[Editor's note:  This column appeared in READER WEEKLY
             (1 February 2001), pp. 10-11.  An earlier version was
             published in THE TWIN-PORTS PEOPLE (August 1999), p. 6
             and pp. 10-11.]

Non-Random Thoughts


Jim Fetzer                                                        

Our new president, George W. Bush, has moved quickly to assure many of
his supporters on the right that he will do what he can to curtail the
use of abortion abroad by withdrawing federal funding for abortions or
even abortion counseling in other countries.  Some critics suspect he
may actually bring about an increase in abortions as an unintended side-
effect of a policy calculated to insure that women are less knowledgable
about birth control and family planning.  Others worry that he intends
to stack the Supreme Court with anti-abortion advocates who are going
to reverse the trend toward reproductive choice.

If there was ever an issue whose merits deserve careful, thorough, and
dispassionate analysis, this is surely it, yet much of the argument for
the "pro-life" position is rooted  in slogans, such as bumper stickers
that proclaim, "Abortion is murder!"  Since murder is a practice that
human societies virtually universally condemn, it appears as though,     
if abortion IS murder, then our society ought to condemn it, which in
turn supports the conclusions that the Supreme Court is intellectual
bankrupt, that every American who supports abortion rights is morally
corrupt, and that our country is on its way to hell.

It may therefore be appropriate to ask whether or not abortion properly
qualifies as murder.  As with many other controversial issues, clarity of
thought requires precision of language.  Acts of murder, for example, may
be defined as acts involving deliberate killings of persons that are
unlawful.  Even on the assumption that abortions invariably involve
killings of persons--a premise whose truth requires further
consideration--the Supreme Court in Row v. Wade (1973) rendered its
decision that, within the boundaries that its ruling defined, women have a
constitutional right to abortion, which is thus legal.

The ruling itself drew distinctions between three intervals in the
gestation and develop- ment of the fetus, namely:  the first (three   
month) trimester (during which heart and brain activity is
established), the second trimester (during which the fetus attains via-
bility), and the third trimester (which normally results in the birth
of a child).  According to the Court, the states have no constitutional
authority to restrict abortions for any reason during the first trimester,
but may insure that they are properly performed dur- ing the second, and
only to preserve the life and health of the mother during the third.

The Court thus considers a fetus to be a PERSON in the sense of the law
when it attains the ability to survive and develop independent of its
intrauterine environment.  This matter is a question of law because it
concerns when a developing zygote, embroyo, or fetus attains a status
appropriate for bestowing the rights and privileges reserved for
citizens of of the United States, including its legal protection.
Those who advocate the "pro-life" position commonly obfuscate this issue
and beg the question by PRESUMING  that every stage in the development of
a human being is entitled to equal legal rights.

This position, which underlies much of the controversy, appears to be
untenable when subjected to explicit scrutiny.  Who would want to argue
that a child, as a stage in the development of an adult, should be
entitled to equal legal rights, including the right to drink, the right to
drive, or the right to vote?  The fallacy involved here may be called
the backward slippery slope argument, which contends that, since an
entity enjoys the legal rights of being a person when they are, say, 18
years of age, there is no good reason why they should not enjoy those
rights when they are 17, 16, 15, or even younger.

Stated this baldly, the fallacy involved here becomes apparent.  There
are many "good reasons" why human beings who have attained a certain
status called "adulthood" are entitled to certain rights and privileges
under the law they do not enjoy as teenagers, children, or babes in arms.
Ask any parent.  Analogously, there are good reasons why human fetuses
that have attained the status of viability should enjoy certain rights and
privileges under the law that they do not enjoy prior to attaining the
status of viability.  This is the underlying question that the Court
addressed in rendering a decision in Row.

The question, therefore, is not whether zygotes, embroyos, and fetuses
are stages in the development of human beings--no one should deny
this--but whether zygotes, embryos, and fetuses as stages in the
development of human beings should be accorded the same rights as human
beings at other stages of their development, namely:  those accorded to
the issue of live births, which are properly regarded as "babies".  The
only reason some might be inclined to deny that zygotes, embroyos, and
fetuses ARE stages in the development of a human being is because they
suspect the argument trades upon equivocation.

Even if the Catholic Church, for example, insists that human beings
come into existence at the moment of conception (when the soul enters the
body), that does not contradict the Supreme Court when it insists that
human beings only begin to enjoy certain legal rights at the sage of
viability.  The advantage of the Court over the Church, moreover,
is that viability is a scientific question, while ensoulment is not.
Indeed, the Court's standard appears to be conservative in relation to the
most traditional view, which is that the existence of a human being
entitled to legal rights only occurs with its birth.

No one would deny that the issue of live births properly qualify as
babies, but the use of the term in describing abortion as "killing
babies" or physicians who perform them as "baby killers" is no more than
the practice of propaganda.  The fallacy is known as the appeal to pity,
where an attempt is made to influence otherwise rational opinions about
the legitimacy of abortion by making emotional appeals to "baby killing",
which also begs the question by presuming that every stage in the development
of the fetus is entitled to the same legal rights as every other, thereby
committing several fallacies.

The Supreme Court's decision that viability marks the entitlement to
legal protection in the development of a human being is thus analogous to
attaining the status of majority, where persons who attain that status,
typically at 18 years of age, are entitled to make their own decisions
for themselves, including where to live, whom tomarry, and every
other prerogative at accompanies the status of being legally adult.
But no one of sound mind would presume that, just because persons of
younger age are going to attain that status eventually, they should
therefore enjoy those prerogatives at some younger age.

