Saturday, May 19, 2012

Abortion and Individual Rights - Part 3

In parts one and two, I have established my conviction that abortion is a right guaranteed by the constitution and philosophically validated by the both Declaration of Independence and by the fundamental nature of individual rights, and that it is an issue of when rights, not life, begins. I also applied the principle that “rights begin at birth” to make certain crucial points. How do those conclusions square with so-called “partial-birth,” or late-term, abortion?

Remember definition number 4; "expulsion from the uterus of the products of conception before the fetus is viable." Wikipedia cites sources that define "Partial Birth Abortion" [PBA] as beginning anywhere from 16 weeks of gestation on, including a 1998 Journal of the American Medical Association issue which contained three conflicting articles defining late-term abortion as beginning at somewhere between the 20th and 27th weeks. Though late-term abortion has never been clearly defined, for our purposes we will define it as the point at which the fetus becomes viable. The point of viability varies according to such factors as gender and race, so determining viability is a medical, case-specific issue. These questions are irrelevant to the current discussion.

To begin, let me quote from two different sources about the nature of the procedure called partial-birth abortion, or PBA. The first is from All About Popular Issues, a religious source:

Partial-birth abortion is exactly what the term infers. The baby is partially born before its abortionist-induced termination.

This Dilation and Extraction procedure is called D&X, Intact D&X, and Intrauterine cranial decompression. The public commonly uses the term PBA and Partial-birth Abortions.

The procedure is usually performed during the last trimester of gestation up to the end of the ninth month. The woman's cervix is dilated, and the abortionist grabs the baby's leg with forceps. Then he proceeds to pull the baby into the birth canal. The abortionist then delivers the baby's body, feet first, all but the baby's head. The abortionist inserts a sharp object into the back of the baby's head, removes it, and inserts a vacuum tube through which the brains are sucked out. The head of the baby collapses at this point and allows the aborted baby to be delivered lifelessly.

The second is from the website of National Public Radio, a secular source:

The further along a pregnancy is, the more complicated — and the more controversial — the procedures are for aborting it. Abortions performed after the 20th week of pregnancy typically require that the fetus be dismembered inside the womb so it can be removed without damaging the pregnant woman's cervix. Some gynecologists consider such methods, known as "dilation and evacuation," less than ideal because they can involve substantial blood loss and may increase the risk of lacerating the cervix, potentially undermining the woman's ability to bear children in the future.

Two abortion physicians, one in Ohio and one in California, independently developed variations on the method by extracting the fetus intact. The Ohio physician, Martin Haskell, called his method "dilation and extraction," or D&X. It involved dilating the woman's cervix, then pulling the fetus through it feet first until only the head remained inside. Using scissors or another sharp instrument, the head was then punctured, and the skull compressed, so it, too, could fit through the dilated cervix.

Both the religious and secular views agree: Partial birth abortion involves what is essentially a birth, with just the baby’s head technically “unborn”. If rights begin at birth, does this mean then that the baby has partial rights? But that’s a contradiction in terms, is it not? We can see the complexity introduced by the view that the main issue surrounding abortion is the question of when rights begin. Philosopher Ayn Rand, a staunch supporter of individual rights, understood this dilemma: “One may argue about the later stages of a pregnancy, but the essential issue concerns only the first three months.”

The ethical dilemma posed by PBA can be dramatized further. Republican congressman and presidential candidate Ron Paul, a doctor, tells this story, relayed by Joe Carter via First Things:

On one occasion in the 1960s when abortion was still illegal, I witnessed, while visiting a surgical suite as an OB/GYN resident, the abortion of a fetus that weighed approximately two pounds.

It was placed in a bucket, crying and struggling to breathe, and the medical personnel pretended not to notice.

Soon the crying stopped. This harrowing event forced me to think more seriously about this important issue.

That same day in the OB suite, an early delivery occurred and the infant born was only slightly larger than the one that was just aborted.

But in this room everybody did everything conceivable to save this child’s life. My conclusion that day was that we were overstepping the bounds of morality by picking and choosing who should live and who should die.

These were human lives. There was no consistent moral basis to the value of life under these circumstances.

