A deep dive into personhood and its implications on abortion through analysis of directly applicable scripture, tradition, and reason, this post also probes deeply into the rationale of the Roe v. Wade decision and the court’s self declared missing pieces.
Why read this?
Our society is in a battle over abortion. Some believe that this was created by a supreme court ruling, however that is not so. No, it was created by one group seeking to maintain forceful control over another group with differing views over what exactly a person is. To be sure, the control has swayed from one side to another, but the result has always been forced obedience to laws that has not resulted in the acceptance of one position or the other. The truth is that both views are, in their extremes, absurd. Killing a child as it is born at full term clearly represents a crime against a person under our constitution. Aborting a pregnancy the day or the week after conception clearly does not constitute a crime against a person under our constitution, nor should it.
The question is when does the unborn change states from a life form to a person, and that’s what this post is about. We will take the approach often used by Episcopalian theologians: Scripture, Tradition, and Right Reason and attempt a rational view.
Why have I written this?
I know, respect, and love people who have had abortions and I know, respect, and love people who have given birth to children that they didn’t want to have. I know, respect, and love people who have been adopted after their mothers chose to have them rather than abort the pregnancy. My own mother was far from pleased when she became pregnant with me ten years after her most recent child, so my existence is at least in part due to tradition and societal views on this topic.
This is not a quick post; it has taken months to write and rewrite and this issue has weighted heavily on my heart for many years.
Life, Liberty, and the Pursuit of Happiness
In the Roe v. Wade 410 US 113 (1973) supreme court decision we read “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.”
Life, in the context of the constitution, is the life of a person, a human being. The difficult question is when does the unborn become a person with all of the rights and privileges guaranteed under the constitution of these United States of America. A rational analysis cannot but conclude that the issue is not abortion but, rather, when and if the unborn require protection and advocacy, a subset of which is when and if the state has an interest in a woman’s decisions regarding pregnancy.
We’ll discuss the implications of personhood later, but for now it is important to understand that a person with rights has protections and the death of persons requires investigation. Do we dare force criminal proceedings for every miscarriage? Personhood means a lot more than whether or not a pregnancy can be terminated. It means that a person with full protections under the law from all causes of harm is being carried by another person, and this has enormous legal ramifications.
Now let’s begin.
The Torah addresses involuntary abortion as a result of injury to a pregnant woman during a brawl between men in Exodus 21:22-25. This review will include all available sources:
- Masoretic Hebrew Text in multiple translations including the 1917 Jewish Publication Society Tanakh (Jewish Hebrew Bible) text. Please note that “Dead Sea Scroll” 4Q22 “Paleo Exodus” (ca 150 BCE) matches the traditional Masoretic text but is written in Paleo Hebrew. We have every reason to believe that the Masoretic text originates no later than 500 BCE albeit no copies datable to that period exist.
- Septuagint (Greek Old Testament) text (ca 200 BCE)
- Peshitta (Syriac) Text (ca 300 CE here using Lamsa’s Bible which translation is somewhat in dispute), augmented by Glenn Bauscher’s 2017 translation.
- Samaritan Torah Text (ca 400 CE – this date is somewhat in dispute)
- Latin Vulgate Text (ca 405 CE)
I’ve included many English translations of many sources because the sources vary, and translations always include interpretations. Therefore, in some measure, translations have as a metanarrative the societal norms that produced translation or reading speaking in part to the Tradition part of this post.
(1) Masoretic Text:
I strongly believe that study of Scripture must needs include context, therefore we’re starting with two full chapters of Exodus (Chapters 20 and 21) to get that context. We find our study text in the context of the revelations at Mount Sinai. Yahweh has finished speaking to the people of Israel who have begged Moses to be an intermediary “or we shall die” (Exodus 20:19).
The text itself changes from first to third person at verse 20:7, making it seems as though Yahweh is being spoken of, rather than speaking. I’ve used the New Jerusalem Bible (NJB) here so that the name of God, Yahweh, rather than “the LORD”, is in the text – I find this very helpful.
