Looking at Abortion

I was once part of a program called the Public Conversations Project.1 To be honest, I have no idea how they got my name or why they invited me, but I’m glad that they did. It was a fascinating experience. The Public Conversation Project was begun by the philanthropist and family therapist Laura Chasin2 following the murders of two women outside local abortion clinics in the Boston area. Chasin wanted to create an environment in which people could speak truthfully and compassionately about what mattered in their communities without letting differences tear them apart. She and her colleagues turned their research on constructive communication patterns into the Public Conversations Project (of the Family Institute of Cambridge). In this fashion Chasin became a co-facilitator of a multi-year, clandestine dialogue between Boston area pro-choice and pro-life leaders.

When I was invited to join the Project the way the process worked is that three people who were pro-choice and three who were pro-life were gathered together in a room for a “mediated” conversation. No one in the room was told who was pro-choice or pro-life. That would become apparent only on the process of the conversation itself. There were certain ground rules, like no personal attacks, and the mediators would enforce those ground rules for the rest of us.3

I came to realize that people in the pro-life community are as sincere as can be, and that they are animated by the belief that at the moment of conception, a human being with a human spirit has already been created even if, at that point, it is simply a collection of undifferentiated cells. This is not a belief that I share. Consider that about five days after fertilization, a human egg becomes something known as a “blastocyst.” At that stage, the human blastocyst consists of about 70 to 100 cells. For the sake of comparison, there are more than 100,000 cells in the brain of a fly. When an egg is fertilized, it is not yet a human being. When the baby comes out approximately nine months later, just about everyone would agree that it is a human being, albeit a small one. Somewhere in that time period the transformation has occurred.

Regardless, all of the people who were pro-life that I encountered at the Public Conversations Project sincerely believed that a blastocyst was human life at the moment of conception. And if you truly believe that, then I can understand how someone like that would view abortion as a kind of ongoing holocaust, as something they are determined to prevent. In order to do that, however, they have to interfere with the procreative choices of millions of women who became pregnant without wanting to.

The Biblical Argument

Here is an irony that has not been noted often enough: neither the Bible for the Constitution says one word about abortion.  And yet, both of these documents have been used adamantly for both the proposition that abortion should be legal and that it should be outlawed.

There are 613 commandments in the Hebrew Bible,4 and not a single one is about abortion. It would be one thing if abortion were unheard of back in the time of Christ; it was not. These 613 laws are very specific, and include the following examples, among many others:

  • To circumcise the male offspring (Gen. 17:12; Lev. 12:3)
  • To put tzitzit on the corners of clothing (Num. 15:38)
  • To read the Shema in the morning and at night (Deut. 6:7)
  • To recite grace after meals (Deut. 8:10)
  • Not to stand by idly when a human life is in danger (Lev. 19:16)
  • To assist in replacing the load upon a neighbor’s beast (Deut. 22:4)
  • Not to leave a beast, that has fallen down beneath its burden, unaided (Deut. 22:4)
  • Not to afflict an orphan or a widow (Ex. 22:21)
  • Not to wrong the stranger in buying or selling (Ex. 22:20)
  • Not to intermarry with gentiles (Deut. 7:3)
  • That a eunuch shall not marry a daughter of Israel (Deut. 23:2)
  • Not to exclude an Egyptian from the community of Israel for three generations (Deut. 23:8-9)
  • That a man may not divorce his wife concerning whom he has published an “evil report” about her unchastity before marriage (Deut. 22:19)
  • Not to commit incest with one’s mother, father, and a whole host of other people.5 (Lev. 18:7)
  • That a woman shall not have intercourse with a beast (Lev. 18:23)6
  • Not to travel on Shabbat outside the limits of one’s place of residence (Ex. 16:29)
  • Not to eat a worm found in fruit (Lev. 11:41)
  • Not to eat of things that creep upon the earth (Lev. 11:41-42)
  • Not to have intercourse with a woman, in her menstrual period (Lev. 18:19)

If God is that specific about his laws, that obviously begs the question, why not abortion? If so many other things were important to God, why wasn’t it important to him to articulate that one shouldn’t have an abortion, if that is such an important principle?

