Let me begin this essay by stating unequivocally that I do not support or advocate for abortion. If a pregnant woman were to ask me for advice I would not counsel abortion unless there wasn't any other viable alternative after ensuring that the woman was aware of the physical and emotional consequences.
Like most political questions, Reproductive Rights has multiple facets. At its core, it is a legal question. Roe v. Wade is legal case law, the new anti-abortion bills in Alabama, Missouri, Utah, etc. are legislative measures trying to create law as is the new Kansas Constitutional Amendment guaranteeing a woman's right to an abortion. Examined solely as a legal question, the question is, "when does the fetus acquire rights, and when do those rights supersede the mother's rights to bodily autonomy?" As a purely legal matter, the answer is arbitrary. This can be clearly seen in the diversity of the new state laws running from Alabama's draconian legislation banning all abortions to Kansas's Constitutional amendment guaranteeing the mother's right to an abortion that run from conception, heartbeat, 6 weeks, 8 weeks, 18 weeks, viability, or birth.
But it also has moral, religious, economic and other dimensions. Most of the arguments on either side are either appeals to authority or emotional appeals. While it is arguable that an emotional reaction to abortion may inform a moral opinion, it has no place in determining a legal question.
That leaves the arguments based on appeals to authority. There are two things that need to be considered in evaluating appeals to authority: first, is the argument valid or a fallacy; and second, if an argument is valid, is it proper to consider the argument is determining a legal question.
Roe v. Wade, whether we agree with the legal reasoning that underlies it or not, is the current legal authority. A legal doctrine called starry decicis is the principle of determining points in litigation according to precedent. As Justice Breyer recently noted, when long established precedent is disturbed it tends to render the legal system unstable. So, as Utah Attorney General Sim Gill has pointed out, the Utah abortion ban is - under starry decisis - unconstitutional on its face. In terms of the law of the United States, this is a valid appeal to authority and it is not only proper to apply, but is binding on all courts in the land.
Although I haven't heard this argument advanced, a legislative appeal to "authority" might claim that a majority of the electorate favors changing the law to some other arbitrary place in a pregnancy. This argument might be valid if, and only if, the underlying premise is true. Unfortunately, the premise is not true as the chart below shows. Using public opinion argues for not disturbing Roe v. Wade.
That brings us to appeals to moral or religious authority. Validity of appeals to moral authority necessarily depend on what the authority is. For a Roman Catholic who believes the Pope is infallible in matters of faith and morals, Pope Francis is an authority, so, to these people, the Catholic Church's position on abortion is a valid appeal to authority. The problem is that only devout Catholics believe the Pope to be infallible, and the vast majority of Americans would reject Pope Francis as an authority. In any appeal to authority, it is a necessary condition that the authority by recognized by both sides of a controversy as a legitimate authority. The same reasoning applies to members of the Church of Jesus Christ of Latter-day Saints who believe their church is led by a living prophet. He is only an authority for those who believe he is a prophet; for people outside the church or for members within the church that have concluded that President Nelson, like others before him, teach his personal prejudices, his authority carries no weight. So any appeal to an individual person, whether a religious leader or not, and irregardless of which side of the question he is on, would fail the validity test if he or she was not seen as an authority by everyone from Atheists to Zoroastrians. No such authority exists.
There are many, especially in the states where the most restrictive new laws are being passed that believe the Christian Bible is the inerrant word of God. This appeal to authority suffers from the same problem as considering the Pope, Mormon Prophet, or the Dali Lama as authorities in that it is not universally recognized as authoritative. But a reliance on the Christian Bible suffers from an additional problem. It does not address the question. The closest it comes is Exodus 21:22-25, which discusses men fighting near a pregnant woman and cause her to miscarry, then "And if there be any mischief, then thou shall give a life for a life..." (LDS KJV) This doesn't describe an abortion, but an act of violence against the woman, and the original Hebrew is so ambiguous as to whether the passage refers to the woman or the fetus that the Greek Septuagint translated it one way and Jerome's Latin Vulgate went the other.
Another potential biblical reference could be interpreted from Numbers 5:11-29, which describes a procedure for cursing a woman suspected of adultery by making her drink "bitter water," a potion made of water and dust from the Tabernacle floor; "When she is made to drink the water that brings a curse and causes bitter suffering, it will enter her, hr abdomen will swell and her womb will miscarry, and she will become a curse>' (Numbers 5:27 NIV) Some have interpreted this a primitive and superstitious method of abortion inflicted on the woman as a punishment.
Each of the above arguments are appeals to religious authority. Even if they were generally found to be authoritative, using these arguments to dispose of the legal question would be improper as such arguments would violate the "establishment" clause of the First Amendment. I don't know of only one moral argument, which I will discuss at the end of this essay. Thus, though a particular individual may believe strongly in a particular authority, these appeals fail both the test of validity and the test of appropriateness to apply to the legal question.
