Faith in hiding: are there secular grounds for banning abortion?

THE DECLARATION OF INDEPENDENCE asserts our rights to life, liberty, and the pursuit of happiness, but conflicts between these rights are commonplace. The extreme pro-life, anti-abortion position states that if there's a conflict between an embryo's right to life and the liberty of adults, for instance a woman's freedom to terminate pregnancy, life always trumps liberty.

Pro-choice advocates obviously believe otherwise. What, they ask, establishes the overriding value attached to a newly fertilized ovum that requires women to bear the children of rapists, and to possibly sacrifice their health and life opportunities to raise an unwanted child? Why should the continued existence of an insentient group of cells have priority over the interests of a woman?

The pro-life answer--their basic argument against abortion (and embryonic stem cell research)--is straightforward: embryos, babies, children, and adults are all stages of human life. All these stages are equally alive, they all are human, and therefore, the reasoning goes, all have equal worth. But are all stages of human life equally worthy of protection, and if so, why?

This question has particular bite since the right to abortion established by Roe v. Wade is under increasing pressure. The recent Supreme Court decision in Gonzales v. Carhart banning late-term abortion by intact dilation and extraction allows no exception for a woman's health. Why, one wonders, should the manner of a fetus' destruction take priority over an adult's physical safety?

Under Roe v. Wade, laws prohibiting abortion must still allow exceptions for threats to a woman's life, if not her health. Such exceptions implicitly accord more value to a sentient, autonomous individual than the fetus. This is unsurprising, since unless ideology intrudes, we naturally feel more concern for a person with fully developed capacities and a network of established relationships than we do for an entity possessing neither. It isn't difficult to decide between these two very different stages of human life when faced with a stark choice about which should live. The psychological and practical costs of death are simply much higher in one case than the other.

But the question remains whether there are other interests besides the life of the mother that might outweigh the continued existence of the embryo, for instance, her health and her desire not to raise an unwanted child. In the case of stem cells, the interests at stake are the potential medical benefits to millions that might come from research that requires the destruction of embryos. Pro-life forces generally discount such interests, while the pro-choice, pro-research forces believe they count more than the embryo's survival.

SECTARIAN VS. SECULAR JUSTIFICATIONS

When it comes to justifying social policy, for instance on abortion or stem cell research, we can distinguish between sectarian arguments that involve contested worldviews about ultimate reality and secular arguments that don't. The faith-based claim that God endows a newly formed embryo with an immortal soul is sectarian since it invokes a religious worldview that many might not hold in a diverse pluralistic society. The naturalist's claim that there is no such soul is equally contested and equally sectarian. By contrast, the claim that an embryo is a potential autonomous individual is secular, since whatever your view of ultimate reality, it's likely you accept it.

In a pluralistic society such as the United States, only secular claims are allowed, or should be allowed, as direct justifications for laws and policies. Our civic loyalty stems largely from knowing that in policy matters we reach consensus on non-sectarian grounds, so that no particular opinion about ultimate reality rules in matters affecting everybody. It might of course happen that policy lines up with a particular worldview, but in a democratic society the justifications for policy must have an independent secular basis stemming from concerns related to the physical and social reality shared by all.

To allow a sectarian worldview to determine laws and regulations without an independently sufficient secular rationale would violate the First Amendment separation of church and state by permitting a contested understanding of ultimate reality to govern public policy. According to what's become known as the "Lemon test," a constitutionally permissible law has to meet three criteria. In Supreme Court Justice Warren Burger's language from his opinion in Lemon vs. Kurtzman, a statute (1) must "have a secular legislative Purpose," (2) its "principal or primary effect must be one that neither advances nor inhibits religion," and (3) the statute must not foster "an excessive government entanglement with religion."

This means there must be secular reasons to justify anti-abortion policies that hold, in effect, that an embryo's continued existence should trump all other interests short of the mother's life. To be constitutional, legal restrictions on a woman's reproductive choices must be justified on grounds independent of contested worldviews and religions, otherwise the restrictions will unfairly enshrine a particular worldview or religion in public policy.

