The New York Times Abortion Steel Cage Match: Catholic Radical vs. Jewish Progressive
David Shasha
The New York Times Abortion Steel Cage Match: Catholic Radical vs. Jewish Progressive
I am not sure who has cost me more readers this past year: Ross Douthat, Meir Soloveichik, Alana Newhouse, or Bari Weiss.
Or maybe it is all of them in one big Neo-Con White Jewish Supremacy coalition!
It is hard to know for certain.
But I do understand that overkill is sometimes hard to swallow.
As I also understand that speaking truth to power is often a dangerous – and sometimes lethal – business.
In my defense, for whatever it’s worth, it is clear that these Right Wing extremists are engaged in their own form of monomaniacal overkill, and my attempt to counteract their voices is one that is critical to the project of Jewish Humanism, even if others are scared to take them on.
So, whether people want to hear it or not, the primary threat to the Sephardic heritage at present is coming from these Tikvah-allied radicals and their many allies.
It is all one big ball of White Jewish Supremacy wax, that has bled over into the larger Christian radical context that informs the Trumpworld Alt-Right with its stormtrooper Fascist MAGA delusions.
I have presented Tikvah Ross Douthat and his Opus Dei obsessions many times, most recently in an interview he did with the Far Right Witherspoon Institute on the matter of overturning Roe, which is apparently a central tenet of his debased religion:
https://groups.google.com/g/Davidshasha/c/bzD4FL8-73k
In the title of my post, I noted that cleverly tucked into the interview is a thinly-veiled threat of QAnon Trumpist violence if Roe is not overturned:
Instead, I think pro-life disillusionment would mostly manifest itself by feeding into the heightened feeling of alienation that is just a sort of defining feature of conservative politics these days. So you could imagine, you know, a sense of betrayal over abortion contributing to the appeal of certain QAnon-type theories about global elites. I can totally see that happening at some level that is hard to measure in opinion polls. But I think that kind of psycho-political effect is more likely than some sort of immediate, “You have to promise to impeach Kavanaugh if you’re a Republican primary candidate” campaign.
He has just published his latest brief against Abortion, just in time for the SCOTUS case:
https://www.nytimes.com/2021/11/30/opinion/abortion-dobbs-supreme-court.html
The complete article follows this note.
Once again, it is clear that his definition of “life” is not based on rigorously scientific-legal principles, but on a very tendentious understanding of biology that would seek to assert the absolute human viability of the unborn fetus, as if it were an actual human being that could exist on its own outside the womb:
There is no way to seriously deny that abortion is a form of killing. At a less advanced stage of scientific understanding, it was possible to believe that the embryo or fetus was somehow inert or vegetative until so-called quickening, months into pregnancy. But we now know the embryo is not merely a cell with potential, like a sperm or ovum, or a constituent part of human tissue, like a skin cell. Rather, a distinct human organism comes into existence at conception, and every stage of your biological life, from infancy and childhood to middle age and beyond, is part of a single continuous process that began when you were just a zygote.
What is the definition of a “distinct human organism”?
He does not tell us.
Because he cannot seriously tell us.
That human life is a “continuous process” does not answer the legal question.
Though the Jewish tradition will provide an alternative answer, which is most certainly not in agreement with Douthat’s hyper-Falwell Reaganism and its roots in the old Confederacy:
https://www.politico.com/magazine/story/2014/05/religious-right-real-origins-107133/
His argument is a classic form of PILPUL, which assumes facts not agreed upon, and which are then deployed as if they are:
This means that the affirmative case for abortion rights is inherently exceptionalist, demanding a suspension of a principle that prevails in practically every other case. This does not automatically tell against it; exceptions as well as rules are part of law. But it means that there is a burden of proof on the pro-choice side to explain why in this case taking another human life is acceptable, indeed a protected right itself.
It is a very clever Moot Court strategy designed to silence and ultimately vanquish your opponent, by asserting that only you know the actual facts of the matter and that they do not.
It is a form of rhetorical absolutism:
There is no way to seriously deny that abortion is a form of killing.
Unless there is.
And in this case the biological is not the legal.
And the biological “facts” he presents do not prove the absolute human viability of a fetus, as it does not discuss the actual physical development of the embryo in its different stages. For Douthat and the Anti-Abortion contingent there is no distinction made in these biological processes. Because that would undermine their argument.
The biological “definition” of when “life” begins is not at all agreed upon, because if it was then we would all agree that Abortion was murder – which we do not.
Unless we believe in the legality of murder!