It wasn’t just God who never said anything about abortion. Neither did Jesus in any of the four Gospels. So this is not a “Jewish” problem. This is a problem with the entirety of Abrahamic thought. And of the Roman empire at the time of Christ.7

Where Does the Opposition to Abortion Come From?

The question of where the opposition to abortion in Christian thought come from, and when, is subject to a surprising amount of disagreement. First of all, it appears that early questions combined the question of whether abortion was a sin with the question of when “ensoulment“ – the moment that a body gains a soul – actually occurs.  Most early Christians believed that this did not happen until “quickening“ – the moment when a pregnant woman starts to feel or perceive fetal movements – and that was apparently the belief of Thomas Aquinas, Pope Innocent III, and Pope Gregory XIV. The Apostolic Constitutions allowed abortion if it was done early enough in pregnancy, but condemned it if the fetus was of human shape and contained a soul.

This does not mean, of course, that abortion wasn’t without controversy even then; it just wasn’t considered a mortal sin. Nevertheless, certain early Christian texts – including the Didache, and the writings of  Clement of Alexandria, Tertullian, and Saint Basil – condemned abortion as a sin, and some of those writings did not distinguish between ordinary and mortal sin. It wasn’t until 1869 that the Catholic Church seemed to take the position that a person acquired their soul at the moment of conception.8

Ambiguities in Textual Interpretation

When believers use the text of the Bible to argue for or against the proposition that abortion is a mortal sin, they quickly run into two problems: first, as already discussed, that the Bible says nothing explicit about abortion; and second, that what can be interpreted to be related to abortion is at odds with other passages. And mostly these passages are distinctly vague. So for example, the following passage has been used to argue that a fetus is truly a living human being and deserves the same protection as any other human being:

At that time Mary got ready and hurried to a town in the hill country of Judea, where she entered Zechariah’s home and greeted Elizabeth. When Elizabeth heard Mary’s greeting, the baby leaped in her womb, and Elizabeth was filled with the Holy Spirit. In a loud voice she exclaimed: “Blessed are you among women, and blessed is the child you will bear! But why am I so favored, that the mother of my Lord should come to me? As soon as the sound of your greeting reached my ears, the baby in my womb leaped for joy.

(NIV, Luke 1:39-44)

Now the problem with using this passage is that it’s not a passage about the holiness of a fetus. It is a passage about the excitement that the future John the Baptist (at that point still inside his mother Elizabeth) feels upon meeting the future Jesus (at that point still inside his mother Mary). It’s about the future relationship between John the Baptist and Jesus, not about the sanctity of fetuses.

Now, another passage which some pro-life advocates have argued establishes the sanctity of life before birth is the following:

Now the word of the LORD came to me saying, “Before I formed you in the womb I knew you, and before you were born I consecrated you; I have appointed you a prophet to the nations.”

(NAS, Jeremiah 1:4-5)

But this is not a passage about the sanctity of fetuses. It is instead a passage about how the Lord has ordained Jeremiah to be a prophet unto nations.

On the other hand, the Bible also contains passages like the one below:

And if men struggle with each other and strike a woman with child so that she has a miscarriage, yet there is no further injury, he shall surely be fined as the woman’s husband may demand of him; and he shall pay as the judges decide. But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot

(NAS, Exodus 21:22-24)

In other words, if someone produces a miscarriage by striking a woman, but there is no further injury, then the only penalty is whatever amount the husband demands. Doesn’t exactly suggest that the authors of the Bible see a fetus as some sacred thing.

The short answer to the question of abortion, then, is that a clear response is not to be found in the text of the Bible itself. You can read into it what you want to, of course, but the actual text provides very little in the way of guidance.