Are there arguments to scientific, economic, ethical or historic authority? Section VI of Roe addresses whether there is historic authority and determines first, the laws that existed in 1973 were relatively recent; and 2 that there is no agreement in the historical record on the question. Even if there was agreement here, appealing to history is an appeal to tradition that lacks validity - just because something has always been done a certain way doesn't make it right. Section VI also considers the ethical authority of both the Hippocratic Oath and the opinion of the American Medical Association, and shows how the AMA's view evolved - which is illustrative of the fallacy of appealing to tradition.
The only scientific argument I can find is an argument that modern techniques are safe enough that the government can allow it in light of its obligation to protect the health and safety of its citizens where the mother is concerned but offers no help in deciding how to answer the arbitrary question of when it should be allowed and when it should not relative to any rights the fetus may have.
The moral argument I mentioned above is an appeal to the values underlying our Constitutional form of government, not strictly a "moral" argument, and which, coincidentally, is endorsed by every religion I have encountered from Confucianism to Native American religions, and is generally accepted by atheists. The value is Liberty; the concept that government should regulate as little as possible and only when necessary, and that moral views should not, in general, be forced upon those who do not share those moral beliefs. This principle is recognized throughout Christianity in Jesus criticism of the Pharisees and His exposition of the Golden Rule in Matthew 7:1-12, which begins with "Judge not that ye be not judged.." and ends with "Do unto others as you would have them do unto you, for this sums up the law and the prophets." (KJV)
The only conclusion that we can draw from this argument is to answer the question, as Roe v. Wade did, that the fetus/child acquires rights at birth. This conclusion is the only one that allows all parties to practice their particular moral beliefs without forcing them on someone else. And, as a side result, is the only one that is supported by near universal religious authority.
To summarize, to answer the arbitrary legal question of when does a fetus obtain rights and when do those rights supersede the mother's right to bodily autonomy the argument of starry decicis is a valid and proper appeal to legal authority, is binding and controls. Appeals to moral authority, with one potential exception, fail the necessary condition test of universal acceptance of authority, and derive from appeals to religious authority - making them improper arguments for making or interpreting the law. Appeals to scientific authority, history/tradition, economics or ethics also fail the necessary condition of universal acceptance as well as being split among differing authorities. The legislative argument that public opinion should control favors the conclusion that rights are acquired at birth, The appeal to the value of Liberty that requires minimal regulation and eschews forcing moral views on others results in a conclusion that rights begin at birth.
This leads to another conclusion: For those who believe they have a moral obligation to eliminate abortion, the correct path is not legislation or litigation, but persuasion, and perhaps creating social structure that support a woman's choice to parent her child.
Like most political questions, Reproductive Rights has multiple facets. At its core, it is a legal question. Roe v. Wade is legal case law, the new anti-abortion bills in Alabama, Missouri, Utah, etc. are legislative measures trying to create law as is the new Kansas Constitutional Amendment guaranteeing a woman's right to an abortion. Examined solely as a legal question, the question is, "when does the fetus acquire rights, and when do those rights supersede the mother's rights to bodily autonomy?" As a purely legal matter, the answer is arbitrary. This can be clearly seen in the diversity of the new state laws running from Alabama's draconian legislation banning all abortions to Kansas's Constitutional amendment guaranteeing the mother's right to an abortion that run from conception, heartbeat, 6 weeks, 8 weeks, 18 weeks, viability, or birth.
But it also has moral, religious, economic and other dimensions. Most of the arguments on either side are either appeals to authority or emotional appeals. While it is arguable that an emotional reaction to abortion may inform a moral opinion, it has no place in determining a legal question.
That leaves the arguments based on appeals to authority. There are two things that need to be considered in evaluating appeals to authority: first, is the argument valid or a fallacy; and second, if an argument is valid, is it proper to consider the argument is determining a legal question.
Roe v. Wade, whether we agree with the legal reasoning that underlies it or not, is the current legal authority. A legal doctrine called starry decicis is the principle of determining points in litigation according to precedent. As Justice Breyer recently noted, when long established precedent is disturbed it tends to render the legal system unstable. So, as Utah Attorney General Sim Gill has pointed out, the Utah abortion ban is - under starry decisis - unconstitutional on its face. In terms of the law of the United States, this is a valid appeal to authority and it is not only proper to apply, but is binding on all courts in the land.
Although I haven't heard this argument advanced, a legislative appeal to "authority" might claim that a majority of the electorate favors changing the law to some other arbitrary place in a pregnancy. This argument might be valid if, and only if, the underlying premise is true. Unfortunately, the premise is not true as the chart below shows. Using public opinion argues for not disturbing Roe v. Wade.