And most Americans would agree that Abortion is not murder, because they support the Right to Choose by a decisive majority of some 20%:
We do not legislate by opinion, though it is deeply contemptuous to think that a majority of American support murder.
“Life” is a very complicated word, as we will see in the Jewish legal tradition.
Douthat, like the other religious radicals opposing Abortion, is asserting that the 1973 SCOTUS ruling on Roe is nothing less than a justification of murder, which must perforce be overturned because of basic moral rules.
And, again, this relies on the unproven idea that life begins at conception.
In my recent article on the Tikvah Neo-Con antinomians, I referred to a two-part series, also from Witherspoon, that presents Douthat’s case in a Jewish framework:
https://groups.google.com/g/davidshasha/c/5-o0rL19sxU/m/Cdy88nY5BQAJ
Here are the articles:
https://www.thepublicdiscourse.com/2021/11/79084/
https://www.thepublicdiscourse.com/2021/11/79124/
Jewish Law, without exception, holds that life begins at birth:
https://www.myjewishlearning.com/article/the-beginning-of-life-in-judaism/
I have also presented an excellent article from the journal Zeramim that discusses an important legal ruling by the 18th century Sephardic Sage Rabbi Yehuda ibn Ayyash which permits Abortion:
https://docs.google.com/document/d/1UdaevoTLfXjrkmOHfVfij1CCzBYhK2A_7vKh5aCodUU/edit
Another My Jewish Learning article on mourning a fetus makes the matter crystal clear:
https://www.myjewishlearning.com/article/stillbirth-and-neonatal-death/
The authoritative rabbinical ruling is that the Shiva and Kaddish are not to be performed unless the dead child is at least a month old; meaning that the legal status of “life” is not even at birth, but 30 days later.
There are, however, many different Jewish views on the permissibility of Abortion based on circumstance and context which I will not discuss here, as Douthat has limited the argument to one single point about conception as absolute human viability. Shorn of that point, his argument fully collapses.
In spite of the First Things Jews, none of this changes the essential fact that, according to all Jewish authorities, including the Orthodox, life does not begin at conception.
It is a legal and not a biological category.
Douthat then goes on to muddle his way around the issue of Feminism and Women’s Rights as if he cares, or that it would make any difference to his dogmatic argument. It is here that his callousness fully emerges as a product of that religious nihilism which is so central to Tikvahworld.
But as his initial premise is not deemed valid by Judaism, whatever other ideas he has on the matter are not at all relevant to the legitimacy of Roe.
And then there is Michelle Goldberg:
https://www.nytimes.com/2021/11/29/opinion/abortion-vaccine-mandate.html
Her complete article also follows this note.
She begins with the essential truism that if men got pregnant, Abortion would not be an issue:
Feminists have always known that if men — or at any rate cis men — could get pregnant, abortion would be a nonissue.
She then moves on to COVID vaccine denialism and the vehement opposition to any lockdown measures on the Right, which is based on the right to bodily freedom:
The furious conservative reaction to Covid mitigation measures demonstrates this more than any hypothetical ever could. Many on the right, we can now see, believe it’s tyranny to be told to put something they don’t want on or in their bodies in order to save lives.
Goldberg never mentions Douthat by name, though she does attack our friends at First Things, of which he is one:
https://www.firstthings.com/author/ross-douthat
We will of course recall that First Things is also home to Tikvah stalwarts David Novak, Shalom Carmy, and Meir Soloveichik, among other notable White Jewish Supremacist reactionaries:
https://www.firstthings.com/author/david-novak
https://www.firstthings.com/author/shalom-carmy
https://www.firstthings.com/author/meir-y-soloveichik
It was where Soloveichik and the late Michael Wyschogrod intersected, as they began their atavistic love affair:
https://docs.google.com/document/d/1vkNZusv09KazmHUp3BNcBGIe9TEZEMcKsZXfbBFMm4Q/edit
https://docs.google.com/document/d/1_fs8wonYLfhONdKPKTgFt_aoi6GPoJ2uhDFcWOfKuTk/edit
Indeed, it is also home to Trumpist Senator Mike “Of Course We’re Not a Democracy” Lee:
https://www.firstthings.com/author/mike-lee
Soloveichik and Lee are true Lysol blood brothers:
https://docs.google.com/document/d/1sUvnfXMeduh00CKAuDD30NiRwbD-5Q147YrMHbGs7Q0/edit
As far as COVID vaccine denialism, Goldberg need look no further than to her former NYT colleague Bari Weiss, who has made it a central tenet of her religion:
But in the end, as is the case with Douthat’s spurious use of biology, nothing Goldberg says can change the legal fact. Whether it is about Feminism, Freedom, or Determinism, only the Law ultimately matters. Feelings have nothing to do with it. Justice is blind.