SECULAR INTUITIONS ABOUT PERSONHOOD AND RIGHTS

The debate about the rights of the embryo is often framed as the question of whether or not it's a person. If it is, then it has all the rights of other persons, including the right to life. Dictionary definitions of "person" include: "a living human" "human," "individual," and "a man, woman, or child." Since a newly fertilized, microscopic human zygote is living and human, then according to at least some of these definitions it counts as a person. But of course this is hotly contested. The substantive issue about personhood is whether the zygote and later stages of the embryo and fetus have the same rights as uncontroversially existing persons. In the context of the abortion debate, the term "person" simply functions as shorthand for "a human entity owed the full set of rights under the Constitution." To assert that the zygote, embryo, or fetus is a person is to assert that it has these rights, which is to assert that all stages of human life should be equally protected under law. This is the principle that strict pro-life advocates are trying to establish.

The current secular consensus, however, is that all stages of human life do not merit equal protection. As mentioned above, it's an uncontroversially easy choice to allow a woman to live, not her fetus, when that choice is forced by a dangerous pregnancy. And of course Roe v. Wade gives later life stages precedence over the beginnings of life, since prospective mothers are free to abort for personal reasons up until the third trimester, subject to various restrictions as determined by states. In most practical and legal contexts, the secular consensus is that the embryo is not a person--it doesn't have the same rights as sentient individuals. If it did, then as constitutional law expert Lawrence Tribe points out in Abortion: The Clash of Absolutes, a host of unpalatable consequences follow, including treating abortion as murder, forcing women to take extraordinary steps to maintain fetal health, outlawing certain forms of contraception, and requiring that all embryos created by in vitro fertilization be implanted and brought to term. Since virtually no one, including pro-life advocates, calls for such measures, the only conclusion to be drawn is that few suppose embryos and sentient individuals are actually morally equivalent.

The consensus giving precedence to later stages of human life exists because ordinary human psychology generates different levels of concern for different stages. We are generally more protective and concerned about an entity that clearly has sentience and self-pertaining interests than something that clearly has neither. The capacity for such concern is a basic human endowment: we are hard-wired to be protective of beings that manifest sentience and self-interest, especially those close to us and those of our species.

Since this shared predisposition is on a par with other instincts related to self and species preservation, it doesn't need external validation from a religious or philosophical worldview. Few suppose we have to justify, on any additional metaphysical basis, our natural impulse to be protective of newborns, children, and adults. Rather, our default concern for their welfare is among the secular, non-religiously grounded benchmarks of what's moral. It sets an objective ethical standard for behavior, such that when someone's welfare is unjustly compromised, for instance by an unprovoked attack or murder, it provokes near universal condemnation. This ethical norm is a function of our shared, secular human psychology, not a contested metaphysics or worldview.

On the other hand, nearly everyone supposes we do have to justify, on some further basis, the claim that we should have the same level of concern for the zygote. Anti-abortion advocates, often religious, are continually engaged in mounting arguments for why that concern is obligatory, and why newly conceived embryos must be given the same rights as later stages of human life. This suggests that the default secular intuition is that it doesn't merit the same concern, or possess the same rights, as do later stages. Pro-life forces are thus going very much against the grain of human psychology by demanding we accord embryos the same moral status as we do beings that we all agree are persons. As societies secularize, it becomes increasingly difficult for religious ideologies to suppress this psychological reality. A recent example is the lifting of the abortion ban in Mexico City, a secular outpost in a deeply Catholic society.

THE AUTONOMY RIGHT VS. THE FETAL RIGHT TO LIFE

An uncontested secular value in our society, one that flows from our innate concern for persons, is the value of personal liberty and autonomy. Whatever their worldview, nearly everyone agrees that, barring certain conditions, babies, children, and adults have constitutional rights to "life, liberty, and the pursuit of happiness." Unless, for instance, we knowingly and voluntarily break the law, we are presumptively entitled to these rights. This, to repeat, is a categorically secular agreement about central human values, since it's affirmed by those holding different religions and worldviews. The constitutional protection of life and liberty, what I'll call the individual's autonomy right, is based not in the will of God but the will of the people.