Paragraph formation and emphasis are mine and my comments embedded between verses.
NJB: Exodus 20:1 Then God spoke all these words. He said,
2 ‘I am Yahweh your God who brought you out of Egypt, where you lived as slaves.
3 ‘You shall have no other gods to rival me.
4 ‘You shall not make yourself a carved image or any likeness of anything in heaven above or on earth beneath or in the waters under the earth. 5 ‘You shall not bow down to them or serve them. For I, Yahweh your God, am a jealous God and I punish a parent’s fault in the children, the grandchildren, and the great-grandchildren among those who hate me; 6 but I act with faithful love towards thousands of those who love me and keep my commandments.
7 ‘You shall not misuse the name of Yahweh your God, for Yahweh will not leave unpunished anyone who misuses his name.
Note the change here. “for Yahweh will …” isn’t first person such as “For I, Yahweh will…”. Throughout the second temple period and up to at least 400 CE when the Babylonian Talmud was written, this led to debate as to whether the commands that follow verse 6 are commands of Yahweh or the interpretation or outright imposition of Moses.
8 ‘Remember the Sabbath day and keep it holy. 9 For six days you shall labour and do all your work, 10 but the seventh day is a Sabbath for Yahweh your God. You shall do no work that day, neither you nor your son nor your daughter nor your servants, men or women, nor your animals nor the alien living with you.
11 For in six days Yahweh made the heavens, earth and sea and all that these contain, but on the seventh day he rested; that is why Yahweh has blessed the Sabbath day and made it sacred.
12 ‘Honour your father and your mother so that you may live long in the land that Yahweh your God is giving you.
13 ‘You shall not kill.
14 ‘You shall not commit adultery.
15 ‘You shall not steal.
16 ‘You shall not give false evidence against your eighbor.
17 ‘You shall not set your heart on your neighbour’s house. You shall not set your heart on your neighbour’s spouse, or servant, man or woman, or ox, or donkey, or any of your neighbour’s possessions.’
18 Seeing the thunder pealing, the lightning flashing, the trumpet blasting and the mountain smoking, the people were all terrified and kept their distance.
19 ‘Speak to us yourself,’ they said to Moses, ‘and we will obey; but do not let God speak to us, or we shall die.’
20 Moses said to the people, ‘Do not be afraid; God has come to test you, so that your fear of him, being always in your mind, may keep you from sinning.’
21 So the people kept their distance while Moses approached the dark cloud where God was.
Should verses 18-21 be presented before verse 7? Many ancients thought so – that the only direct commands from God were verses 2-6.
22 Yahweh said to Moses, ‘Tell the Israelites this, “You have seen for yourselves how I have spoken to you from heaven. 23 You must not make gods of silver to rival me, nor must you make yourselves gods of gold. 24 “You must make me an altar of earth on which to sacrifice your burnt offerings and communion sacrifices, your sheep and cattle. Wherever I choose to have my name remembered, I shall come to you and bless you.
25 If you make me an altar of stone, do not build it of dressed stones; for if you use a chisel on it, you will profane it. 26 You must not go up to my altar by steps, in case you expose your nakedness on them.” ‘
NJB Exodus 21:1 ‘These are the laws you must give them:
This is Yahweh speaking to Moses, not directly to the people. So, traditionally, what we have in this text is Moses’ writing of what Yahweh instructed him to do, a written narrative of the encounter with Yahweh.
Jewish tradition has long held that unwritten instructions were passed along with the text itself. This “oral Torah” is first written down in the Mishnah (completed ca 130 CE) and, later the Jerusalem Talmud and Babylonian Talmud (completed ca 400 CE). We believe that these traditions are largely from the Pharisees and became important to Rabbinical Judaism after the fall of the Temple in 70 CE, and the brutal suppression (and outright genocide) following the failed Bar Kokbah revolt (132-136 CE, with the fall of Judea in 135 CE). Many of the details and questions about each of these laws are considered in the oral tradition, and ancient interpreters, the Pesherim we find at Qumran (the Dead Sea Scrolls) and the Midrashim a bit later record these traditions in forms of rewritten biblical narratives and filling in gaps.
