Is there a middle ground?

IN PAGAN ANTIQUITY it was taken for granted that, except for slaves, people own themselves. Hence everybody was free to dispose of himself as he wanted. Suicide was neither illegal nor thought immoral. It was taken for granted as well that free persons owned whatever they produced and could dispose of it as they wished. Infants were the property of the parents who produced them (more specifically of the paterfamilias, since: familia id est patrimonium) until they became independent adults who owned themselves. Roman law consequently did not regard infanticide by parents as a crime. That norm prevailed throughout the pagan world. (Probably also in the early stages of Jewish development: the proposed sacrifice by Abraham of his son Isaac marked the beginning of the end of human sacrifice and probably of parental infanticide as well.) Infants were the property of their parents, to dispose of as they thought fit. Eo ipso this was the case also for fetuses, although the technology for aborting them was not well developed.

Christianity changed all this. According to Christian belief persons possess but do not own themselves. Rather, people belong to their creator, who alone is entitled to dispose of his creatures. Suicide became a sin-and, until recently, a crime. (Of course, only the unsuccessful attempt was punishable in this world.) Infants no longer are regarded as the product of their parents and owned by them. They are God's creatures. He creates them through the instrumentality of parental intercourse. Parents have a fiduciary duty. It gradually became a crime for them to kill their infants, post partum and, ultimately, in utero as well. For a long time, however, it was not a crime to abort the embryo befor"quickening"ensoulment."

Followers of the Judaeo-Christian tradition still are most numerous and passionate among those who believe abortion to be wrong. On the other hand, most of those who no longer adhere to Judaeo-Christian beliefs do not find abortion to be wrong in principle. They believe that the decision on whether or not to carry the fetus to term belongs entirely to the mother. She has produced the fetus (with indispensable, but minor, male assistance) and therefore owns it and can dispose of it as she can of her own body.

Pro-abortionists usually shrink from infanticide. They argue that the infant is unquestionably alive, unquestionably human, and viable outside the mother, whereas the fetus may not be, The real reason is less intellectually plausible but psychologically more compelling: feticide occurs inside the maternal womb. It kills an entity that no one has seen alive, that is known to exist, but is not directly observed. Infanticide kills a human being that is independently alive. The killing occurs in full view, outside the maternal womb. Infanticide thus mobilizes compassion and solidarity-even horror-far more directly than feticide.

Although within the Judaeo-Christian tradition there are some ways to condone abortion, and on the secular side there are some arguments to oppose it (as well as suicide and infanticide), the theoretical chasm between secularists, who believe that we belong to ourselves, and traditionalists, who believe that we are God's creatures, is unbridgeable. If parents do not own themselves or the fetus, they have no right to dispose of it except within the range prescribed by their creator. If parents own themselves and the fetus is their product, their right to dispose of it can be challenged only when abused in specific ways.

Let me digress to note here that John Locke, despite his strong emphasis on property rights, particularly in one's own product, clung to religious tradition. He did not feel that we own ourselves. Locke wrote: Though man "have an uncontroleable Liberty, to dispose of his Person or Possessions, yet he has not Liberty to destroy himself, or so much as any Creature in his Possession . . . For Men being all the Workmanship . . . of one Sovereign Master . . . they are His Property." A fortiori the killing of innocent human offspring cannot be rightful at any stage, since it belongs to God.

The increasing secularization of Western societies since Locke points toward restoration of the pre-Christian concepts of self-ownership. However, these concepts are modified by contemporary individualism (also largely a Christian heritage, but quite divorced now from religion), which weakens the authority of the paterfamilias, indeed, of the family itself Individualism, secularization, and, not least, the current obsession with equality have endowed infants and children with new rights; but not embryos or even fetuses, whose unborn rights, if any, seem superseded by the individual rights of their mothers.

ANTI-ABORTIONISTS believe that "life begins at conception." This makes sense (indeed, what is aborted if not life?), although it amounts to a somewhat circular definition. Conception is the fertilization of the ovum, which then, attached to the uterine wall, develops into an embryo, according to encoded genes which control its individuality and the stages of its growth. As it develops, the embryo acquires human characteristics, becomes a fetus, and is born as a baby. But these characteristics are yet to come. The embryo is pre-human, relating to the human baby as a larva does to a butterfly.