Pro-life advocates insist that however insentient the embryo, and however much it can't represent its own interests, its right to life has a moral claim on us nearly equivalent to the life of a child or adult (nearly equivalent because they concede a mother's life trumps that of the fetus should a conflict arise). Further--and this is the crucial point--its continuing existence definitively overrides all conflicting personal interests except for the life of the mother. The continuation of life in utero from the moment of conception merits more protection, they say, than the autonomy rights granted under the Constitution to each existing sentient individual, including the right of a woman to end her pregnancy before the third trimester as now protected by Roe v. Wade.

But what's the secular justification for this claim? Since the zygote has no sentience or self-represented interests, its secular value only derives from how adult persons such as ourselves value it on the basis of what we agree are shared, this-world, secular concerns. The only concern that could possibly trump the value of the autonomy rights of uncontroversially existing persons as protected by the Constitution is an opposing concern of at least the same magnitude. But unless one has already decided on other grounds, for instance a religious belief in the soul, that an embryo's existence has greater value than a sentient individual's interests, such concern will not be present.

Existing interests and the persons that embody them are self-declared, actualized, and uncontroversially real for all of us; they directly motivate the secular conviction that human rights are worthy of protection under law. By contrast, the potential interests of a microscopic fertilized egg are just that--potential; and although it exists, it isn't physically or psychologically present to us. Thus a zygote doesn't normally generate moral concern sufficient to rank its survival over the central interests of ourselves or our peers. Indeed, the pro-life claim that the embryo's survival overrides the mother's interests isn't driven by secular, psychologically based moral concern; instead it's driven, typically, by a religious, sectarian claim that the embryo is a person. This is why the pro-life position ultimately runs afoul of church-state separation.

In the case of an unwanted pregnancy, we must weigh the harm of forcing the woman to give birth to an unwanted child against the harm of destroying an embryo. A forced birth is likely a psychologically damaging burden for the mother that could severely limit her life prospects. Destroying the embryo, on the other hand, doesn't destroy a sentient, self-interested being; it doesn't compromise any self-declared or manifest interests; nor does the embryo's destruction inflict harm on the sentient being it would have become, since the capacity to suffer must first exist for harms to be inflicted. Compared to the damage inflicted by a forced birth on the mother's real, actualized life, its destruction is of far less consequence. We intuitively understand this when we judge, uncontroversially, that it is not a human tragedy that a high percentage of fertilized eggs never achieve implantation (up to two-thirds, by some estimates) but are expelled naturally during menstruation.

The claim of the anti-abortion absolutist reverses these judgments. For this person, the value of the embryo's continued existence outweighs the value of the mother's autonomy right, so the harm to the mother of bearing an unwanted child is less than the harm of the embryo's destruction. But to repeat, this reversal of the normally assigned values usually stems from a religious conviction, for instance about the God-given sanctity of human life starting at conception, or that a woman must pay the price for the sin of having sex outside of God-ordained marriage. There's nothing in normal human psychology independent of such religious convictions that could accomplish the reversal. This is to say that there's no obvious secular basis for valuing the continued existence of the embryo over the autonomy of the mother, or if there is, pro-life advocates have yet to articulate it. If they should come up with a secular argument, they face the further task of using it to overturn the widely accepted consensus about abortion codified in Roe v. Wade.

They can, of course, simply declare that fetal life has an intrinsic value that trumps the rights of the mother, but that's not a secular justification, merely a declaration. Without an explicit, independent basis in secular concerns, absolute bans on abortion lack a secular purpose and illicitly advance religion. They therefore violate the First Amendment as expressed in the Lemon test, and so are unconstitutional. (For those wanting a detailed, persuasive exposition of this line of argument, see Peter S. Wenz's book Abortion Rights as Religious Freedom (Temple University Press, 1991). He suggests that the Roe v. Wade decision has a more plausible basis in the First Amendment separation of church and state than it does in the right to privacy.)

