November 3, 2024

By Stephen Stofka

This week’s letter is about the principles and history of the debate on abortion, an issue that could be pivotal for Democrats in this week’s election results. Like many contentious policies, many of us have strong opinions on the subject. We have identified the central principle of the issue and brook no compromise on that principle. Such issues generate persistent conflict because we identify different principles and construct incompatible resolutions. The aim of this essay is not to change anyone’s mind on the topic because I don’t think that is possible.

Many laws banning abortion were passed at a time when women had no autonomy – not the right to own property or vote. They were subjects of men. Their chief function was to support and aid men, to bear and rear the offspring of men. To be subject to this demeaning legacy once again deeply offends many women.

The laws and religious doctrines on abortion were all created by men who showed more concern for their offspring than the women who bore that offspring. Greek philosophers and early Church fathers formulated their speculations and doctrines without any knowledge of genetics or embryology. Central to their debate on the matter was the question: when does a fetus become a human and acquire some guarantee of life in a society? The Greek philosopher Aristotle reasoned that all living things had a soul. “The soul is the cause and source of the living body,” he wrote, so that what distinguishes the living from the non-living was ensoulment, acquiring the presence of a soul. What distinguished human beings from other living things was the development of a rational soul within a woman’s womb, but Aristotle was unclear on the timing of that transition.

For early Church fathers, the bible did not resolve the question. Many people think that the Bible specifies the quickening when the fetus first stirs in the womb. However, the word quickening in the Bible is an animating event, not a specific time in gestation. The Bible gives no direct timeline when the soul enters the body. If the Bible is the word of God, as some believe, then God is concerned with many issues but not ensoulment or abortion.

Jerome of Stridon (c. 344 – 420) was an early Christian priest and historian who first translated the Bible into Latin. He professed a belief or doctrine called creationism. At conception, God created a new soul for each person. In Summa Theologica, the influential Catholic philosopher Thomas Aquinas (1225 – 1274) reiterated that doctrine. Aquinas also reacquainted Christian readers in Europe with the recently “rediscovered” works of Aristotle. In de Potentia, he wrote about Aristotle’s distinction between a primitive vegetal soul and a rational soul. During the Renaissance these philosophical speculations provoked controversy in the Church which Pope Pius IX resolved in 1869 with an encyclical declaring that ensoulment happened at conception.

Many 19^th century state laws that ban abortion are based on the belief contained in that encyclical. The resulting policies treated an embryo’s life as though the embryo were human. Texas is one of 13 states that ban abortion outright. All of the former Confederate states effectively ban abortion, either outright or by imposing severe gestational limits when many women may not know they are pregnant. Before Jane Roe won her suit against Texas in the Supreme Court in 1973, the Texas penal code governing abortion was based on Texas laws passed beginning in 1854, when blacks and women were excluded from voting. Blacks were regarded as chattel to be bought and sold like farm animals. Few women could own property, and none could vote.

In Roe v. Wade, the Supreme Court established a balancing of state interests between “protecting the health of pregnant women and the ‘potentiality of human life’” (Oyez link here). That balance changes during the progression of a pregnancy. Jane Roe claimed a right to privacy inherent in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments but the court’s decision founded its decision on a woman’s right to privacy implied in the 14^th Amendment. The Roe opinion placed bounds on a state’s interest that were loosened during the term of pregnancy:

“In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.”

At that time, a fetus was not viable until the 26^th week, the end of the second trimester. Medical knowledge and technical development have lowered the threshold of fetal viability to 23 or 24 weeks in developed countries.

In the 2022 Dobbs v Jackson opinion, the court’s majority overturned the precedent established in Roe and a subsequent case called Planned Parenthood v. Casey.  In Dobbs, the majority found that the only implicit rights – not those expressly stated in the Constitution – that any American has are those “rooted in the Nation’s history and tradition”  and necessary to the “concept of ordered liberty” (text of majority opinion here and see notes below on ordered liberty). The phrase is copied from a 1997 Supreme Court decision asserting that the 14^th Amendment did not imply a right to assisted suicide. The circumstances and principles of a person nearing death and living outside a womb bear little resemblance to those of an embryo totally dependent on its mother for its life functions. The balancing test in the court’s Roe decision recognized a state interest in preserving life but imposed bounds on that state interest. In her dissent, Justice Elena Kagan wrote, “Today, the Court discards that balance.” In doing so, the Dobbs opinion discarded the bounds on the power of the state established in Roe.

In the 165 years since the Civil War, the Constitution was reconstructed by the 14^th, 15^th, 17^th, 19^th, 24^th and 26^th Amendments, expanding the democratic franchise from a select few males to most adults. Are women to be governed by laws specific to them in which they had no voice or representation?

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Photo by Alexander Grey on Unsplash

Keywords: abortion, ensoulment, soul, viability, quickening

Ordered liberty is a theme of the conservative 18^th century British politician Edmund Burke. In an age when only a small portion of the population could read, a select elite did the ordering of the liberties of the rest of the citizens.