My granddaughter was born 14 weeks premature. She weighed one pound, 11 ounces at birth; her weight dropping to one pound four ounces shortly thereafter before beginning a slow rebound. Today, she is a healthy nine year-old. Did she have rights at birth? Clearly, the answer is yes, on the premise that rights begin at birth. So, how does my granddaughter have rights, but the two pound product of late-term abortion Ron Paul watched die in a bucket not; the choice of the mother? But, this conflicts with the principle of the unalienability of rights: Rights are not subject to anyone’s choices.

So should abortion be legal in the early stages of a pregnancy, when the fetus in not viable, and banned thereafter? Or, should late-term abortions be forbidden except where the health of the mother and/or fetus is at issue? If the PBA procedure is legally restricted to protect the viable fetus, do we not run into the same issue concerning the principle of the woman's unalienable rights that we discussed in Part 2? No, because the right of the woman to terminate her pregnancy need not be infringed. Nor, however, need the rights of the baby be infringed. Assuming no extenuating circumstances, the issues of the rights of the baby and the rights of the woman diverge into separate issues after viability.

As I said, the nexus of abortion and rights presents the most difficult dilemma for liberty lovers, but again the principle of individual rights leads to the answer. To develop this argument further, let us consider what is meant by "birth." Merriam-Webster defines birth as:

a : the emergence of a new individual from the body of its parent
b : the act or process of bringing forth young from the womb

In the procedure called partial-birth abortion, the fully developed, viable fetus exits the womb, but not yet the body, and is then executed. So, did a birth occur, and rights begin for the fetus, or not? According to line a, the answer is no; to line b, the answer is yes. In a PBA, the infant exits the womb, but not fully the body, so relying only on the term "birth" leaves confdusion, which leads to the next question is: What is viability? Viability is defined as:

capable of developing, growing, and otherwise sustaining life, such as a normal human fetus at 24 weeks of gestation. able to maintain an independent existence; able to live after birth.

Referring back to the paragraphs in my last post, in which I quote from the essay by Ari Armstrong and Diana Hsieh in TOS in which the authors differentiate between fetal dependence and the independence of the newborn infant:

An embryo or fetus in the womb, in contrast, is not an individual. It is a wholly dependent being, contained within and supported by the body of the pregnant woman. The fetus does not act independently to sustain its life, not even on the basic biological level possible to a day-old infant. It does not breathe independently, eat independently, move independently, or even defecate independently. The fetus cannot know or interact with the world outside the womb in any meaningful way. It is not an individual member of society, but rather a part of the pregnant woman. None of this changes until the fetus departs from the woman’s body at birth and thereby becomes an individual human person.

Birth is a radical biological and existential change for the fetus, more significant than any other change over the whole course of life, except death. The newborn infant lives his own life, outside his mother. Although still very needy, he maintains his own biological functions. He breathes his own air, digests his own food, and moves on his own. He can leave his mother, either temporarily or permanently, to be cared for by someone else, and still live and prosper. His mind, although in its nascent stages of development, now enables him to grasp the world and guide his actions. The newborn infant is no longer a dependent being encased in and supported by the body of another; he is a person in his own right, living in a social context.

Considering our definitions of “abortion,” "birth," and “viability,” the question arises: What of a procedure that involves a viable fetus “contained within and supported by the body of the pregnant woman,” but which is capable of being a “newborn infant liv[ing] his own life, outside his mother,” and brought forth from the womb in the process of a late-term abortion? How does that fit with the principle that “rights begin at birth?” Clearly, the dying baby of Ron Paul’s experience is a human being, with full rights deserving of full legal protections. The same should be said of the partially delivered baby described above.

I personally believe that, given the absolute moral nature of individual rights and in view of the facts of partial birth abortion, legal restrictions on late-term abortion as it relates to the infant are rationally and morally justified. In fact, in Rowe v. Wade the Supreme Court upheld the right of states to restrict abortion at the stage of viability. In the early stages, terminating the pregnancy necessarily involves terminating the life of the fetus because of its non-viability. Regardless of anyone’s moral evaluation concerning the procedure, the woman’s right to her own life includes the right to terminate her pregnancy. The decision is hers, and only hers. The idea that life – and thus the right to life – begins at conception is a religious view that has no place in the law of a secular government, the only legitimate type of government. But the idea that the right to life begins at birth necessarily must consider the viable fetus.