A Very Short Legal History of Abortion in the United States

Abortion has become more a matter subject to legal attention as the capacity to perform abortions has evolved with medical progress. At the time of independence, most of the former colonies applied English common law, permitting abortion up until quickening, around 15 to 20 weeks after conception. At the time, advertising for “abortifacients“ was both common and effective. Contemporary estimates of mid-19th century abortion rates in the United States “suggest between 20–25% of all pregnancies in the United States during that era ended in abortion”, and that there was a shift towards married women getting an abortion.9

In Britain itself, abortions became illegal in 1803. Shortly thereafter, statutes began to be introduced in state legislatures that expanded on the common law. By 1821, for example, Connecticut prohibited apothecaries from selling “poisons” to women for the purpose of inducing an abortion.

Up until the mid-1800s abortion was generally not illegal in the United States. In fact, drugs to induce abortions “were a booming business,” were “advertised in newspapers” and could be “bought from pharmacists, from physicians and even through the mail.”

However, during the mid-1880s the pendulum had swung pretty clearly against abortion. This swing was accelerated by the “Comstock Law,” which was a federal law enacted in 1873 for the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” The Act criminalized usage of the U.S. Postal Service to send certain items, which included erotica, contraceptives, abortifacients, sex toys, personal letters alluding to any sexual content or information, or any information regarding the items already listed. In places like Washington, D.C., where the federal government had direct jurisdiction, the act also made it a misdemeanor to sell, give away, or have in possession any “obscene” publication. The passage of the federal law was followed by the passage of similar laws in a number of the states of the union.

By 1880, most states had banned abortion except to save the life of a woman, and by 1900 procuring or being involved in abortions was a felony in every state.10 Some people have argued that anti-abortion legislation was part of a backlash against the growing movements for suffrage and birth control, and a way for the medical profession to tighten its control over women’s health care.11

Eventually, and quite slowly, the pendulum began to swing back in the other direction.  First, many of the states began repealing their Comstock Laws. Then, in 1967, Colorado became the first state to decriminalize abortion in cases of rape, incest, or in which pregnancy would lead to permanent physical disability of the woman. In 1970, Hawaii became the first state to legalize abortions on the request of the woman. By the end of 1972, a number of states had loosened their abortion restrictions, with a number enacting laws that were similar to what had been enacted in Colorado.

Leading up to Roe v. Wade

Leading up to the landmark decision in Roe v. Wade that established the right to choose an abortion were two other cases that established certain rights with respect to the use of birth control. These are Griswold v. Connecticut, 381 U.S. 479 (1965) and Eisenstadt v. Baird, 405 U.S. 438 (1972). The first of these two cases essentially established that there is a right relative to a married couple to choose its preferred form of birth control, and the second case broadened that right to unmarried persons.12

The Griswold case began as a prosecution under Connecticut’s Comstock Act of 1879, which still made it illegal to use any form of birth control.13 The Griswold case was the result of a pre-planned challenge to the act by the Planned Parenthood League of Connecticut. Estelle Griswold, the Executive Director of PPLC and a Dr. Buxton, who was a licensed physician and a professor at the Yale Medical School opened a birth control clinic in New Haven. They operated from November 1 to November 10, 1961, when appellants were arrested. At the clinic they had given information, instruction, and medical advice to married couples with respect to the best means of preventing conception. The Eisenstadt case was also the result of a pre-planned action. The case began with birth control advocate Bill Baird, whom students at Boston University had petitioned, asking him to challenge a Massachusetts law that prohibited doctors, or anyone else, from providing contraception to people who were not married. So, on April 6, 1967, Baird gave a lecture at Boston University, during which he also gave a condom and a package of over-the-counter contraceptive foam to a female college student, which led to his immediate arrest. Baird was convicted at a bench trial in the Massachusetts Superior Court both for exhibiting contraceptive articles in the course of delivering a lecture on contraception and for giving a package of Emko vaginal foam to a young woman at the close of his address. The case first went before the Massachusetts Supreme Judicial Court, which ruled unanimously that the conviction for exhibiting contraceptives was unconstitutional because it violated Baird’s First Amendment rights; but, by a four-to-three vote, the SJC sustained the conviction for giving away the foam. Commonwealth v. Baird, 355 Mass. 746, 247 N.E.2d 574 (1969). The United States Supreme Court overturned the conviction in a 6-1 decision (from which Rhenquist and Powell abstained because they had not been sworn in yet).