And the Law must be based on our definition of “life” in order to determine whether Abortion is actually murder.
We have seen Judaism’s position on the matter, although this position should not ultimately be relevant to what is in effect a secular system based on precedent and case law.
Douthat not only assumes that the Jewish tradition does not understand what the word “life” means, he just as firmly believes that the Supreme Court which decided Roe does not understand what it means:
Indeed, when I googled Roe and the beginning of life, I was not expecting to find this text of the SCOTUS decision from Justice Blackmun, from the US Council of Catholic Bishops!
"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."[p160] . . . "There has always been strong support for the view that life does not begin until live' birth."[n56] . . .
"Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid.[n59] Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.[n60] The Aristotelian theory of "mediate animation," that held sway through out the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic Dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life from [p161] the moment of conception.[n61] The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process" over time rather than an event, and by new medical techniques such as menstrual extraction, the "morning-after" pill implantation of embryos, artificial insemination, and even artificial wombs."[n62]...
A recent article by University of Texas at Austin (!) Professor Sahotra Sarkar clarifies the matter and rules against Douthat in a quite definitive way:
https://theconversation.com/when-human-life-begins-is-a-question-of-politics-not-biology-165514
The complete article also follows this note.
Here is the gist of his argument:
The overall point is that biology does not determine when human life begins. It is a question that can only be answered by appealing to our values, examining what we take to be human.
And here is his conclusion:
Perhaps biologists of the future will learn more. Until then, when human life begins during fetal developments is a question for philosophers and theologians. And policies based on an answer to that question will remain up to politicians – and judges.
Douthat has already shown us his Opus Dei hand, as he has sought to undermine the current Pope who he deems too liberal, as we saw in his article “Joe Biden’s Catholic Moment”:
https://groups.google.com/g/davidshasha/c/l3si50GRE6E/m/bHicmKlRDgAJ
Here is how he put it there:
Calling a form of religion “liberal” can mean two different things: On the one hand, a theological liberalism, which seeks an evolution in doctrine to adapt to modern needs; on the other, support for policies and parties of the center-left. In practice, though, the two tend to be conjoined: The American Catholic Church as an institution is caught between the two political coalitions, but most prominent Catholic Democrats are liberals in theology and politics alike.
But more than a set of ideas, liberal Catholicism is a culture, recognizable in its institutions and tropes, its iconography and allusions — to Pope John XXIII and Jesuit universities, to the “seamless garment” of Catholic teaching and the “spirit” of the Second Vatican Council, to the works of Thomas Merton and hymns like “On Eagle’s Wings” (which Biden quoted in his victory speech).
And, of course, invocations of Pope Francis. A decade ago it was a commonplace to regard liberal Catholicism as a tradition in decline. Its period of maximal influence, the late 1960s and 1970s, had been an era of institutional crisis for the church, which gave way to the conservative pontificates of John Paul II and Benedict XVI. Conservative Catholics felt that liberal ideas had been tried and failed, liberal Catholics felt that they had been suppressed.
But then Francis gave the liberal tendency new life, reopening controversies that conservatives assumed were closed and tilting the Vatican toward cooperation with the liberal establishment and away from associations with conservatism.
The papacy does not issue political endorsements, but there seems little doubt that many figures in Francis’ inner circle welcome a Biden presidency. When the American bishops’ statement on his inauguration included a stern critique of his position on abortion, there was apparent pushback from the Vatican and explicit pushback from the most Francis-aligned of the American cardinals. So the conservative Catholics who spent the election year arguing that Biden isn’t a Catholic in good standing find themselves (not for the first time) in tacit conflict with their pope.
That conflict belongs to the internal drama of Catholicism. In the internal drama of America, though, liberal Catholicism is an interesting candidate to claim the religious center, to fill the Mainline’s vanished role.
If you wanted to make a case for its prospects and potential influence, you would emphasize three distinctive liberal-Catholic qualities: an abiding institutionalism, in contrast to the pure dissolving individualism of so much American religion; an increasingly multiethnic character, which matches our increasingly diverse republic; and a fervent inclusivity, an anxiety that nobody should feel discriminated against or turned away.
This inclusivity means that liberal Catholicism sometimes seems to capture the universalist aspirations of the church better than its conservative and traditionalist subcultures. The latter are supposed to be for everybody, but at the moment they tend to appeal to distinctive personality types (he said, looking in the mirror) while remaining somewhat alien to the normal run of Americans — with “normal” lately meaning not just anyone who doubts certain of the church’s harder teachings but anyone who doubts the wisdom of a vote for Donald Trump.