And here we see how the principle of individual rights points to a resolution of the question of late-term abortion. If rights begin at birth, then what do we do about the fully formed, healthy child delivered during PBA, prior to the obviously gruesome procedure that ends the abortion with what can only be termed the execution of a baby? Clearly, rights cannot belong and not belong to a person at the same time. The baby is delivered – i.e., born, for all intents and purposes – but for its head. It is undeniably a baby, capable of living solely through the power of its own biological and mental functions, as described above. Unlike the early stages of a pregnancy where there is no chance of survival outside the womb, the child can survive and flourish (leaving aside, for now, the cases of severe abnormalities). Furthermore, technical definitions of "birth" aside, the child has been essentially delivered. It is no longer in the womb. At this point, just prior to the procedure that ends the child’s life, does the baby not possess full rights? Do we split hairs, and say that the head is still in the body, or that the umbilical cord has yet to be cut? Or, do we acknowledge that a birth has occurred, and that rights have commenced? I believe the latter is true.

Put another way, abortion is a matter of terminating the pregnancy, not necessarily a life. In the early stages of a pregnancy, the life of the fetus – a developing, not an actual, human being – ends with the pregnancy. That death is an unavoidable consequence of early term abortions. It is one and the same issue, by its nature – the unalienable rights of the mother. At some point during the pregnancy, to be determined by the scientific facts of reality as regards fetal viability, the abortion issue diverges from the single issue of the rights of the woman. The issue is now dual; the right of the woman to terminate her pregnancy, versus the rights of a newborn child. Neither needs to be violated. The woman may still terminate the pregnancy (though why any woman, having endured most of the pregnancy, and in the absence of any extenuating circumstances such as her or her unborn child's health, would choose to end the pregnancy at this late stage is incomprehensible). However, the fate of the life of the child – now possessing rights - is no longer in her hands or the hands of the abortionist. A woman who inadvertently gets pregnant but who does not want a child at that time has ample opportunity to avert motherhood earlier in the pregnancy. Furthermore, adoption is still an option for her. The protection of the life and rights of the healthy child can and should be mandated by law. In this case, neither the rights of the woman or of the baby are or should be violated, because they do not conflict any more than the rights of mother and day-old child conflict. The fact that the mother might prefer PBA to other options is irrelevant. A fully developed child was born, acquiring rights. If another couple or institution is willing to voluntarily assume the moral and financial responsibility of raising the child, fine. If not, then the responsibility to raise the child is the mother’s, by virtue of the fact that she brought the child into the world. It’s true that a premature infant can require an extended period of expensive care, which the woman may not want to incur or be able to afford. But she let pass the opportunity to terminate the pregnancy earlier in the term, and still has the option to carry to term to avoid the expense. (We’re talking here of voluntary termination, not instances where health issues require early termination, in which case insurance should pick up the tab.)

The more exact way to frame the issue is: Rights begin with the bringing forth from the womb of a viable fetus. Essentially, this does not conflict with the basic principle that rights begin at birth.

Going further, the principle that rights begin at viability raise other questions, of course. For example, what if an emergency situation arises in which the lives of both mother and fetus are threatened, but only one can be saved? In any conflict of that kind, the woman’s rights and life take precedence, unless the woman’s prior instructions explicitly authorize placing the fetus’s life and health above her own.