The Court could have decided both the Griswold and the Eisenstadt cases under the Ninth amendment, but it declined to do so. Instead, what the court found was a “penumbra” of rights that derived, by implication, from the Bill of Rights. The Ninth Amendment was considered as a basis for finding this right to privacy – it was singled out specifically by Justice Arthur Goldberg in his concurring opinion – but ultimately that is not the jurisprudence that the court chose to adopt.

The Consequential Abortion Cases

When it comes to the question of abortion itself, there are basically three cases that really define the jurisprudence relative to the question. There are, of course, other cases that have addressed certain aspects of the abortion question, but these are the three that have really moved the question forward in the United States. They are:

  1. Roe v. Wade, 410 U.S 113 (1973)
  2. Planned Parenthood v. Casey, 505 U.S. 883 (1992)
  3. Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016).

Roe. v. Wade

This is the case that established, for the first time in the history of the United State, that there is a constitutional right to choose an abortion.14

By way of background, in June of 1969 Norma McCorvey discovered she was pregnant with her third child. She had been married at 16 into a relationship that quickly became abusive. Both of her three kids had been given up for adoption. McCorvey had been living with her mother in Oklahoma, but upon finding that she was pregnant for a third time, returned to Dallas, Texas, where she had previously been a ward of the state.  Abortion was illegal in Texas except with certain very narrowly drawn exceptions. Because of this, some of her friends advised her to assert falsely that she had been raped in order to obtain a legal abortion. This scheme failed because no police report had ever been filed backing up her allegations, and there was no other evidence of it. McCorvey next attempted to obtain an illegal abortion, but found that the unauthorized facility where she wanted to go for the procedure had already been closed down. McCorvey would eventually give birth.15 But nonetheless, she was referred to attorneys Linda Coffee and Sarah Weddington, who were both attorneys and pro-choice activists. In 1970, Coffee and Weddington filed suit in the United States District Court for the Northern District of Texas on behalf of McCorvey (under the alias Jane Roe). The defendant in the case was Henry Wade, the District Attorney for Dallas County, who was charged with the enforcement of the Texas statute. That same year, a three-judge panel of the District Court, unanimouslydeclared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. In addition, the court relied on Justice Arthur Goldberg‘s concurrence in Griswold v. Connecticut. The court, however, declined to grant an injunction against enforcement of the law.

Adopting the notion of “penumbra” of privacy rights, Justice Harry Blackmun – who had been a Nixon appointee, of all things – found a fundamental right for a woman to choose an abortion, at least in the first trimester of her pregnancy. In his opinion, in which a majority of the other justices concurred, Blackmun spent a good amount of time tracing the legal and cultural history of abortion. Blackmun divided a pregnancy into its three trimesters and found that the following rights attached:

  1. In the first trimester, the decision about whether to abort a fetus must be left to the woman and her physician;
  2. In the second trimester, the state may regulate the abortion procedure “in ways that are reasonably related to maternal health”;
  3. In the third trimester, the state may prohibit abortion (except for the limited circumstances of preservation of the life or health of the mother) as part of the state’s interest in “the potentiality of human life.”

As so many things are in Constitutional jurisprudence, the Court essentially adopted a balancing test where the interests of the mother outweighed the interests of the state in the first trimester, the interests of the state in protecting the baby outweigh the interests of the state in the third trimester, and in the second semester, it’s essentially a draw.

Planned Parenthood v. Casey

Having lost the fight at the center of the abortion debate, the pro-life movement began to nibble around the edges instead, by enacting a number of regulations that restricted the time and manner of abortion in various respects. This led, in 1992, to the challenge that became the case of Planned Parenthood v. Casey, 505 U.S. 883 (1992).

