On May 25, the Republic of Ireland voted to remove the matter of abortion from its constitution. More specifically, the Irish people voted to repeal the Eighth Amendment, which requires the law to give equal protection to pregnant women and their babies. Passed only in 1983, the amendment was widely interpreted as prohibiting abortion in all cases except when the life of the mother was in danger.
The vote in favor of change was a landslide. Many American commentators, both liberal and conservative, proffered a common interpretation: it was a decisive rejection of traditional Catholicism, and an unhesitating step toward modern democratic values. Liberals applauded the Irish for finally coming around, while Catholic conservatives decried their apostasy.
But what if that interpretation isn’t quite right? What if the Irish are trying, as best they can, to deal with real conflicting values raised by the issue of abortion? What if we Americans really can’t see those conflicts because a key aspect of Roe v. Wade still has the imagination of both pro-lifers and pro-choicers in a vice grip? Roe held that the unborn are not “persons” entitled to the full protection of the law. At the same time, the Roe majority opinion indicated that if they were “persons,” the case for legal abortion would “collapse.” So Roe tied the moral and legal legitimacy of abortion to the lack of personhood of the unborn. This conceptual bond has shaped the American debate for the past half-century. It has also constrained any progress in public discussion. I believe the time has come to rethink it.
Pro-choice activists emphasize the need to protect the rights to physical integrity and autonomy of the pregnant woman. What about the rights of the unborn? Since many pro-choice activists follow Roe in viewing the unborn only as potential human persons, they don’t see a real conflict. The right to autonomy and bodily integrity of the actual person—the pregnant woman—clearly trumps. The problem of abortion is dissolved rather than solved.
Pro-life activists flip the script. They see the unborn as equally protectable persons and abortion as wrongful intentional killing. Accordingly, the fact that the unborn resides within and depends upon a particular woman’s body is not morally decisive. Ultimately, in this picture, the woman’s body is nothing more than the mere circumstance of the wrongful killing—it answers the question where the homicide occurs, and perhaps mitigates the woman’s culpability, but it does not change the moral character of the act. This stance also dissolves rather than solves the problem.
But what if the script needs to be tossed out entirely? What if both the following propositions are in fact true: 1) abortion (at least after the possibility of twinning has passed) does involve taking the life of an individual human being, who deserves protection as a person; and 2) that unborn person is in fact completely physically dependent upon the pregnant woman. Growing the unborn person, and delivering her to the wider world, imposes physical burdens on the woman that are both substantial and morally relevant.
And what if the truth of both propositions has only become more apparent to most people in recent years? On the one hand, 3-D ultrasounds have strengthened our perception of the unborn as “one of us,” while on the other, the #MeToo movement has heightened our understanding of the radical vulnerability of women’s bodily integrity.
If we hold these two propositions together, we are going to see abortion as a unique legal and moral problem, because it does not fall neatly under one normative description. The act of abortion can potentially be described as 1) the intentional killing of a human person, which is generally prohibited by law; and 2) the refusal to provide substantial bodily life support to another person, which is generally legally permitted even in circumstances where it is not morally condoned. For example, parents are not legally required to give their children life-saving blood transfusions or organ donations, no matter how trivial their reasons for refusing to do so. The right to bodily integrity is not some recent invention of liberal secularists; it is firmly rooted in Western law.