What about a situation that involves a severely deformed fetus? In the late stages, the woman has already had plenty of time to terminate the pregnancy if she deemed it necessary to her life’s goals. It’s impossible to argue that, absent extenuating circumstances, inducing the almost complete delivery of a fully formed, healthy baby in order to kill it is justified from our unalienable rights perspective. It’s equally hard to make the case that an end run around the principle of viability rights should be allowed, such as an abortionist reverting to the older, more dangerous method of “dilation and evacuation” in which the fetus is killed inside the womb before removal. Yet it is also true, as I can attest to through personal experience involving a close family member, that legitimate reasons relating to the fetus’s health exist that can rationally justify full partial birth abortion. Some fetuses are so severely deformed that they will never be viable or live long, even after birth, and thus will never have rights in any meaningful way. In this extraordinary case: Who decides? This is a legal question that I do not believe can be resolved through any one-size-fits-all statute. Although I’m not a legal scholar, I think the best solution is judicial oversight or third-party certification. A woman seeking a partial birth abortion that involves her wish to end the child’s life for humane reasons could be required to obtain court permission, based upon legal guidelines regarding the baby’s health status and the doctors’ judgement (as well as the mother’s) established by legislative statute. Both the rights of the woman and the rights that I believe the fully formed child acquires during the partial birth procedure prior to aborting the baby’s life would be taken into court consideration in the same way that any contractual dispute would be resolved – by objectively examining the facts. But if viability means being able to survive and thrive on its own, then the right to terminate the life of a non-viable late-term fetus belongs to the woman, in conjunction with the diagnosis by her doctors and possibly with judicial oversight.

This leads me to one final crucial point: Rights, all rights, are inextricably linked by the principles that ground them. Criminalizing abortion – meaning, the voluntary termination of a pregnancy - can and ultimately will have catastrophic consequences for freedom across the board. As with any issue dealing with the rights of the individual, abortion as such is not the central point. For comparison, consider the First Amendment: The central issue is not what is said, but that one can say it. The central point is the role of the government, i.e., the roll of force in human relationships. The acceptance of bad principles will unleash that force in ways never intended by those who embrace it in regard to their own concrete cause. Just as “hate” crimes and “hate” speech laws will, if not reversed, upend freedom of speech and press, so the loss of a woman’s right to control her own body can and will have much wider ramifications. If a government can forbid abortion, then why can’t it also compel abortion? If you think I’m exaggerating, consider the awesome new powers awarded the EPA by the Bush Administration to regulate CO2, and the fact that with every breath a human being takes, 100 times more CO2 is exhaled than was inhaled (See my post Aborting “CO2 Machines”. In China today, the government compels abortion, ostensibly to control population growth. In Germany in the last century, human beings were used for the most hideous medical experiments. Contrary to accepted belief, this was not primarily a result of blind, wanton cruelty, but of a theory that was widely accepted in the early 20th century. That German practice was itself an outgrowth of the eugenics movement, which held that forced sterilization and other techniques could be used on human beings to weed out weak gene lines in order to “perfect” the human race. Eugenics was taken very seriously in America, where leading American intellectuals and public figures, including President Theodore Roosevelt, ascribed to that theory. The flowering of American eugenics had horrifying consequences here. In Germany, that idea was put to work by the Nazi drive to create a master race. These are actual concrete examples of theories and practices that have a crucial principle in common with the misnamed “pro-life” movement…that a woman’s (and thus everyone’s) body is the property of the state. When you accept the “pro-life” position, you accept the principle that the body belongs to the state.

Armstrong and Hsieh elaborate greatly on this point. They show how, for example, the “Personhood” movement – which would legally define personhood as beginning at conception – would open up fertility clinics and their employees and owners to murder charges, ending the in vitro practice vital to couples who can not conceive on their own (page 17). Furthermore, by logical extension, common birth control methods can be banned (page 15) as well as embryonic stem-cell research, research important to the cure for childhood diseases (page 18).

Importantly, Armstrong and Hsieh correctly trace the roots of the anti-abortion rights crusade to religion:

Despite the strategic differences among antiabortion crusaders, the vast majority of them are zealously driven to rewrite American law in accordance with religious assumptions. They seek to ban abortion because they regard the termination of any pregnancy as contrary to God’s will.

Armstrong and Hsieh provide ample evidence for this point, then provide a powerful argument to demonstrate how allowing law based upon religious tenets would ultimately destroy freedom:

However, the antiabortion crusade threatens rights in an even more fundamental way—by demanding laws founded on religious beliefs rather than observable facts. Claims of divine commands, including the supposed “rights” granted by God, are nothing more than arbitrary, baseless assertions: There is no evidence for the existence of a God, let alone for any morally binding edicts from such a being. Any laws based on religious stories and dogmas will necessarily clash with the objectively demonstrable rights of individuals and the laws that properly protect those rights. Consequently, the antiabortion movement, particularly in conjunction with the broader “social conservative” agenda of the religious right, poses a grave threat to all our liberties.