The Casey case involved a challenge to five provisions of the Pennsylvania Abortion Control Act of 1982. The challengers in this case were five abortion clinics and one physician representing himself, as well as a class of physicians who provide abortion services. They sought what is known as “injunctive relief,” which would have prevented any of these provisions from going into effect. The five provisions of the act challenged included the following, four of which were subsequently upheld:

  • A provision that a doctor provide a pregnant woman with certain prescribe information 24 hours prior to the procedure before the woman could give informed consent (upheld in the opinion);
  • A provision requiring a pregnant woman who was also married to notify her husband prior to undergoing an abortion (not upheld);
  • A provision requiring that minors get the consent of at least one parent or guardian prior to getting an abortion (upheld in the opinion);
  • A provision that a woman could receive an abortion in a medical emergency, defined as a situation that “so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function” (upheld in the opinion);
  • A provision imposing certain record keeping on any facility that provide abortion services (upheld in the opinion).

Casey came along at a propitious time for abortion opponents. Liberal justices William Brennan and Thurgood Marshall had retired and been replaced by the far more conservative judges David Souter and Clarence Thomas. A number of abortion opponents had predicted that the court would overturn the Roe v. Wade decision outright. This, however, did not happen.

The court’s opinion in Casey was unusually fractured, with shifting majorities for certain parts of the opinion, as well as lots of concurring and dissenting opinions. And indeed, four justices – Rhenquist, Scalia, Thomas and White – dissented to opine that they would have overturned Roe.16The court’s opinion began with a long discussion of “stare decisis,” or the principle that previous precedents of the Supreme Court are not to be overturned lightly. In effect, this was a defense of the decision not to overturn Roe completely while simultaneously making it substantially more difficult for women to get abortion in states which sought to restrict it.

Ultimately, the court, while proclaiming to maintain the “essential holding” of Roe, changed the analysis in two fundamental ways:

  • First, it changed the “three trimester” framework to a “viability” framework;
  • Second, it added an “undue burden” analysis to the abortion question.

Let’s look in a little more detail what each of these mean.

The Viability Framework

The Roe court, as we have seen, had neatly divided up pregnancy in three equal trimesters. The Casey court substituted the far more pliable target of “viability,” which can become earlier and earlier in a pregnancy as medical science advances.17 At the time of the Casey opinion, viability was usually achieved around 22 to 23 weeks, or well past the normal 13 week first trimester.18

Prior to viability the court found that the state could still show “concern” for fetal development, but it could not impose an “undue burden” on a woman’s fundamental right to choose. After the viability line had been crossed, the state could – as in the third trimester under Roe – promote its interest in the “potentiality of human life” by regulating or proscribing abortion, except “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

The Undue Burden Analysis

The “under burden” analysis adopted by the Supreme Court in Casey was fraught with ambiguity, a reality that led to many confused subsequent decisions and ultimately to 2016’s Hellerstedt decision, which tried to impose a little bit of clarity on the framework. Under the “undue burden” test the question is does a legal restriction have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The court also jettisoned the need for a “strict scrutiny” analysis in determining whether an undue burden existed. As noted by the eminent Constitutional scholar Erwin Chemerinsky, the problem with the joint opinion is that it says both that the state cannot act with the purpose of creating obstacles to abortion and that it can act with the purpose of discouraging abortion and encouraging childbirth.19

Over the subsequent years, the Casey decision was used to justify restrictions on abortion requiring waiting periods before a woman may have an abortion; requiring state mandated counseling; requiring state-mandated ultrasound procedure; requiring abortion clinics to meet the standards of ambulatory surgical centers; requiring women to listen to the fetal heartbeat before an abortion may be performed; requiring doctors to read a prepared script; requiring spousal and parental notification; prohibiting “partial birth” abortions; allowing insurers to refuse to cover abortion; and prohibiting the use of public funds for abortions.