If abortions are legal, however, then abortion does not involve the
deliberate killing of a person that is unlawful, which means that, under
current law, abortion does not qualify as murder.  So the slogan,
"Abortion is murder!", is simply false.  Indeed, the deliberate
killing of persons is by no means universally condemned by human
societies.  Soldiers in combat, police in the performance of their
duties, and civilians in self-defense are cases in which the deliberate
killing of persons is not only legal but is actually esteemed.  If a
soldier kills enough enemy, for example, he may be honored with medals and

An alternative understanding of the slogan, however, would acknowledge
that "Abortion is murder!" is literally false, given the Supreme Court's
decision, but that the Constitution has been misinterpreted because such
actions SHOULD NOT be legal.  And, indeed, there is clear precedent for
admitting the possibility that actions which are legal are not there-
fore moral as well as that actions that are moral are not therefore
legal.  Actions such as owning slaves and consuming alcoholic beverages
are illustrations, since both have sometimes been legal and sometimes
illegal, yet their moral status presumably has not changed.

The legality of abortion might therefore be likened to the legality of
slavery before laws were changed and slaves were freed.  The conditions
that must be satisfied to qualify as "murder" in this NON-LITERAL sense,
therefore, is the deliberate killing of a person that is wrongful--not
legally but morally.  It therefore presumes the existence of standards of
right and wrong that can establish the moral rightness or wrongness of
abortion.  Indeed, there are some who would argue that, even if soldiers
in combat, civilians in self-defense and police in the performance of
their duties deliberately kill other persons, it does not show those acts
are moral, because deliberately killing persons is always morally wrong.

This creates a delicate predicament for those who are opposed to
abortion because, nine-times-out-of-ten, their opposition to abortion  is
rooted in their religious beliefs.  Appeals to religious beliefs, however,
are highly problematic within American society, especially because the
Constitution guarantees the freedom of religion.  The United States was
not founded as a religious republic, such as Iran, governed by clerics
rather than by clerks, but as a democratic society with separation of
church and state.  A theocracy governing on religious rather than secular
precepts is the antithesis of a representative democracy.   

It should therefore be apparent that legal rights are matters for the
legislative branch to create, the judiciary to interpret, and the
executive to enforce, within the framework of our constitutional system.
Christian fundamentalists, who are among the most fervent proponents of
the "pro-life" position, thus appear to be attempting to impose their own
personal religious values upon others who may not share their views.
They frequently insist they are right and everyone else is wrong.  Because
their opinions are rooted in articles of faith, moreover, it is impossible
to prove scientifically that they are wrong.

Once the complexity of the question has become evident, it becomes
obvious why simple slogans, such as "Abortion is murder!", obscure rather
than clarify the underlying issues.  Whether or not abortion is murder not
only depends upon whether or not what is being killed is a person but also
upon the rightness or wrongness of the act itself.  Insofar as there are
many alternative moral positions--from subjectivism, family values,
religious values, and cultural values, among traditional theories; to
ethical egoism, limited utilitarianism, classic utilitarianism, and
deontological moral theory, among philosophical alternatives--with
different answers, the immorality of abortion is anything but cut and dry.

None of this means that abortions could never qualify as murders.
Since they involve the deliberate killing of a human zygote, embryo, or
fetus, an abortion performed during the third trimester either involuntarily
or for reasons other than to preserve the life or the health of the mother
presumably would qualify as murders.  The controvesy over "partial birth
abortion" thus appears to revolve about whether merely preserving the
health of the mother is sufficient grounds for late-term abortions.
The importance of the Supreme Court's most recent ruling, therefore, is
that laws that ignore a woman's right to a late-term abortion to preserve
her health violate her constitutional rights.

When members of the "pro-life" movement urge other citizens to adopt
their views and campaign for candidates who will promote their political
agenda, they are acting within the law in a manner that is consistent with
democratic procedure.  No one who believes in constitutional government
should take exception to those who endorsed the candidacy of George W.
Bush for President because they hope that he will appoint justices to the
Supreme Court who share the "pro-life" values of Anthony Scalia and
Clarence Thomas.  That is their democratic prerogative and their
entitlement as members of this society.

When they harass and torment women who are seeking abortions for
reasons of their own, when they attempt to kill physicians who are
providing medical assistance to their patients, and when they seek to
undermine respect for constitutional government, however, they are acting
in ways that violate the basic principles on which this nation was
founded, which includes respect for minority rights, without which
democratic government becomes nothing more than the tyranny of the
majority.  Those who promote the "pro-life" position without respecting
the rights of others are profoundly unAmerican.

Ultimately, the great virtue of the "pro-choice" position is that it
does not impose the values and opinions of one group upon the actions of
others.  The "pro-choice" position allows everyone to act in harmony with
their own religious values and personal beliefs given their own personal
and medical conditions.  Those who do not want abortions are not compelled
to have them, unlike the "pro-life" position, which denies women who
want abortions the right to have them.  For a country that stands for
the right to life, liberty, and the pursuit of happiness, freedom of
religion entails freedom of choice.

These considerations support the conclusions that perhaps the Supreme
Court is not intellectual bankrupt, that perhaps Americans who supports
abortion rights are not morally corrupt, and that perhaps our country
is not on its way to hell, after all.  But they also raise serious
questions about a major political party that opposes abortion,
even in cases of rape, incest, and to save the life of the mother.  The
reasons women feel compelled to resort to abortion are many and varied,
where these are only some of the most obvious.  It is increasingly
difficult to understand why a party ostensibly opposed to government
intervention wants to dictate the intimate aspects of our lives.

Jim Fetzer, a professor of philosophy at UMD, has become concerned over
the consolidation of secular hospitals with Catholic hospitals and the
mission directives--including non-performance of abortions--with which
they are required to conform.  This tendency, which is prevalent in our
own community, combined with the inauguration of a pro-life president,
suggests it may be time to revisit the issue of abortion.





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