If abortion should be outlawed because some people imagine that God imbues the zygote with the right to life at the moment of conception, then our whole system of laws could be rewritten to reflect popular tenets of Christianity—and individual rights would be systematically violated in the process. For example, if, as the Baptists claim, devout Christians should eschew alcohol, then perhaps alcohol should be banned across America, as happened under Prohibition—rights of property and trade be damned.51 Because Jesus regards lust in the heart as adultery (Matthew 5), perhaps pornography should be banned—a goal Michele Bachmann has already endorsed—even if that violates the rights of contract, expression, and voluntary association between consenting adults.52 Any claimed right to ban activities or goods on religious grounds necessarily clashes with our actual rights of property, contract, and speech.

To carry this argument further – and as a warning to Christian Rightists – inserting the principle that religious tenets may serve as the basis of law means that any religious tenets may serve that purpose, including radical Islam's, which is gaining political power all across the Muslim world. Enlightened Christians understand that the doctrine of separation of church and state serves as a wall of protection for religious freedom. No civil, peaceful society can exist except on the basis of reason. Reason, as Ayn Rand has observed, “is the faculty that identifies and integrates the material provided by man’s senses.” When reason is the basis of law, objective reality – accessible to all - serves as the final arbiter and frame of reference for disagreements and agreements among people. Reality exists independent of man’s mind, and thus each individual must turn outward, observing the demonstrable facts of reality, to make his case. Because reality is absolute, it can serve as the proper basis for resolving disputes. People can then rely upon rational argument and persuasion in dealing with one another.

In a religion-based society, reason takes a back seat to faith – the reliance on feelings. Faith is the turning inward, away from objective reality, which means the rejection of reason and thus reality as the basis for human interaction. No agreement is possible between two or more individuals with differing opinions based upon feelings. In a secular society based upon objective law, neither is a threat to each other, because each has the protected right to his own beliefs. But the mixing of religion and politics – governmental force – enables one individual or faction to impose his beliefs on others, while remaining free from rational validation of his beliefs. How would one convince him of the wrongness of his laws? How does one argue with irrational feelings? How does one settle disputes with political leaders who have turned inward, away from reality, thus abandoning reason? One can’t, which means the only way to settle disputes is through physical force. As Ayn Rand convincingly demonstrates in her essay “Faith and Force, the Destroyers of the Modern World,” faith and force are inextricable corollaries, which is why faith must be kept out of politics and law.

Let anyone expressing an opinion on the legality of abortion, including those opposed to it, understand that only positions based upon rationality – fidelity to reality – are valid. My positions are clearly articulated here and thus open for logical scrutiny and refutation. Contrary opinions must be based upon the same. An argument based upon faith is no argument at all, but an arbitrary assertion and thus unanswerable.

In conclusion, the preservation and protection of individual rights are crucial to the survival of man the individual, and thus to a free, just, and benevolent society, and the abortion issue can not be isolated from this broader context. The nature of individual rights allows full protection of abortion rights. The principle of rights dictates that a woman has unrestricted “pro-choice” rights early in the pregnancy, but at some point revolving around the issue of fetal viability legal restrictions and/or judicial oversight relating to the rights of the newborn baby of some objective kind become appropriate. Those restrictions - whatever they may, as determined by legal scholars and philosophers - are grounded in the nature of late-term abortion and the principle that rights begin with the birth of a viable infant, whether that birth is natural or induced. The restrictions involve the life of the fully viable newborn, not control of the mother’s body. The termination of the pregnancy, for whatever reason, not just health – must be legal throughout a woman’s term of pregnancy. It is her body. But the fully developed, viable newborn should be protected unless saving the child would jeopardize the life or health of the mother or unless the mother instructs the doctors to save the baby even at risk to herself.

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