In case you were wondering where Douthat stands, his conclusion makes it clear:
Which means that the liberal Catholic worldview is constantly in danger of simply being subsumed into political liberalism, with all religious distinctives shorn away — as Joe Biden’s past pro-life positions have now been entirely subsumed, for instance, by his party’s orthodoxy on abortion. Or alternatively, it’s in danger of being effectively taken over from within by rival forms of faith, like the new progressive orthodoxies that are likely to set our Catholic president’s agenda on the social questions of the day.
And we have seen just how difficult it has been for Douthat, unlike his Christian colleague David Brooks, to accept the current president and discard his predecessor:
https://groups.google.com/g/davidshasha/c/BN3fTcWEOEE/m/guPqF9KfBAAJ
His Sohrab Ahmari interview, enabled by the apparently hapless Ezra Klein, allowed us to get a glimpse of what this Catholic Fascist future will look like:
https://groups.google.com/g/davidshasha/c/s1SxdzmNdfs/m/15mJTdjEAAAJ
Douthat arrogantly states: “In the internal drama of America, though, liberal Catholicism is an interesting candidate to claim the religious center, to fill the Mainline’s vanished role.” It is interesting to see how he definitively presents the matter of Catholic centrality, as if we did not have Religious Liberty in this country.
There are other religions besides his, and those religions are free to practice without his interference!
In the end, we will soon see what the current Opus Dei Federalist Society SCOTUS does with Roe, though it is not looking optimistic.
As for Douthat, it is quite clear where he stands, and how much contempt he has for our American Constitution and its demand for Religious Liberty for all Americans.
He, like all those who believe as he does, is free not to practice Abortion; just the rest of us are free from having his radical Catholic will be imposed on this country. After all, this is not China.
And that means that Jews do not have to become adherents of Evangelical Christianity, as has been the case with the New Jews for Jesus CEO Dennis Prager and others on the White Jewish Supremacy Right:
https://docs.google.com/document/d/1KBR9qfoMfvce-eFyyQqlgWy-6gDOcf6YMwupRKD_8Nw/edit
Religious Liberty does not mean that we need to return to Catholic Spain and the Inquisition, whatever its new guise might be.
David Shasha
The Case Against Abortion
By: Ross Douthat
A striking thing about the American abortion debate is how little abortion itself is actually debated. The sensitivity and intimacy of the issue, the mixed feelings of so many Americans, mean that most politicians and even many pundits really don’t like to talk about it.
The mental habits of polarization, the assumption that the other side is always acting with hidden motives or in bad faith, mean that accusations of hypocrisy or simple evil are more commonplace than direct engagement with the pro-choice or pro-life argument.
And the Supreme Court’s outsize role in abortion policy means that the most politically important arguments are carried on by lawyers arguing constitutional theory, at one remove from the real heart of the debate.
But with the court set this week to hear Dobbs v. Jackson Women’s Health Organization, a direct challenge to Roe v. Wade, it seems worth letting the lawyers handle the meta-arguments and writing about the thing itself. So this essay will offer no political or constitutional analysis. It will simply try to state the pro-life case.
At the core of our legal system, you will find a promise that human beings should be protected from lethal violence. That promise is made in different ways by the Constitution and the Declaration of Independence; it’s there in English common law, the Ten Commandments and the Universal Declaration of Human Rights. We dispute how the promise should be enforced, what penalties should be involved if it is broken and what crimes might deprive someone of the right to life. But the existence of the basic right, and a fundamental duty not to kill, is pretty close to bedrock.
There is no way to seriously deny that abortion is a form of killing. At a less advanced stage of scientific understanding, it was possible to believe that the embryo or fetus was somehow inert or vegetative until so-called quickening, months into pregnancy. But we now know the embryo is not merely a cell with potential, like a sperm or ovum, or a constituent part of human tissue, like a skin cell. Rather, a distinct human organism comes into existence at conception, and every stage of your biological life, from infancy and childhood to middle age and beyond, is part of a single continuous process that began when you were just a zygote.
We know from embryology, in other words, not Scripture or philosophy, that abortion kills a unique member of the species Homo sapiens, an act that in almost every other context is forbidden by the law.