That brings us to appeals to moral or religious authority. Validity of appeals to moral authority necessarily depend on what the authority is. For a Roman Catholic who believes the Pope is infallible in matters of faith and morals, Pope Francis is an authority, so, to these people, the Catholic Church's position on abortion is a valid appeal to authority. The problem is that only devout Catholics believe the Pope to be infallible, and the vast majority of Americans would reject Pope Francis as an authority. In any appeal to authority, it is a necessary condition that the authority by recognized by both sides of a controversy as a legitimate authority. The same reasoning applies to members of the Church of Jesus Christ of Latter-day Saints who believe their church is led by a living prophet. He is only an authority for those who believe he is a prophet; for people outside the church or for members within the church that have concluded that President Nelson, like others before him, teach his personal prejudices, his authority carries no weight. So any appeal to an individual person, whether a religious leader or not, and irregardless of which side of the question he is on, would fail the validity test if he or she was not seen as an authority by everyone from Atheists to Zoroastrians. No such authority exists.
There are many, especially in the states where the most restrictive new laws are being passed that believe the Christian Bible is the inerrant word of God. This appeal to authority suffers from the same problem as considering the Pope, Mormon Prophet, or the Dali Lama as authorities in that it is not universally recognized as authoritative. But a reliance on the Christian Bible suffers from an additional problem. It does not address the question. The closest it comes is Exodus 21:22-25, which discusses men fighting near a pregnant woman and cause her to miscarry, then "And if there be any mischief, then thou shall give a life for a life..." (LDS KJV) This doesn't describe an abortion, but an act of violence against the woman, and the original Hebrew is so ambiguous as to whether the passage refers to the woman or the fetus that the Greek Septuagint translated it one way and Jerome's Latin Vulgate went the other.
Another potential biblical reference could be interpreted from Numbers 5:11-29, which describes a procedure for cursing a woman suspected of adultery by making her drink "bitter water," a potion made of water and dust from the Tabernacle floor; "When she is made to drink the water that brings a curse and causes bitter suffering, it will enter her, hr abdomen will swell and her womb will miscarry, and she will become a curse>' (Numbers 5:27 NIV) Some have interpreted this a primitive and superstitious method of abortion inflicted on the woman as a punishment.
Each of the above arguments are appeals to religious authority. Even if they were generally found to be authoritative, using these arguments to dispose of the legal question would be improper as such arguments would violate the "establishment" clause of the First Amendment. I don't know of only one moral argument, which I will discuss at the end of this essay. Thus, though a particular individual may believe strongly in a particular authority, these appeals fail both the test of validity and the test of appropriateness to apply to the legal question.
Are there arguments to scientific, economic, ethical or historic authority? Section VI of Roe addresses whether there is historic authority and determines first, the laws that existed in 1973 were relatively recent; and 2 that there is no agreement in the historical record on the question. Even if there was agreement here, appealing to history is an appeal to tradition that lacks validity - just because something has always been done a certain way doesn't make it right. Section VI also considers the ethical authority of both the Hippocratic Oath and the opinion of the American Medical Association, and shows how the AMA's view evolved - which is illustrative of the fallacy of appealing to tradition.
The only scientific argument I can find is an argument that modern techniques are safe enough that the government can allow it in light of its obligation to protect the health and safety of its citizens where the mother is concerned but offers no help in deciding how to answer the arbitrary question of when it should be allowed and when it should not relative to any rights the fetus may have.
The moral argument I mentioned above is an appeal to the values underlying our Constitutional form of government, not strictly a "moral" argument, and which, coincidentally, is endorsed by every religion I have encountered from Confucianism to Native American religions, and is generally accepted by atheists. The value is Liberty; the concept that government should regulate as little as possible and only when necessary, and that moral views should not, in general, be forced upon those who do not share those moral beliefs. This principle is recognized throughout Christianity in Jesus criticism of the Pharisees and His exposition of the Golden Rule in Matthew 7:1-12, which begins with "Judge not that ye be not judged.." and ends with "Do unto others as you would have them do unto you, for this sums up the law and the prophets." (KJV)
The only conclusion that we can draw from this argument is to answer the question, as Roe v. Wade did, that the fetus/child acquires rights at birth. This conclusion is the only one that allows all parties to practice their particular moral beliefs without forcing them on someone else. And, as a side result, is the only one that is supported by near universal religious authority.
To summarize, to answer the arbitrary legal question of when does a fetus obtain rights and when do those rights supersede the mother's right to bodily autonomy the argument of starry decicis is a valid and proper appeal to legal authority, is binding and controls. Appeals to moral authority, with one potential exception, fail the necessary condition test of universal acceptance of authority, and derive from appeals to religious authority - making them improper arguments for making or interpreting the law. Appeals to scientific authority, history/tradition, economics or ethics also fail the necessary condition of universal acceptance as well as being split among differing authorities. The legislative argument that public opinion should control favors the conclusion that rights are acquired at birth, The appeal to the value of Liberty that requires minimal regulation and eschews forcing moral views on others results in a conclusion that rights begin at birth.
This leads to another conclusion: For those who believe they have a moral obligation to eliminate abortion, the correct path is not legislation or litigation, but persuasion, and perhaps creating social structure that support a woman's choice to parent her child.
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