The embryo's potential to become a human being must not be confused with the actuality: a fertilized chicken egg has the potentiality to become a chicken, but is not a chicken until that potential is actualized. Vegetarians eat eggs but not chickens. Thus, one may well believe that life begins at conception. But the life in question is as yet only potentially human and, at its beginning, pre-human. From a religious viewpoint this may make no difference. Even if only potentially human (or, for that matter, potentially alive), the fertilized ovum is God's creation, not to be disposed of as though parental property. Moreover, according to teleological ideas accepted by most religions, the aim of conception is procreation; we are not to interfere with this divine purpose. (I forgo discussing prescriptive natural law, since, without religion, nature has no prescriptive authority.)

From a secular viewpoint the fact that what is conceived is not, as yet, human life may make a difference. The proposition "life begins at conception" may constitute a secular argument against abortion if one believes that life should not be aborted. However, we routinely slaughter and abort animals. Hence, to oppose abortion on secular grounds, one must believe that life conceived by humans is actually human from conception; or else, that no potentially human life should be aborted. Both these propositions rely on definitions and prescriptions that come close to collapsing what seems a secular argument against abortion into a religious one.

It is the embryo that might be aborted, not what it will, but has not yet, become. If it, as yet, lacks the distinctly human characteristics that might entitle it to social protection on purely secular grounds, one must ask: When does intra-uterine life become human life? What characteristics are distinctively human? One may disagree on the sufficient characteristics. However, there is little disagreement on the necessary ones. Surely these are absent in the first 12 weeks after conception. The embryo has neither a brain nor the neural system which makes sentience possible.

Before sentience the embryo cannot be aware of itself, or of losing a future by not being allowed to develop. Anti-abortionists may argue, nonetheless, that we have no more right to deprive the embryo of its future than we have to deprive an unconscious person of his future. Perhaps. But the embryo (unlike the unconscious person) cannot in any meaningful sense own itself. If it does not belong to God, it belongs to its parents. Only upon acquiring a functioning brain and neural system, after the first trimester, does it become possible, though not yetprobable, for the fetus even to feel pain. At this point the fetus also starts to resemble an embryonic human being. One may allow the embryo to develop further or abort it. However, after the first trimester abortion seems justifiable only by the gravest of reasons, such as danger to the mother; for what is being aborted undeniably resembles a human being to an uncomfortable degree.

After the first trimester, inconvenience to parents hardly seems a grave enough reason for abortion. However, it may not be in the best interest of the fetus to be born. Surely that is the case if the fetus is highly defective, or likely to live a short or abnormally painful life. Parents may, or may not, be willing to bear the burden of a permanently impaired child, which they would have to carry if the fetus is known to be gravely defective. But it is the burden to the child that must be pondered above all. Life is not a good under all circumstances. Thus, when it is likely to be a net burden for the fetus to live after birth, persons who do not adhere to traditional religious beliefs may argue for abortion.

HOWEVER MUCH the motivation derives from religious tradition, the legal prohibition of abortion is not unconstitutional in a secular state. Religion may enjoin us to feed the hungry and to eschew murder. Yet neither welfare nor criminal homicide statutes are unconstitutional-unless no purpose other than catering to religious beliefs can be demonstrated. If laws can be supported by a secular argument, or a secular public interest, religious traditions which may motivate legislators and their supporters are constitutionally irrelevant.

There are rational secular arguments against abortion. For example, one may insist that the fetus is human and abortion therefore homicide; or that life is a good the living are not entitled to withhold from the unborn. Whether these arguments are persuasive matters little. They are rational enough. Other rational arguments independent of religion are available. Hence legislatures were thought constitutionally entitled to prohibit abortionuntil the Supreme Court, in Roe v. Wade, found a right to abortion in the U.S. Constitution, and made state prohibitions unconstitutional.

In Griswold v. Connecticut the Supreme Court had held that a Connecticut law violated a constitutional right to sexual privacy by prohibiting the sale of contraceptives. In Roe the right to abortion was derived from the privacy right found in Griswold. However, the Constitution nowhere mentions a right to privacy, or to sexual privacy, let alone to contraception or abortion. Nor can such rights be logically derived from anything directly articulated in the Constitution. Hence the sexual-privacy right recognized in Griswold admittedly had to be derived from "emanations" of the "penumbrae" (not visible to the naked non-judicial eye) of the Bill of Rights.

