Chapter 8

The Ethicist's Perspective

INCLUSION OF the specifically ethical aspect of abortion adds something other to the discussion than a new set of complexities. Considerations of morality are involved in most serious issues of public policy, of course, but in the case of abortion, the argument goes to such depths that a working compromise among the conflicting viewpoints is difficult to reach.

The most obvious reason is that the abortion question asks us, first, to define human life and determine when its presence is to be recognized, and then to put a value on it which can be measured against other values. Here we begin to cope with problems of philosophy and theology, and this in the public forum in an irreducibly pluralist society. Since disputes over moral values are at the heart of the abortion issue, one must begin with an effort to articulate the ethical premises and working methods on which the differing approaches are grounded.

The great practical obstacle to compromise rising out of ethical differences is clear. Many of those who oppose liberalization of abortion laws do so in the name of what they consider a helpless minority--unborn children. They consider the fetus a human person, and they assign to fully human life a value which is very nearly absolute. The direct, intentional taking of innocent human life is judged to be an unacceptable means, however desirable the end. Both these propositions encounter opposition. Some question the human character of the fetus Others question that even if the fetus is a form of human life its value is to be taken as absolute.

For this viewpoint the issue turns in part on the question: When does human life begin? Our contemporary instinct inclines us to dilute any metaphysical flavoring in such questions by turning them over to science, in this case to medicine. But for the most part the doctors decline the assignment, their data define humanness no better than the dictionary defines poetry. At any rate, in our present state of biological ignorance and philosophical pluralism, the premise that the fetus is a human person cannot be proved or disproved to the satisfaction of all. In these circumstances neither those who uphold the premise nor those who deny it may gratuitously assert superior moral sensitivity over their opponents; neither claim can rightfully push the other off the political stage.

Some ethicists would be inclined to dismiss the debate over the status of the fetus as a nonissue, on the ground that a question which is unanswerable becomes irrelevant. But in a controversy which will be settled, one way or another, by legislation affecting all citizens, views honestly held by a considerable number of citizens cannot be ruled out of contention. Since ethical viewpoints influence or even control every other aspect of the abortion controversy, and since the sharpest cleavage is over the significance of the fetus, the "unanswerable" question must be taken into account.

Just as it is not easy to state the ethical issue neutrally, neither is it a simple matter to define the competence of the professional ethicist or the moral theologian. Without attempting a formal definition, it can be said in this context that their function is evidently not to provide expert answers not only because there is no consensus among them but because all of us must look to our own consciences for final decisions Moreover, however important the moral dimension may be, ethics does not simply override the findings and methodologies of other disciplines. One moralist at the conference Father Robert 0. Johann, S.J., spoke of his own "growing awareness of the complexity of the sort of issues we face," and of how unhelpful it is for a professional philosopher to come along with a simple determination that something is right or something is wrong with the idea that this is supposed to be the sole basis for public policy." As he indicated, ethicist's contribution lies elsewhere: "It basically is a matter of bringing out the implications of the choices that we make, and trying to harmonize them with one another."

A separate question about the ethicist's function--important one because it is often a factor in public debate--is the interplay between his role as professional thinker about morals and his position as a representative of institutional teachings. Interest in this question rises from contradictory impulses. The legislator has legitimate reason to inquire whether the views presented by a given moralist accurately represent both the official teachings of, for example, the Lutheran church, Missouri Synod, and a living consensus among the members of that church. Other inquirers--particularly those in-need to question the claims of organized religion or the force of traditional teaching will look for signs to indicate whether the arguments of an institutional spokesman are authentically his own, arrived at after full consideration of the facts and the competing arguments.

The data provided by the Conference are not adequate to spell out the full range of positions held within the Protestant, Roman Catholic, Jewish, and secular humanist traditions. No such enormous task could be attempted in three days. In any case, the ethicists discussed the issue for the most part as professionals in the same field rather than as defenders of church teachings, and they sought to delineate areas of agreement and disagreement on substantive issues, without affixing denominational labels. It was dear from the discussion that individual positions are not always or wholly predictable on the basis of religious affiliation. It should be noted, furthermore, that while the secular humanist tradition was taken into account, and while it was ably represented in the Conference as a whole, none of the members of the ethics panel spoke directly for this viewpoint.