This means that the affirmative case for abortion rights is inherently exceptionalist, demanding a suspension of a principle that prevails in practically every other case. This does not automatically tell against it; exceptions as well as rules are part of law. But it means that there is a burden of proof on the pro-choice side to explain why in this case taking another human life is acceptable, indeed a protected right itself.
One way to clear this threshold would be to identify some quality that makes the unborn different in kind from other forms of human life — adult, infant, geriatric. You need an argument that acknowledges that the embryo is a distinct human organism but draws a credible distinction between human organisms and human persons, between the unborn lives you’ve excluded from the law’s protection and the rest of the human race.
In this kind of pro-choice argument and theory, personhood is often associated with some property that’s acquired well after conception: cognition, reason, self-awareness, the capacity to survive outside the womb. And a version of this idea, that human life is there in utero but human personhood develops later, fits intuitively with how many people react to a photo of an extremely early embryo (It doesn’t look human, does it?) — though less so to a second-trimester fetus, where the physical resemblance to a newborn is more palpable.
But the problem with this position is that it’s hard to identify exactly what property is supposed to do the work of excluding the unborn from the ranks of humans whom it is wrong to kill. If full personhood is somehow rooted in reasoning capacity or self-consciousness, then all manner of adult human beings lack it or lose it at some point or another in their lives. If the capacity for survival and self-direction is essential, then every infant would lack personhood — to say nothing of the premature babies who are unviable without extreme medical interventions but regarded, rightly, as no less human for all that.
At its most rigorous, the organism-but-not-person argument seeks to identify some stage of neurological development that supposedly marks personhood’s arrival — a transition equivalent in reverse to brain death at the end of life. But even setting aside the practical difficulties involved in identifying this point, we draw a legal line at brain death because it’s understood to be irreversible, the moment at which the human organism’s healthy function can never be restored. This is obviously not the case for an embryo on the cusp of higher brain functioning — and if you knew that a brain-dead but otherwise physically healthy person would spontaneously regain consciousness in two weeks, everyone would understand that the caregivers had an obligation to let those processes play out.
Or almost everyone, I should say. There are true rigorists who follow the logic of fetal nonpersonhood toward repugnant conclusions — for instance, that we ought to permit the euthanizing of severely disabled newborns, as the philosopher Peter Singer has argued. This is why abortion opponents have warned of a slippery slope from abortion to infanticide and involuntary euthanasia; as pure logic, the position that unborn human beings aren’t human persons can really tend that way.
But to their credit, only a small minority of abortion-rights supporters are willing to be so ruthlessly consistent. Instead, most people on the pro-choice side are content to leave their rules of personhood a little hazy, and combine them with the second potent argument for abortion rights: namely, that regardless of the precise moral status of unborn human organisms, they cannot enjoy a legal right to life because that would strip away too many rights from women.
A world without legal abortion, in this view, effectively consigns women to second-class citizenship — their ambitions limited, their privacy compromised, their bodies conscripted, their claims to full equality a lie. These kind of arguments often imply that birth is the most relevant milestone for defining legal personhood — not because of anything that happens to the child but because it’s the moment when its life ceases to impinge so dramatically on its mother.
There is a powerful case for some kind of feminism embedded in these claims. The question is whether that case requires abortion itself.
Certain goods that should be common to men and women cannot be achieved, it’s true, if the law simply declares the sexes equal without giving weight to the disproportionate burdens that pregnancy imposes on women. Justice requires redistributing those burdens, through means both traditional and modern — holding men legally and financially responsible for all the children that they father and providing stronger financial and social support for motherhood at every stage.
But does this kind of justice for women require legal indifference to the claims of the unborn? Is it really necessary to found equality for one group of human beings on legal violence toward another, entirely voiceless group?
We have a certain amount of practical evidence that suggests the answer is no. Consider, for instance, that between the early 1980s and the later 2010s the abortion rate in the United States fell by more than half. The reasons for this decline are disputed, but it seems reasonable to assume that it reflects a mix of cultural change, increased contraception use and the effects of anti-abortion legal strategies, which have made abortion somewhat less available in many states, as pro-choice advocates often lament.
If there were an integral and unavoidable relationship between abortion and female equality, you would expect these declines — fewer abortions, diminished abortion access — to track with a general female retreat from education and the workplace. But no such thing has happened: Whether measured by educational attainment, managerial and professional positions, breadwinner status or even political office holding, the status of women has risen in the same America where the pro-life movement has (modestly) gained ground.
Of course, it’s always possible that female advancement would have been even more rapid, the equality of the sexes more fully and perfectly established, if the pro-life movement did not exist. Certainly in the individual female life trajectory, having an abortion rather than a baby can offer economic and educational advantages.