PRO-LIFE PERSUASION, AND HOW TO COMBAT IT

Lacking a secular rationale, pro-life forces nevertheless try to marshal apparently secular support for the fetal right to life. One stratagem is to generate moral concern for early stages of human life by playing on their physical similarity to later stages, for instance by displaying images of fetuses that have recognizable human features. A recent innovation in this regard is to force women considering abortion to view ultrasound images of their fetus, as proposed in South Carolina. If such images prompt a sympathetic response in us, we may start to feel on a gut level that to abort a fetus before the third trimester is to kill a baby, and babies, after all, are legally persons. So the superficial appearance of personhood is used to generate person-level moral concern for early stages of pregnancy. It's significant that abortion opponents never carry posters depicting newly conceived embryos, which when magnified look more like buckyballs than people.

Another seemingly secular pro-life ploy is to describe fetal life as "innocent." An innocent life obviously has done nothing to "deserve" death and so must be allowed to live, the implicit logic goes. Of course abortion opponents are trying to trade on the Christian sense of innocence, the opposite of being fallen or sinful, without explicitly saying so. But there's no valid secular sense in which the living are morally inferior to the unborn. Indeed, the unborn aren't yet moral agents to whom we can be compared. All told, the appeal to unborn innocence compared to our sinfulness fails as a valid secular argument for granting the embryo a mandatory right to life. Faith can't hide behind it.

Some argue that abortions should be prohibited in order to protect, among other things, "the mother's fundamental natural intrinsic right to a relationship with her child," as the recently defeated South Dakota abortion ban put it. But this right, although ostensibly the mother's to exercise, is deemed by anti-abortionists to supersede any other interests she might have, whether or not she voluntarily asserts the right. So what sounds like a secular appeal to protecting autonomy is in fact just the opposite. Once a child is born, then yes, the mother-child relationship has an overriding secular priority, but the obligation to maintain that "relationship" from the moment of conception can't be assumed without also assuming that the zygote is the moral equivalent of an uncontroversially existing person. As argued above, that assumption has no plausible secular justification. Our personal priorities can't, and shouldn't, be legislated in abortion statutes without such a justification, since to do so unconstitutionally enshrines a hidden sectarian agenda in public policy. By contrast, leaving the decision to abort (or not) up to those directly involved, as does Roe v. Wade, permits everyone to act according to the worldview of their choice, an important liberty right. This is as it should be since the question of whether or not to abort has no demonstrable secular right answer in all cases. Instead, the answer must depend on how much those involved in the decision value the continued existence of the embryo, weighed against their other interests.

It's possible, perhaps because of pro-life persuasions, that a majority of citizens and their elected representatives might come to feel the same concern for the embryo as they do for actual persons. They might therefore come to believe that it's owed all the rights of personhood, and further that its right to life should trump the autonomy right of the mother, short of killing her. Enacted into law, this would count as nominally secular legislation since no explicitly religious conviction would have been invoked. That it lacks a cogent secular justification would make it vulnerable to challenge, but that wouldn't necessarily prevent it from becoming (bad) law.

This is a depressing prospect for pro-choice advocates, but to reassure ourselves we should remember just how much the strict anti-abortion position conflicts with the basic human psychology that drives secular intuitions about personhood and rights. It's an unlikely prospect that the majority of citizens, properly informed, will ever be persuaded that the continued existence of a microscopic, minutes-old, newly implanted zygote should override the liberty interests of the mother, father, or any other sentient and self-interested party to an abortion decision. But to forestall this eventuality, pro-choice forces must continually keep in the foreground of public awareness the vast objective differences between early stages of life and a sentient human being. They must not permit undeclared religious ideology to distort the priorities set by normal human sympathies.

To this end, pro-choice advocates should also work to keep fundamentalist religious groups and their worldviews from gaining further influence. It is faith-based religious convictions, hidden under seemingly secular rationales, that mostly motivate opposition to abortion. In that regard, naturalism merits consideration as a worldview, one that's friendly to this-world, secular concerns precisely because it asserts that this world is all there is (see for instance "Naturalism vs. Supernaturalism: How to Survive the Culture Wars," the Humanist, May/June 2006). To the extent that naturalism can displace worldviews that mandate equal rights and a pre-eminent value for the embryo, this will help secure a woman's right to choose.

Thomas W. Clark is director of the Center for Naturalism.