Whole Woman’s Health v. Hellerstedt

From the time of the Casey decision through to 2016, various state legislators in pro-life had jurisdictions had continued to nibble at the ostensibly protected choice right so as to put many abortion clinics and providers out of business. In this effort, they were largely but not universally sustained by the federal courts. Texas was in the forefront of this effort, and in 2013, Texas managed to pass Senate Bill 5 while Rick Perry was still Governor. This was the bill that then state senator Wendy Davis tried to filibuster, and succeeded in preventing the bill’s passage in Texas’ first special session. But Governor Perry called a second special session for July 1st, 2013, and during this session the Republican-led legislature did manage to get the bill passed. The bill included the following restrictions, among others:

  • A ban on abortion at 20 weeks post-fertilization;
  • A requirement that a doctor who performs abortions have admitting privileges at a nearby hospital;
  • A requirement that abortion clinics meet standards of “ambulatory surgical centers” (basically outpatient surgical clinics);
  • A requirement of oversight for any women taking RU-486 or similar abortion pills.

In November of 2013, the requirement that doctors have admitting privileges took effect, reducing the number of abortion clinics in the entire state of Texas from 42 to 19. Whole Woman’s Health, an abortion clinic serving women in San Antonio, McCallen and Fort Worth Texas, challenged that portion of the law that required it to meet the standards of an outpatient surgical clinic, which would have put it too out of business.

In effect, the court stopped the nibbling at the edges. Unlike Roe or Casey, the Hellerstedt decision did not create a new standard of analysis. Instead, it took on the pretext that many of the regulations proposed by anti-choice legislatures are really about a woman’s health. A famous colloquy between Justice Ruth Bader Ginsburg and Texas Solicitor General Scott Keller exposed the lie:

  • JUSTICE GINSBURG: How many women are located over 100 miles from the nearest clinic?
  • MR. KELLER: Justice Ginsburg [the act] provides that percent of Texas women of reproductive age are not within 100 miles of an [ambulatory surgical center]. But that would not include McAllen that got as­applied relief, and it would not include El Paso, where the Santa Teresa, New Mexico facility is.
  • JUSTICE GINSBURG: That’s odd that you point to the New Mexico facility. New Mexico doesn’t have any [ambulatory surgical center] requirement, and it doesn’t have any admitting requirement. So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things. But send them off to New Mexico where they don’t get it either, no admitting privileges, no [ambulatory surgical center]. And that’s perfectly all right. Well, if that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?
  • MR. KELLER: The policy set by Texas is that the standard of care for abortion clinics should rise to the level of [ambulatory surgical center]s for clinics, and admitting privileges for doctors. Texas obviously can’t tell New Mexico how to regulate, but the substantial obstacle inquiry examines whether there is the ability to make the ultimate decision or elect the procedure.
  • JUSTICE GINSBURG: Then why should it count those clinics?

In other words, if Texas were really concerned about the health of its pregnant women seeking abortions, it would not promote them traveling to New Mexico where the health standards for abortion clinics are so much more lax, and then count that as making abortions available for the women of Texas.

This is the kind of thing that abortion opponents have been doing for years, and that the Hellerstedt case indicated that it would no longer tolerate: using some pretextual argument to limit abortions in the name of informed consent or women’s health, when the clear intention is simply to limit abortions.

The Ninth and Tenth Amendments

Before we leave the abortion cases themselves, we should note quickly the existence of the Ninth and Tenth amendments, and how these two amendments could have shaped the debate, but didn’t. First of all, what are the Ninth and Tenth amendments? These amendments state in full:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Ninth Amendment of the United States Constitution

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Tenth Amendment of the United States Constitution

Taken together, these two amendments are part of the discussion of federalism and natural law in American jurisprudence. Questions of federalism concern questions relative to the balance of power between the state and federal governments, and were intrinsic to the arguments that animated the constitutional conventions. The Articles of Confederation which, for those of you who remember your high school civics, preceded the adoption of the Constitution primarily because the balance of power in that document was shifted too strongly to the states. In order to make the union work, and more authoritative federal government was needed, and that’s why the United States Constitution was adopted.