On a collective level, though, it’s also possible that the default to abortion as the solution to an unplanned pregnancy actually discourages other adaptations that would make American life friendlier to women. As Erika Bachiochi wrote recently in National Review, if our society assumes that “abortion is what enables women to participate in the workplace,” then corporations may prefer the abortion default to more substantial accommodations like flexible work schedules and better pay for part-time jobs — relying on the logic of abortion rights, in other words, as a reason not to adapt to the realities of childbearing and motherhood.
At the very least, I think an honest look at the patterns of the past four decades reveals a multitude of different ways to offer women greater opportunities, a multitude of paths to equality and dignity — a multitude of ways to be a feminist, in other words, that do not require yoking its idealistic vision to hundreds of thousands of acts of violence every year.
It’s also true, though, that nothing in all that multitude of policies will lift the irreducible burden of childbearing, the biological realities that simply cannot be redistributed to fathers, governments or adoptive parents. And here, too, a portion of the pro-choice argument is correct: The unique nature of pregnancy means that there has to be some limit on what state or society asks of women and some zone of privacy where the legal system fears to tread.
This is one reason the wisest anti-abortion legislation — and yes, pro-life legislation is not always wise — criminalizes the provision of abortion by third parties, rather than prosecuting the women who seek one. It’s why anti-abortion laws are rightly deemed invasive and abusive when they lead to the investigation of suspicious-seeming miscarriages. It’s why the general principle of legal protection for human life in utero may or must understandably give way in extreme cases, extreme burdens: the conception by rape, the life-threatening pregnancy.
At the same time, though, the pro-choice stress on the burden of the ordinary pregnancy can become detached from the way that actual human beings experience the world. In a famous thought experiment, the philosopher Judith Jarvis Thomson once analogized an unplanned pregnancy to waking up with a famous violinist hooked up to your body, who will die if he’s disconnected before nine months have passed. It’s a vivid science-fiction image but one that only distantly resembles the actual thing that it describes — a new life that usually exists because of a freely chosen sexual encounter, a reproductive experience that if material circumstances were changed might be desired and celebrated, a “disconnection” of the new life that cannot happen without lethal violence and a victim who is not some adult stranger but the woman’s child.
One can accept pro-choice logic, then, insofar as it demands a sphere of female privacy and warns constantly against the potential for abuse, without following that logic all the way to a general right to abort an unborn human life. Indeed, this is how most people approach similar arguments in other contexts. In the name of privacy and civil liberties we impose limits on how the justice system polices and imprisons, and we may celebrate activists who try to curb that system’s manifest abuses. But we don’t (with, yes, some anarchist exceptions) believe that we should remove all legal protections for people’s property or lives.
That removal of protection would be unjust no matter what its consequences, but in reality we know that those consequences would include more crime, more violence and more death. And the anti-abortion side can give the same answer when it’s asked why we can’t be content with doing all the other things that may reduce abortion rates and leaving legal protection out of it: Because while legal restrictions aren’t sufficient to end abortion, there really are a lot of unborn human lives they might protect.
Consider that when the State of Texas put into effect this year a ban on most abortions after about six weeks, the state’s abortions immediately fell by half. I think the Texas law, which tries to evade the requirements of Roe v. Wade and Planned Parenthood v. Casey by using private lawsuits for enforcement, is vulnerable to obvious critiques and liable to be abused. It’s not a model I would ever cite for pro-life legislation.
But that immediate effect, that sharp drop in abortions, is why the pro-life movement makes legal protection its paramount goal.
According to researchers at the University of Texas at Austin, who surveyed the facilities that provide about 93 percent of all abortions in the state, there were 2,149 fewer legal abortions in Texas in the month the law went into effect than in the same month in 2020.
About half that number may end up still taking place, some estimates suggest, many of them in other states. But that still means that in a matter of months, more than a thousand human beings will exist as legal persons, rights-bearing Texans — despite still being helpless, unreasoning and utterly dependent — who would not have existed had this law not given them protection.
But, in fact, they exist already. They existed, at our mercy, all along.
From The New York Times, November 30, 2021
What ‘My Body, My Choice’ Means to the Right
By: Michelle Goldberg
Here’s a bit of evidence that we live in a simulation controlled by someone with a perverse sense of humor: At the very moment that Roe v. Wade could be overturned, the American right has become obsessed with bodily autonomy and has adopted the slogan “My body, my choice” about Covid vaccines and mask mandates.
