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Editor’s Note: This is one of two pieces we’re publishing today on abortion. Mike Rapkoch’s response may be found here.
Abortion is a contentious political issue because the two most visible positions are irreconcilable. If you think that all abortions are the moral equivalent of murder, then any accommodation with abortion makes one complicit with great evil. If, however, you think a woman has a fundamental right to terminate any pregnancy without reference to any interests besides her own personal preference, it is similarly difficult to justify restrictions on the practice.
Having hashed out my opinions on the matter on this site and elsewhere, I’ve concluded that, regardless, an unsatisfying compromise between the competing interests and factions is the best available political option. There’s the interest of the mother, the (tragically underserved) interests of the father, the interests of the fetus, and the interests of the public to be considered. Most importantly in my mind, there is the matter of practical law enforcement and the appropriate limits of state action.
In general, my apprehension of how we grant fetuses an ever-increasing quantity of rights looks like this:
At the time of conception – that is, the fertilization of a human ovum into a zygote – that organism has very few rights. It has a unique genetic sequence and it is, genetically, human. It is not, however, embedded in the uterine wall and has a reasonable chance (up to 50 percent by some reckoning) of never doing so. Drawing the distinction between spontaneously aborted blastocysts and those aborted as the result of a birth control device (such as an IUD) is difficult at best – certainly there is an element of willful behavior in the second case – but that is functionally indifferent from using any other form of highly effective birth control. At no other stage in our lives is it so difficult to tell natural from unnatural death.
Why should early-stage fetuses have rights short of those we grant people? That is primarily because, as a practical matter, we have limited ability to grant them such rights. At this point of its development, this creature is no larger than the tip of a pin and is not morphologically identifiable as a human; i.e., it’s indistinguishable in features and ability from a similarly aged fetus of other mammals. It lacks a rudimentary nervous system and, consequentially, the ability to feel pain. Moreover, it is functionally impossible to detect and thus, it seems impractical for the state to be expected to protect the rights of citizens who cannot be located, and whose existence can not be determined.
In contrast, after an implanted blastocyst has attained a certain level of development — and as the pregnancy becomes more obvious — it becomes feasible to grant an increasing quantity of rights to it. Indeed, these rights should accrue rapidly as shown in my illustration and asymptotically approach those of a full person as it reaches viability.
It makes sense that the beginning point for the growth of these rights should come as the fetus moves beyond the stage of being an implanted blastocyst and grows into recognizably human form. Another critical marker should occur when the fetus begins to have neurological activity resembling that of infants.
This transition signals the shift of the balance of interests — or perhaps the growth of the interests — of the fetus as it physically matures and becomes more and more intertwined with society and, potentially, the law.
The fact is that an early stage fetus (as opposed to the fully-formed infants that we have wisely chosen to protect) has a very tenuous relationship to a society ignorant of its existence. As conservatives who share Thomas Sowell’s understanding of the Constrained Vision, we should acknowledge that — perhaps, tragically — there there are limits to what we can accomplish through the power of government. Asserting that we can alter human nature with respect to this issue undermines our attempts to limit government’s reach in other areas.
Barry Goldwater once warned that “A government big enough to give you everything you want is a government big enough to take from you everything you have.” Given the near impossibility (short of Orwellian dystopias) of enforcing laws that treat early stage abortions as murder, conservatives should be wary of using state power in this matter. That is, a government that possesses knowledge of you which is sufficiently intimate to know when or how a woman might be in the early stages of pregnancy is too powerful and intrusive to allow for liberty, let alone to protect it. Unless we’re willing to chuck the Bill of Rights and the Constitution’s enumerated powers — things we rightly scold Progressives for doing, even granting good intentions — we need to accept that some abortion is inevitable and that the costs of enforcement would be extremely high when compared to the marginal potential benefits.
Roe v. Wade has given us a tragic legacy of division. Its human cost has been nearly incalculable in addition to the violence it did to our system of jurisprudence. Conservatives have sought to use the tools available to us to limit that damage and we have won hard-fought battles to limit late-term abortions — and I should note, done it in the correct way, through the use of the legislative process, not judicial fiat.
But let us not make the error of observing the evils of a Kermit Gosnell and his abattoir and conclude that we can and must stop all abortion. Such power is not ours to wield.
You can read Mike Rapkoch’s response here.