.
As with sand, so with prenatal development. Granted that for such an important matter you may be forced choose - and so the Supreme Court did - but that doesn’t make the choice any less arbitrary. Whichever moment you pick, why not the moment before or the moment after?
So much for scientists and philosophers.
Theologians, on the other hand, are perfectly happy to say when life begins. The problem is, they tend to disagree. In my own Jewish tradition, life begins at 40 days, but the fetus does not obtain full person-hood equal to the mother until the head has emerged from the birth canal. Other religions draw different lines.
So who should decide the issue of abortion?
Shortly before Covid emerged, a patient of mine came in for an office visit. She had missed her last period and a home pregnancy test came back positive. It was an unintended pregnancy and, for a variety of reasons, an unwanted one. She was in her first trimester, considering abortion, and looking for advice.
The visit was intense. She was emotional and conflicted. I was able to answer most of her questions - including about the stage of fetal development, the mechanics of the procedure, the risks, and the alternatives. On deeper matters, I tried to help her clarify her values and think about how they might apply to her condition.
Whatever the outcome, it felt like the right way to decide .
Not with guns, not by politics, not in court, not by experts. Rather, in private, with counsel, and the liberty to choose within reasonable limits based on personal belief, individual circumstances, conscience and faith.
As someone not burdened by a legal education, that’s why I think the 1973 Supreme Court got Roe v. Wade exactly right.