Theists, in their approach to the abortion issue, generally will agree that certain central religious affirmations are relevant: God is the creator of man and the author of life; man is created in the image of God; man is the steward of life and not its complete master. By inculcating an inclusive love of mankind, by teaching that life is the gift of God's providence, religion fosters a reverence for life and a respect for its sacredness which encourage at least an attitude of hesitancy toward the act of abortion. In a historical survey, Professor John T. Noonan of the University of California Law school at Berkeley has pointed out that the early Christians developed their teaching on abortion--which condemned it as "contempt of God"--in sharp conflict with the values of the Greco-Roman world, in which abortion and infanticide were not viewed as serious moral problems. In this the early Christians were influenced in part by their inheritance from Judaism, in part by specific references to abortion in the New Testament, but most of all by the commandment of love, by the implications of the stories of Christ's infancy, and by the special reverence shown toward children by Christ.

Some contemporary theologians will bring into the discussion not only God's original revelation through the scripture, but his continuing presence to mankind through the church, the institution through which, they believe, God's revelation is preserved and made relevant. As one formulation put it, "the human individual is not left in a completely autonomous or obscure situation in the making of decisions relative to the life of mankind." Granting the relevance of other considerations, such a decision "can never disregard God's powerful presence as the subject of rights and as an intelligible communicator with man. Some theists hold, however, that the scriptural data are not in themselves conclusive even for believers; and, further, that neither revelation nor the authority of the church can properly be adduced in the debate on law. These ethicists rely instead on rational analysis which attempts to determine what the act of abortion means. Out of these efforts rises the dispute over the value to be assigned a fetus.

On the basis of the data now available, the ethicists who met at the conference felt they could only conclude that human life begins at conception, or no later than that point a few days later ("blastocyst") when the question of whether one or more persons will be produced has been irreversibly settled. They offered this, as one participant put it, "as a working hypothesis only, not as a substantive truth." Some, however, would go further. The Protestant theologian R. Paul Ramsey argued that medical research now supports the position of those who would impute full human dignity even to the nonviable fetus: "Genetics teaches us that we were from the beginning what we essentially still are in every cell and in every ...attribute. Thus...genetics seems to have provided an approximation, from the underside, to the religious belief that there is a soul animating and forming man's bodily being from the very beginning."

Not all ethicists can accept this, however, and the ethics panel's statement of consensus framed its conclusion more modestly: "The fetus, therefore, at least from blastocyst, deserves respect as human fetal life." For clarification of the significance of this statement, two observations are in order.

First, the statement is essentially a philosophical conclusion from biological knowledge. On the basis of the scientists' finding that human development is a single continuous process from the fertilization of the ovum to the achievement of adult personhood, the argument concludes that it would be arbitrary and irrational to choose a given point in the continuum (whether the detection of a fetal heartbeat, or "quickening," or viability, or birth) and assign it as the beginning of human life. Professor Noonan interprets the findings of genetics to mean that "this being in the uterus shares in the same essential characteristics that make us able to reason. It is only different from you and me in that it has not realized a number of its potentialities. We are all on our way to being human." From this, it follows that the fetus "shares of our humanity [and] we destroy our humanity, we destroy the basis for our rational concern for others in our society when we say we can kill this being in order to solve some other pressing problem that is less than the demand for someone else's life."

The second comment to be made about the ethicists' state- ment, however, moves in another direction--or, rather, in several others. Some ethicists who would subscribe to the statement would not find in it a sufficient guide for personal conduct or public policy with regard to abortion. In the phrasing, "the fetus...deserves respect as human fetal life," some will grant greater significance than others to the qualifying word "fetal."

At least in theory, an adherent of the Roman Catholic tradition, as well as those of other traditions, can admit a different status in life outside the womb in comparison with life in the very first weeks of pregnancy. Father Richard A. McCormick, S.J., has written of a "tenable and respectable theory" preferred by a "notable number of [Catholic) philosophers and theologians" which holds that the soul is not infused at conception but rather at some later point, perhaps when the body develops recognizably human characteristics. The Catholic Church, he points out, has never settled the theoretical question definitively; "indeed, it is perhaps questionable if this is within her competence." In practice, however, official Catholic policy forbids abortion at any point, both because in the absence of certainty the presumption must be that the fetus is a human person and because, even if the presumption is false, the embryo (in the words of Father Robert F. Drinan, S.J.) "constitutes the necessary material for the infusion of a soul."

Ethicists of other traditions, however, may interpret "human fetal life" differently, not only at the speculative level but the practical one. In the earliest period, some see the conceptus as a genetic package, to be respected for its potentialities but not to be equated with fully human life. Others will make distinctions between the few-week-old fetus and the viable fetus. Still others, while not contesting the argument about continuity and without attempting distinctions between the various stages of fetal life, will question whether the logic of the argument can be accepted as the single controlling principle governing every concrete instance apart from all considerations of circumstance, motive, and consequence. This last approach challenges the assumption that an absolute moral rule can be formulated which will adequately respect the particularities of every concrete instance to which it will be applied. It calls instead for a weighing of the values that may be in conflict in a given case.