However, the debate didn’t end there. The debate on federalism was very much a part of the adoption of the Bill of Rights, of which the Ninth and Tenth amendments were the last two amendments.

The Ninth amendment can be considered to be asserting the existence of natural law or natural rights. It essentially establishes that there are certain rights that are intrinsic in being a human being – and intrinsic in the notion that we all have “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” – and that these are rights on which the federal government should not intrude. Questions relative to sex and procreation are probably two of the best examples of “natural law” rights and, in a very real sense, it is disappointing that the Supreme Court did not choose this as the basis for concluding that neither the state or federal government could prohibit the choice of women whether or not to terminate a pregnancy.20

Unfortunately, the relative clarity of the Ninth amendment is muddled by the relative ambiguity of the Tenth amendment, which splits up the powers not delegated specifically to the federal government between the state’s and the people, without clarifying how that determination is supposed to be made.21

How this is an Area where Religion Intrudes on Choice

“If you don’t believe in abortions, don’t have one.” This is one of the maxim’s used by people on the pro-choice side that states pretty clearly how they feel that the beliefs of pro-lifers should not interfere with the personal choices of those people who are not opposed to abortion. One can be catholic and pro-life and still choose not to prohibit other people from making that choice. The Kennedy clan would be a good example of a group that generally went in that direction.

On the other hand, if you really believe that the moment of conception is also the moment of ensoulment – and that consequently abortion is “murder” – than I can understand why you would be personally opposed to abortion. The problem for the people on the pro-life side is that this belief – that someone is a human being at the moment of conception – is a belief that is not widely shared by those who are not Evangelicals or deeply Catholic.

These are starkly different views — that an embryo is a human being at the moment of conception or that a woman should have the exclusive right to determine what happens with her body — and given those stark differences, it’s perhaps no surprise that the pro-life and pro-choice positions are not easily mediated.