Feminists have always known that if men — or at any rate cis men — could get pregnant, abortion would be a nonissue. The furious conservative reaction to Covid mitigation measures demonstrates this more than any hypothetical ever could. Many on the right, we can now see, believe it’s tyranny to be told to put something they don’t want on or in their bodies in order to save lives.
There is, to be fair, at least one prominent illiberal conservative, Harvard’s Adrian Vermeule, who has defended vaccine mandates, writing, “Even our physical liberties are rightly ordered to the common good of the community when necessary.” More typical on the right, however, is a paranoid sense that the vaccines are tied up with occult forces of social control.
In “Why I Didn’t Get the Covid Vaccine,” an essay in the Catholic anti-abortion journal First Things, the theologian Peter Leithart quotes a book called “The Great Covid Panic”: “A very effective way to dominate people is to convince them they are sinful unless they obey.” He invokes totalitarian “biopolitical regimes” that seek to exercise power over the body: “Once upon a time, the ruler bore a sword; now, a syringe,” he writes.
Of course, many American women will soon be faced with an infinitely more invasive form of biopolitical control, courtesy of First Things’ allies. On Wednesday, the Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization, a case dealing with Mississippi’s ban on abortions after 15 weeks. It’s possible that the justices could gut Roe without overturning it outright, but after they let Texas’ abortion bounty law stand, at least for the time being, I’m expecting the worst. If Roe is tossed out, most abortions will instantly become illegal in at least 12 states, and they will be severely restricted in others.
We are seeing a preview of what this world will look like in Texas, whose six-week abortion ban remains in effect. There are no exceptions for rape and incest. Women with wanted pregnancies that go tragically wrong have to either cross state lines for treatment or wait until their lives are in immediate danger. “Many doctors say they are unable to discuss the procedure as an option until the patient’s condition deteriorates and her life is at risk,” The New York Times reports.
It’s striking, the gap between the bodily impositions people on the right will accept in their own lives and those they would impose on others. When it comes to themselves, many conservatives find any encroachment on their physical sovereignty intolerable, and arguments about the common good irrelevant. Yet their movement is dragging us into a future where many women will be stripped of self-determination the moment they get pregnant. Choices, it seems, aren’t for everybody.
As the feminist Ellen Willis once put it, the central question in the abortion debate is not whether a fetus is a person, but whether a woman is. People, in our society, generally do not have their bodies appropriated by the state. It’s unimaginable that they would be forced to, say, donate blood. As we’ve seen, even mask and vaccine requirements elicit mass umbrage. Americans tend to believe that their bodies are inviolate.
“You can’t make a case against abortion by applying a general principle about everybody’s human rights; you have to show exactly the opposite — that the relationship between fetus and pregnant woman is an exception, one that justifies depriving women of their right to bodily integrity,” Willis wrote in 1985. To ban abortion is to say that pregnant women are not entitled to the authority over their physical selves that other adults expect and demand.
Mississippi’s attorney general, Lynn Fitch, who will defend her state’s ban before the Supreme Court on Wednesday, has also filed three lawsuits against President Biden’s vaccine mandates. On Nov. 12, a federal appeals court stayed one of them, the mandate dealing with companies that have over 100 employees. Judge Kurt D. Engelhardt, a Trump appointee, wrote that the public interest is “served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions — even, or perhaps particularly, when those decisions frustrate government officials.”
Engelhardt, a former member of Louisiana Lawyers for Life, obviously doesn’t believe that all individuals should have the liberty to make “intensely personal decisions according to their own convictions.” But that doesn’t mean he’s a hypocrite. He simply appears to believe, as much of the modern right does, that there are some people who should be subject to total physical coercion, and some who should be subject to none at all.
From The New York Times, November 30, 2021
When Human Life Begins is a Question of Politics – Not Biology
By: Sahotra Sarkar
A Texas law that aims to eliminate almost all abortions in the state is part of a long-standing nationwide movement to restrict the right to abortion. The Texas law went into effect on Sept. 1, 2021, and severely limits the right to have an abortion in that state.
But the anti-abortion movement is aiming more broadly than just Texas and placing its bets very strongly on a case expected to be argued this fall at the U.S. Supreme Court, known as Dobbs v. Jackson Women’s Health Organization. In that case, the state of Mississippi is asking the Supreme Court to decide on the constitutionality of any sort of prohibition on elective abortions before the fetus is viable outside the womb. If the court rules that those sorts of prohibitions are constitutional, that would overturn the long-standing decision in Roe v. Wade that women do have the right to have an abortion.