The Connecticut law struck down in Griswold (which had not been enforeed for a long time) certainly was, silly. But silliness is not per se unconstitutional. Prohibitions of sodomy, or of prostitution, or of the sale of contraceptives, may strike one as silly, but they are not unconstitutional, if rational arguments for them can be found.

Nobody wants to overturn Griswold and allow states to prohibit the sale of contraceptives. Roe v. Wade, which takes from the states the right to prohibit abortion, is quite another matter, although it rests on the same right to sexual privacy which the Constitution so discreetly fails to mention. Significant groups want to overturn Roe. They might succeed, The possible abrogation of Roe, or its likely erosion, would return to the states the right to deal with abortion in some measure. Enabled to make their own decisions, California and New York, and many other states, are likely to permit abortion. Some states will again prohibit it; but this mainly will stimulate travel.

Permitting abortion does not necessarily mean subsidizing it. There is not much reason for a subsidy. Usually the pregnant woman volunteered for acts and omissions that risked pregnancy and should not ask taxpayers to pay for the consequences. Pregnancy is not a disease. A pregnant woman does not have the moral claim on the public purse that a woman suffering from a disease contracted because of factors beyond her control might have. Further, taxpayers who on moral grounds oppose abortion object to being compelled to subsidize it. To be sure, subsidizing abortion may well save taxpayers' money: if the aborted fetuses had become babies dependent on public welfare, they would cost more than the subsidy used for abortion. However, even if this were so, opponents will oppose the use of their taxes to subsidize it-the financial advantage would not offset the perceived immorality they would be compelled to support.

EMERGENT technological changes may make much of the legal-abortion debate academic. A French drug company has produced an abortifacient pill (RU-486) which makes expulsion of the fertilized ovum cheap and easy and requires little if any medical supervision. As it is perfected the pill could well solve the legal and financial problem for most women who want an abortion in the very early stages of pregnancy,

Currently no American drug company will sell the French drug, for fear of boycotts and lawsuits. Even in France its distribution is still highly restricted. Yet experience suggests that, once a cheap technology is available, its use cannot be prevented for long. The pill will be smuggled in and will become readily available, ultimately to be legalized.

The moral debate is not affected by this technological development. Abortion will remain a moral problem for many, owing to the clash of Christian traditions and current secular attitudes. Yet the moral problem is likely to be felt less. There is not much rational difference between the surgical removal of an extant embryo and the chemical prevention of its development. Yet there is a major difference in perception. Often, ova are expelled naturally even after fertilization. The abortifacient pill may well be seen as simply helping this process along (although morally the intention of the person taking it makes the difference). All this is likely to make for greater acceptability.

THE OVERWHELMING majority of Americans are devoted, in some degree, to religious beliefs in the JudaeoChristian tradition. Yet, most Americans do not believe that abortion should be a crime. This inconsistency will assure continuation of the debate.

A principled and intense minority of Americans think of abortion as murder. Yet the great majority have come to believe, albeit inchoately, that they own and can dispose of their bodies, including fertilized ova and even embryos. At the least they believe the government should not interfere. For this reason it will be impossible to recriminalize abortion, whatever the outcome of current legislative and judicial skirmishes. Americans feel overwhelmingly that the matter should be left to the individual conscience, and that the minority cannot impose their beliefs, however conscientiously held, on the majority. Political parties cannot ignore the handwriting on the wall.

Each of the political parties is split on the issue. Democrats have rallied to the popular "pro-choice" standard. But their traditional constituents include ethnic minorities strongly influenced by religious beliefs. Republicans have courted defeat by opposing the popular view or, worse, waffling. (Their position has a great deal to do with opposition to the improper overreaching of the Supreme Court in Roe v. Wade but is perceived simply as "anti-abortion.") But not all Republicans are willing to go down for the sake of prohibiting abortion. The antiabortionists who urge them to do so hardly serve their own cause.

As Roe v. Wade recedes and states become free to impose their own regulations, they would do well to permit the French pill (which is effective only in the first trimester of pregnancy) and to strongly discourage and regulate later abortions, except in very specific and limited cases, such as danger to the mother. There is no reason for the Federal Government to bear any of the costs-more reason, but perhaps not enough, for the states to do so. There is litTle hope that a rational and practical settlement along these lines can be formalized soon. But it might evolve informally.