Abortion

Andrew Dobbs of The Burnt Orange Report has a post on abortion (hat tip: Wizbang), and what he’s come to think of it after a long bout of reasoning his way through the issues raised by abortions in general. Both the post and the comments are worth reading.

Abortion is an odd issue for me. It is one of two significant issues on which I’ve radically altered my opinion (the other being the death penalty) in recent years. Rather than simply stating a position for or against – the bottom line after which all the ideologues can stop listening and start praising or defaming you for your opinion – I’d like to address a critical related issue: when does life begin and when does it end, from a legal perspective.

It does no good to argue about the biological beginning or end of life: such markers are meaningful to those involved in the events, but not to society at large. A society can not form its law on pure moral principle, because to do so is inherently to deny a very necessary moral principle: the right of individuals to form their moral principles. In other words, if we form laws based on some person’s moral code – or even a moral code presumably shared by all – we are compelling some people to abide by a moral code they do not share.

The fundamental purpose of government was laid out over 200 years ago by five men in Philadelphia, facing the dilemma of having no actual government in effect, and needing to state the reasons they and their compatriots deserved to form a new government to fill that void. The Declaration of Independence is our meta-constitution, the reasoning under which we formed the Articles of Configuration, threw them aside for our present Constitution, and may at any time decide to throw that aside for a more fitting instrument. The key of the document is this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Note well: the purpose of government is to provide an environment that allows its citizens (such a principle could never lead to a nation whose people are subjects) to be safe and happy, should they desire to be so. That’s it; no more. There is no moral requirement at all.

Murder, child pornography, robbery and such are illegal – or should be – not because they are immoral, but because they create an unsafe society. Without the law preventing (or punishing) injustice, the only alternative defense people would have would be personal violence. In other words, the law prevents us from killing our enemies, by killing or confining or fining them for us. Or, to pull out a useful quote: “Politics is a substitute for bloodshed, but only for as long as it holds out the possibility of reaching decisions amicably, preserving good will among men regardless of who ‘wins’ and who ‘loses.’ – Francis Porretto.

Law is the same: the rule of law is a substitute for mob rule and for tyranny, both of which are unacceptable, but only for so long as it leads to acceptance of the outcome by both winner and loser.

But there’s an inherent problem with this: what happens when two people make conflicting claims that are in conflict? What if one person claims a contract was unfulfilled while the other claims that it was fulfilled? What if two people claim the same property as theirs? What if one person claims that abortion is no different from a haircut, destroying a part of one’s self but not killing anything, while another claims that abortion is killing another living being?

In cases like that, the government has a duty to adjudicate, again in order to prevent vigilante solutions. But in order to adjudicate fairly, the government must first define. What constitutes a binding contract, and what constitutes fulfillment of its terms? What remedies does one have if a contract is in fact violated? What rules shall be used to create, bestow, transfer and alienate property titles? When does life begin and when does life end?

Like the former questions, the latter question is a practical and legal question, not a moral question. It is of little moment to the underlying principle of law when life begins biologically. The government cannot, for example, have any control of a pregnancy prior to the moment that it becomes known to at least the mother. Nor can the government have any control of a person’s life once their body will no longer support it even with all of the interventions medical science can today (or in the future) provide.

So, from a practical point of view, what time or conditions should be construed as creating a legal person with enforceable rights, and at what point of time or under what conditions does a legal person with enforceable rights cease to exist?

I would argue that prior to the time that a developing baby can survive outside of the mother, with full medical intervention, with at least a 50% chance of survival for one year, the government has no business intervening – to all legal intents and purposes the baby prior to that point is at best a symbiotic life form, possibly a parasitic life form, and certainly not a fit subject for law. Prior to that point, there is simply no way that any government adjudication in favor of the baby could be enforceable without an unconscionable invasion of the rights of the mother. The law should step aside. After that time, in extremis, the baby could if necessary be delivered by caesarian section and protected by the State. After that point, it is arguable whether or not the law should intervene.

And note the law’s current hypocrisy here: if a mother aborts a week prior to her due date, that is likely legal; but if she were stabbed and the baby were to die, the person who assaulted her would likely be charged with and convicted of the murder of the baby. Well, is it a person or isn’t it? The law, to be neutral, should decide the same way for all purposes.

Similarly, I would argue that at the point that a person cannot stay alive mechanically (that is, able to respirate, ingest and excrete, at a minimum) without the full intervention of medical technology, and once it is apparent that this state is perpetual, the law should step aside. At that point, it is up to the person in question (if they are capable) or their guardian (if they are not) to make the decisions, with no intervention from the State or other parties.

OK, having said all of that, I think that abortion is morally abhorrent, but I don’t think that abortion should be illegal prior to the point that I note above, when a baby can survive without the mother. After that, I think that the baby is a person capable of independent existence and should be protected by the law no differently than should a newborn or a 2 year old.