A recent friend-of-the-court filing in that case implicitly claims that biology – and therefore biologists – can tell when human life begins. The filing then goes on to claim explicitly that a vast majority of biologists agree on which particular point in fetal development actually marks the beginning of a human life.
Neither of those claims is true.
The role of science
As a biologist and philosopher, I have been watching players in the national abortion debate make claims about biology for many years.
Abortion rights opponents know that Americans have widely differing values and religious beliefs about abortion and the protection of human life. So they seek to use science as an absolute standard in any discussion of abortion’s constitutionality, setting a definition of human life that they hope will be immune to any counterargument.
While possibly well-intentioned, this appeal to scientific authority and evidence over discussions of people’s values is based on faulty reasoning. Philosophers such as the late Bernard Williams have long pointed out that understanding what it is to be human requires a lot more than biology. And scientists can’t establish when a fertilized cell or embryo or fetus becomes a human being.
Political claims about science
Public figures have, in recent years, prominently claimed that scientific knowledge on the topic of human life is definitive.
In 2012, for instance, former Arkansas Gov. Mike Huckabee, who was running for president, claimed on “The Daily Show with Jon Stewart: ”Biologically, life begins at conception. That’s irrefutable from a biological standpoint.“
Similarly, in his 2015 presidential bid, Florida Sen. Marco Rubio declared, ”I believe that science is clear … when there is conception that that is a human life in the early stages of its development.“
The most recent high-profile example of this claim is in that amicus brief filed with the Supreme Court in the Mississippi case.
The brief, coordinated by a University of Chicago graduate student in comparative human development, Steven Andrew Jacobs, is based on a problematic piece of research Jacobs conducted. He now seeks to enter it into the public record to influence U.S. law.
First, Jacobs carried out a survey, supposedly representative of all Americans, by seeking potential participants on the Amazon Mechanical Turk crowdsourcing marketplace and accepting all 2,979 respondents who agreed to participate. He found that most of these respondents trust biologists over others – including religious leaders, voters, philosophers and Supreme Court justices – to determine when human life begins.
Then, he sent 62,469 biologists who could be identified from institutional faculty and researcher lists a separate survey, offering several options for when, biologically, human life might begin. He got 5,502 responses; 95% of those self-selected respondents said that life began at fertilization, when a sperm and egg merge to form a single-celled zygote.
That result is not a proper survey method and does not carry any statistical or scientific weight. It is like asking 100 people about their favorite sport, finding out that only the 37 football fans bothered to answer, and declaring that 100% of Americans love football.
In the end, just 70 of those 60,000-plus biologists supported Jacobs’ legal argument enough to sign the amicus brief, which makes a companion argument to the main case. That may well be because there is neither scientific consensus on the matter of when human life actually begins nor agreement that it is a question that biologists can answer using their science.
Several possible options
Scott Gilbert, the Howard A. Schneiderman Professor of Biology emeritus at Swarthmore College, is the author of the standard textbook of developmental biology. He has identified as many as five developmental stages that, from a biological perspective, are all plausible beginning points for human life. Biology, as science knows it now, can tell these stages apart, but cannot determine at which one of these stages life begins.
The first of these stages is fertilization in the egg duct, when a zygote is formed with the full human genetic material. But almost every cell in everyone’s body contains that person’s complete DNA sequence. If genetic material alone makes a potential human being, then when we shed skin cells – as we do all the time – we are severing potential human beings.
The second plausible stage is called gastrulation, which happens about two weeks after fertilization. At that point, the embryo loses the ability to form identical twins – or triplets or more. The embryo therefore becomes a biological individual but not necessarily a human individual.
The third possible stage is at 24 to 27 weeks of pregnancy, when the characteristic human-specific brain-wave pattern emerges in the fetus’s brain. Disappearance of this pattern is part of the legal standard for human death; by symmetry, perhaps its appearance could be taken to mark the beginning of human life.
The fourth possible stage, which is the one endorsed in the Roe v. Wade decision legalizing abortion in the United States, is viability, when a fetus typically becomes viable outside the uterus with the help of available medical technology. With the technology that we have today, that stage is reached at about 24 weeks.
The final possibility is birth itself.
The overall point is that biology does not determine when human life begins. It is a question that can only be answered by appealing to our values, examining what we take to be human.
Perhaps biologists of the future will learn more. Until then, when human life begins during fetal developments is a question for philosophers and theologians. And policies based on an answer to that question will remain up to politicians – and judges.
Sahotra Sarkar is Professor of Philosophy and Integrative Biology, The University of Texas at Austin College of Liberal Arts
From The Conversation, September 1, 2021