From these varying interpretations of "human fetal life" flow corresponding practical conclusions. The ethicists in this grouping would decline to accept the classification of every abortion as belonging to the species of homicide, much less murder. They would agree that reasons may be offered for suspending the right of the fetus to be born, but also that such reasons have the burden of proof. Some would sanction only abortions directed to the health of the mothcr. Others would permit abortion on more broadly defined grounds: rape, incest, the possibility of a defective child, the unwed woman, and harsh economic and social conditions.

No attempt will be made here to fully define a typical or representative position of the secular humanist. Obviously, however, he will not derive his views on the sanctity of life from revelation. He may well be unimpressed by any argument which denies a qualitative difference between the fetus and the newborn life, regarding the argument as rationalistic rather than reasonable. whereas the increasing prevalence of abortion and its acceptance by significant numbers of people as "legitimate" may be seen by the theist as a mark of moral decline, the humanist may choose to understand the same phenomenon as the result of a process of discovery, an elimination of restrictive taboos. Wider acceptance of abortion, rather than indicating a lack of reverence for life, may seem to him to demonstrate new respect for the quality of life and new willingness to lessen needless, meaningless physical and spiritual suffering. The humanist's ethical system is likely to be influenced both by pragmatism, a morality of consequences, and by cultural relativism, which grants validity but not absolute or universal value to the actual operating code of a society in a given time and place.

All this does not mean that the secular humanist would sanction a given abortion without regard to the circumstances or the reasons offered. At least some, however, find no serious ethical problem with abortion, since they believe that human- ness is 'an achievement not an endowment," and thus is present only when the socialization process has begun outside the womb. Most secular humanists regard the present abortion laws of most states as too restrictive; some would make abortion a matter of entirely private decision by the people involved; others would still have it subject to some legal regulation.

Views such as these, it should be noted, are not confined to secular humanists. Elements within liberal Protestantism and Reform and Conservative Judaism may share all or some of the secular humanist views, just as Protestants--notably Professor Ramsey and Karl Barth--defend positions popularly identified with the Roman Catholic Church. The official Catholic position is not so simple, so rigid, or so monolithic as is commonly thought. Cultural relativism was accepted as morally relevant to the abortion question by at least one Catholic theologian. One ought not to suggest that the Catholic Church's teaching is about to change in a substantive way; it is clear, however, that the teaching is susceptible of gradual development through a process of refinement. In discussion of a case history presented at the Conference, Father Johann remarked in passing: "The question I pose very seriously for the Catholic moralist is that we consider and...try to understand at least what is behind the perception of so many people ...where dealing in particular with the fetus is felt, experienced, perceived as being something different from dealing with an infant." Father Johann was here calling for theological reflection on the social facts. Others have asked Catholic moralists to speculate on the possible implications for theology of medical research indicating that a far greater proportion of fertilized ova are destroyed through natural process than had previously been known.

On the other hand, other medical advances tend to reinforce the "natural-law" position shared by most Roman Catholic moralists and some Protestants. They argue that the shifting point in time of viability suggest the arbitrariness of selecting any fixed point within the continuum of development which can sensibly be defined as the beginning of humanity. Viability has been one of the most popular methods of establishing humanity. If it can move around in time through medical developments, we are, according to this argument, basing our judgment on extraneous factors which will change. Therefore, one clear-cut ethical position of evident relevance to the political problem afirms that (1) the product of conception is from its heginning a truly human person; (2) the direct taking of innocent human life is always wrong. (One exception is admitted by some: direct abortion to save the mother's life.) In political terms, the position states that any society which grants to itself or to individuals license to override the inviolable right of life of any person, including an unborn child, has radically exceeded its competence and violated its own integrity. This ethical conclusion is properly associated with the Roman Catholic Church, but is by no means confined to Catholics and does not derive from Catholic theology. Further, it is evidently not only an inherited and unexamined hypothesis but can be a matter of reasored conviction for its adherents.

The reasons offered for rejecting this approach are many and various. To many the arguments underlying it, however logical, are arid and unreal, contrary to the common testimony of mankind. If the fetus is to be defined, these critics believe, it would be reasonable to affirm that "essentially" it may be regarded as a part of the woman's body; or, even if a separate entity, as a coherent system of unrealized capacities rather than as a person.

