The misleading question of innocence distorts the abortion debate
There was a time when opponents of abortion actually endorsed a restricted pro-choice position. “Pro-life” meant opposition to abortion except in cases of rape, incest and medical emergencies where a fetus posed a threat to a woman’s life. Those exceptions created room for abortion choice in specific situations.
There was a time when constitutional conservatives believed — consistent with traditional conservative opposition to governmental overreach into private life — that abortion was a medical issue not appropriately subject to governmental interference. In Barry Goldwater’s words, abortion was a “decision that’s up to the pregnant woman.”
Those days are long gone. Not only has the Supreme Court overturned Roe v Wade, but the decision could endanger traditional pro-life exceptions. Radical moral absolutism has infected anti-abortion rhetoric, finding its way, for instance, into the platform of Pennsylvania gubernatorial candidate, Doug Mastriano, who, having made abortion his “number one issue,” seeks to prohibit abortion at any point after conception.
Those who hold the Mastriano perspective have upended the traditional hierarchy of values, with the value of a developing form of human life — conceptus, embryo, fetus — not equal to but superior to the value of the pregnant woman’s life. Overlooked in the contemporary abortion discussion is the question: “Why?”
A pregnant woman is a fully endowed member of the moral community, and the fetus has only such rights as the moral community decides to confer upon it. What is it about the fetus that allows it to attain a status superior to that of the pregnant woman?
The answer to this question is troubling but it also points to a way out of the legal tangle over abortion. It lies in the attribution of innocence. The conceptus-embryo-fetus holds its superior status because it is deemed “innocent.”
To offer innocence as a reason for fetal supremacy is not the same as saying that protections for the fetus flow from species membership — the fact that the fetus is human. Of course, it is — a human conceptus is not a frog — but we make all kinds of exceptions to allow for actions that bring about the end of human life, everything from self-defense, and permissible losses of non-combatants in warfare to the cessation of life support for brain dead patients.
The absolute value of fetal life has been most prominently advanced in Roman Catholic moral teaching, but the church also preserved in Western culture the just war tradition, a perspective that opposes war but allows for exceptions in certain specified situations if certain justice criteria are met. Although this mode of moral analysis focuses on possible exceptions to generally held moral positions, the Catholic moral tradition does not apply this ethic to the fetus and to abortion. That is because, in the words of John Paul II, the fetus is not only innocent but “absolutely innocent.”
With abortion, the pope wrote, “we are dealing with murder.” Regarding the fetus, “No one more absolutely innocent could be imagined.“ And the pope denied that a life-threatening medical problem could render abortion an act of self-defense, declaring “In no way could this human being ever be considered an aggressor, much less an unjust aggressor.”
The implications of this kind of perspective are quite profound. The innocence to which Pope John Paul II refers is not the kind of innocence we attach to a person unjustly accused of a crime who can be shown to be not guilty of that crime — a conceptus cannot commit a wrongful act. Fetal innocence is not moral but metaphysical. When the pope, enmeshed as he was in Christian theology, makes a claim that the fetus is absolutely innocent and nothing more innocent can even be imagined, one can only imagine that he is invoking an idea of sinlessness and including fetal life in the cohort of others recognized as absolutely innocent: God the Father, God the Son and the Holy Spirit, and Mary, the mother of Christ whom Catholicism holds was herself the result of an immaculate conception. This church dogma explains why Jesus Christ was “absolutely innocent” and not born into sin like the rest of us.
As shocking as this perspective may be to articulate, it does allow us to understand how and why the life of an “absolutely innocent” fetus can claim supremacy over a woman’s life. The fetus shares a property thought to belong exclusively to divinity, no one in the moral community being able to claim absolute innocence.
Much that goes on in the abortion issue is infused with metaphysics and beliefs that can only be described as religious. That the government could endorse the idea that fetal life is superior to a woman’s life — not equal to but superior to — is morally reprehensible no matter what kind of sense it might make in someone’s theology. That the fetus should be absolutely protected — no exceptions — because its claim to a right to life rests on absolute innocence is a religious belief that imposed by governmental fiat violates First Amendment protections against establishing a religion. Religious bodies have addressed abortion rights in the context of faith, with my own denomination the United Church of Christ allowing diverse opinions on abortion yet speaking as a denomination in support of women’s reproductive rights, including the right to abortion.
The metaphysical and nonscientific view that attaches absolute innocence to a fetus shifts the legal discussion about abortion to theology and religious beliefs. And although I do not agree with the view that a fetus is “absolutely innocent,” I recognize this belief to be a religious view deserving of protection under the First Amendment. I also think that the traditional Jewish view that a woman whose life is in danger from pregnancy is required, even against the pregnant woman’s will, to have an abortion to save her life, is a religious view that deserves similar protection.
The solution to the abortion question lies in recognizing the religious nature of beliefs surrounding fetal humanity, something Justice Harry Blackmun did take note of in the original Roe decision but chose not to pursue. If the government, the Supreme Court in particular, could have simply abided by the Barry Goldwater conservative perspective, society might have been able to move beyond the inevitable conflicts that are about to engulf us.
My hope is that in the wake of the toppling of Roe, a new challenge on abortion rights will be raised solely on the issues related to religious beliefs and First Amendment protections. Those protections are grounded in support for the free exercise of religion and in opposition to any legislative or judicial action that would in law establish for all a religious belief.
Lloyd Steffen is a professor of Religion Studies and university chaplain at Lehigh University in Bethlehem, Pa. His most recent book is “Christianity and Violence” (Cambridge). The argument made in this article is developed at greater length in his book, “Ethics and Experience: From Just War to Abortion” (Rowman & Littlefield).