  1. The Public Conversations Project has since been rebranded as Essential Partners, and it seems to have morphed into more of a clinical group than what it had been.
  2. Laura Chasin was born Laura Spelman Rockefeller in 1936 as part of the famous Rockefeller family. Her patrilineal great-grandfather was Standard Oil’s co-founder John D. Rockefeller and her matrilineal great-grandfather was Frederick H. Billings, a president of Northern Pacific Railway.
  3. The process for dialogue in the Public Conversations Project was a little bit like the process currently used in Marshall Rosenberg’s nonviolent communication.
  4. Technically these are known as “Mitzvah,” and they have been described as commandments and precepts commanded by God himself. The 613 commandments are divided into two categories: 365 negative commandments and 248 positive commandments. According to the Talmud, all moral laws are, or are derived from, divine commandments.
  5. Some of the other people a believer is not allowed to have incest with include one’s father’s wife, one’s sister, one’s father’s wife’s daughter, one’s son’s daughter, one’s daughter’s daughter, one’s daughter, one’s fathers sister, one’s mother’s sister, one’s father’s brothers wife, Not to commit sodomy with one’s father’s brother, one’s son’s wife, one’s brother’s wife, one’s wife’s daughter, the daughter of one’s wife’s son, the daughter of one’s wife’s daughter, and one’s wife’s sister.
  6. Apparently it’s okay for men, however, to have sex with a beast.
  7. According to scholars, abortion, infanticide and child abandonment were not only not prohibited, they were actually permitted under Roman law during the time of Christ. The legal regulation of abortion as existed in the Roman Empire “was designed primarily to protect the rights of fathers rather than rights of embryos.”
  8. In 1869 Pope Pius IX (1869) dropped the distinction between the “fetus animatus” and “fetus inanimatus,” at which point the soul was believed to have entered the pre-embryo at conception.
  9. See James C. Mohr (1978). Abortion in America: The Origins and Evolution of National Policy, pp. 76–82. According to that author, this era saw a marked shift in those who were obtaining abortions. Before the start of the 19th century, most abortions were sought by unmarried women who had become pregnant out of wedlock. Out of 54 abortion cases published in American medical journals between 1839 and 1880, over half were sought by married women, and well over 60% of the married women already had at least one child. The sense that married women were now frequently obtaining abortions worried many conservative physicians, who were almost exclusively men.
  10. There were some exceptions in early abortion law related to protecting a woman’s life or terminating pregnancies arising from rape or incest.
  11. This argument relative to medical professionals wanting to tighten their control over women’s health is made in Our Bodies Our Selves, among other publications.
  12. Technically, both of these cases involve Comstock Laws, which had remained on the books in both Connecticut and Massachusetts, but hadn’t been enforced for many years.
  13. By the 1950s, Massachusetts and Connecticut were the only two states that still had “Comstock” style statutes, although they were essentially never enforced.
  14. This case was decided with the companion case of Doe v. Bolton, 410 U.S. 179 (1973), which was a challenge to the abortion restrictions in the state of Georgia.
  15. In a symbolic victory for the pro-life movement, Norma McCorvey would eventually also become born again, leading her to flip completely on the question of choice.
  16. The reason that Roe was not overturned is that Justice Sandra Day O’Connor ended up voting with the majority.
  17. Viability, it should be noted, is also roughly around the time that “quickening” takes place in the life of a fetus.
  18. The court in Rowe had understood viability to occur at around 28 weeks, which reflects in part, the advances in medical technology in the scant 19 years between the two opinions.
  19. Justices Blackmun and Stevens wrote concurring opinions in which they approved of the plurality’s preservation of Roe and rejection of the spousal notification law. They did not, however, agree with the plurality’s decision to uphold the other three provisions at issue.
  20. Constitutional law professor Erwin Chemerinsky has written that the “The Ninth Amendment is often mentioned in discussions of fundamental rights, especially rights not expressly mentioned in the text of the Constitution.” However, The Supreme Court has rarely invoked the Ninth Amendment. A “notable exception is Griswold v. Connecticut, where Justice Goldberg, in a concurring opinion, reviewed the history of the Ninth Amendment and relied upon it to justify invalidating a law prohibiting use of contraceptives.” The Ninth Amendment generally is “not seen as the source of rights in that rights are not protected under it; there are no Ninth Amendment rights. Rather, the Ninth Amendment is used to provide a textual justification for the Court to protect nontextual rights, such as the right to privacy.” From this perspective, the Ninth Amendment is “not a repository of rights or even a provision that is itself interpreted, but instead is a justification for the Court safeguarding unenumerated liberties.” (See Chemerinsky, Erwin. Constitutional Law: Principles and Policies, Fourth Edition, p. 814).
  21. Again, Constitutional Law professor Erwin Chemerinsky has argued that the “key question about the Tenth Amendment is whether it is a judicially enforceable limit on Congress’s powers; can federal laws be declared unconstitutional as violating this constitutional provision?” Over the course of American history, “the Court has been inconsistent in answering this question and has shifted between two different approaches.” One approach is “that the Tenth Amendment is not a separate constraint on Congress, but rather is simply a reminder that Congress only may legislate if it has authority under the Constitution.” Under this approach, “a federal law never would be found unconstitutional as violating the Tenth Amendment, but it could be invalidated as exceeding the scope of Congress’s powers under Article I of the Constitution or for violating another constitutional provision.” The “alternate approach is that the Tenth Amendment protects state sovereignty from federal intrusion.” Under this approach, the “Tenth Amendment is a key protection of states’ rights and federalism.” The Tenth Amendment “reserves a zone of activity to the states for their exclusive control, and federal laws intruding into this zone should be declared unconstitutional by the courts.” (See Chemerinsky, Erwin. Constitutional Law: Principles and Policies, Fourth Edition, p. 319.)