Other critics of the natural-law approach believe that regardless of the status of the fetus, the rights assigned to it should not be automatically regarded as absolute, superior to all the other rights and values which may be present in the special circumstances which give rise to requests for abortion. Among those who believe abortion is sometimes a moral option (or a moral imperative), there are obviously degrees of permissiveness deriving from their differing valuations of the fetus, the possible consequences of abortion, and the reasons given to justify abortion. But it seems possible to risk a general statement that ethicists generally regard abortion as an action of such great seriousness as to require correspondingly grave reasons. Concluding a paper which was in part a critique of the Roman Catholic approach and in part a detailed examination of a particular case, Professor James M. Gustafson of Yale University Divinity School, wrote: "As the morally conscientious soldier fighting in a particular war is convinced that life can and ought to be taken, 'justly' but also 'mournfully,' so the moralists can be convinced that the defenseless fetus can be taken, less justly but more mournfully."

Morals and Law

All of this has to do with the morality of abortion. Yet it Is recognized that law and morality are not identical: not every "sin' should be made "crime." It is also recognized that within our pluralistic society some see abortion as the taking of life, and some do not. The great question is how to bring these differences to terms in public policy, how to establish priorities among competing values. There are a number of considerations for those whose central concern is morals, theology, and ethics.

One possibility would be to say that if there are widespread, conscientiously held differences over what is a "sin" and what is a "crime," we should not legislate concerning "sin." Some would be emphatic in their rejection of coercive policies on matters of morals. They would place overwhelming emphasis on the right of individual decision. Some go along with this hypothesis partly, but cannot accept it when it comes to abortion because in their view there is an innocent third party--the fetus--involved. That is what makes this issue substantially different for them than, say, the issue of contraception. Therefore, for them abortion is a proper subject for legislation, even though every "vice" is not.

Apart from this, many would stress the need for emphasis on respect for human life as a condition for community. This immediately raises the question of whether the law teaches, and specifically whether a law which is widely defied has an educative, perhaps even inspirational, role nonetheless. Some would argue that it does not. The assumption that the law does teach underlines the position of those who would prefer that the law withdraw rather than justify abortion in certain instances. Others would disagree with this, arguing that a law which says that an abortion "may" be performed in certain instances is in no way saying that it "must" be performed in those instances, or even that it "should" be performed. This argument, however, does not satisfy many of those who believe in the law's moral force. As one conferee put it, "I think there is a little difficulty with abortion, in the sense that in a society that does license it, it does affect the quality of life in that society and the values of the society. If you take the corresponding example, say, of capital punishment--whether it is tolerated or approved does affect the society. Just putting it in terms of 'may' does not quite obviate the problem." In this view, there is a moral dimension to the law, beyond its efficiency; the law defines "public morality." There is also, however, the ethical consideration of equality and freedom, and in this connection it cannot be ignored that under existing circumstances in our society the option of abortion--either within or outside the law--is less readily available to some groups-than to others. This is an ethical consideration regardless of one's views on the morality of abortion. As one participant put it: "This comes to the question of the equality of the rich and educated with the poor and uneducated, so that we make available to both equally the opportunity to sin, if you will. We have to consider the unfairness of giving the rich a monopoly on the opportunity to sin, if we consider this a sin. The question is the opportunity for doing well or doing ill, whether or not the whole business of abortion is well or ill. This is, I think, a serious ethical as well as a political problem."

There are the ethical considerations regarding not just abortion per se, but also the socioeconomic conditions and the problems of mental and physical health which cause a woman to seek an abortion. There are a number of ways of looking at this wider framework. It is sometimes argued that those who feel strongly about the immorality of abortion should address themselves less to the question of whether the law protects their position, and more to the conditions which cause people to want abortions. Many who are against permitting abortions would say that rather than extend permission for getting rid of unwanted children, we ought to extend the resources of our society to take care of those children. Some express concern that to the extent the moral pressure against abortion is relaxed, so will the incentives to relieve conditions which lead to abortions.

The problem with these approaches, for others, is that they do not provide an answer for those who, right now, find themselves in conditions in which they can see no alternative but abortion. In this view, it is unjust to suggest to these people that they cannot exercise that option now, in the interest of providing some future generation with other alternatives.

There is still another consideration when it comes to relat- ing morality to public policy', and that is the possibility that no matter how desirable or undesirable such a relationship might be, at Some point it simply will no longer be feasible. There are som,e, among them Professor Ramsey, who believe that through legal developments or medical advances, particularly if an abortifacient pill becomes widely available, abortion will infact 'revert to the status of a private issue. "Because abortion soon will be a matter for private personal choice," Professor Ramsey has written, "the churches and anyone else concerned with the moral ethics of this civilization ought to know that even now it is the morality of acts of abortion with which they should be chiefly concerned-not with proposed public policies that would use abortion law as an interim solution." "I suggest," Professor Ramsey has also written, "that those among who believe that morally abortion is, or sometimes is, a species of the sin of murder might be able to distinguish this from any conclusion to the question whether such abortion ought to be defined as a crime in the penal code."

Chapter 9-The Lawyer's Perspective