2 ‘When you buy a Hebrew slave, his service will last for six years. In the seventh year he will leave a free man without paying compensation. 3 If he came single, he will depart single; if he came married, his wife will depart with him. 4 If his master gives him a wife and she bears him sons or daughters, the wife and her children will belong to her master, and he will depart alone.
5 But if the slave says, “I love my master and my wife and children; I do not wish to be freed,” 6 then his master will bring him before God and then, leading him to the door or the doorpost, his master will pierce his ear with an awl, and the slave will be permanently his.
7 If a man sells his daughter as a slave, she will not leave as male slaves do. 8 If she does not please her master who intended her for himself, he must let her be bought back: he has not the right to sell her to foreigners, for this would be a breach of faith with her. 9 If he intends her for his son, he must treat her as custom requires daughters to be treated. 10 If he takes another wife, he must not reduce the food, clothing or conjugal rights of the first one. 11 Should he deprive her of these three things she will leave a free woman, without paying compensation.
12 ‘Anyone who by violence causes a death must be put to death. 13 If, however, he has not planned to do it but it comes from God by his hand, he can take refuge in a place which I shall appoint for you. 14 But should any person dare to kill another with deliberate planning, you will take that person even from my altar to be put to death.
15 ‘Anyone who strikes father or mother will be put to death.
16 Anyone who abducts a person – whether that person has since been sold or is still held – will be put to death.
17 Anyone who curses father or mother will be put to death.
18 ‘If people quarrel and one strikes the other a blow with stone or fist so that the injured party, though not dead, is confined to bed, 19 but later recovers and can go about, even with a stick, the one who struck the blow will have no liability, other than to compensate the injured party for the enforced inactivity and to take care of the injured party until the cure is complete.
20 ‘If someone beats his slave, male or female, and the slave dies at his hands, he must pay the penalty. 21 But should the slave survive for one or two days, he will pay no penalty because the slave is his by right of purchase.
22 ‘If people, when brawling, hurt a pregnant woman and she suffers a miscarriage but no further harm is done, the person responsible will pay compensation as fixed by the woman’s master, paying as much as the judges decide. 23 If further harm is done, however, you will award life for life, 24 eye for eye, tooth for tooth, hand for hand, foot for foot, 25 burn for burn, wound for wound, stroke for stroke.
This is our study text, Exodus 21:22-25. As we will find, the interpretation of the Hebrew here is not straightforward, and “miscarriage” is a misleading term because the fate of the woman’s child is not clear in the text.
“fixed by the woman’s master” is generally rendered “fixed by the woman’s husband”. The Hebrew here is בַּ֣עַל “Ba’al” which means lord, master, husband. In the Vulgate we find maritus which is clearly husband or, in poetry, lover. The Greek, ἀνὴρ “Aner” could mean man or husband. In all cases, the I take this to mean the father of the child.
Modern eyes will find the location of this text, between two laws regarding slaves, informative regarding the station of women in the society that produced these texts.
26 ‘If anyone strikes the eye of his slave, male or female, and destroys the use of it, he will give the slave his freedom to compensate for the eye. 27 If he knocks out the tooth of his slave, male or female, he will give the slave his freedom to compensate for the tooth.
28 ‘If an ox gores a man or woman to death, the ox will be stoned and its meat will not be eaten, but the owner of the ox will not be liable. 29 But if the ox has been in the habit of goring before, and if its owner has been warned but has not kept it under control, then should this ox kill a man or woman, it will be stoned and its owner put to death. 30 If a ransom is imposed on the owner, he will pay whatever is imposed, to redeem his life. 31 If the ox gores a boy or a girl, it will be treated in accordance with this same rule. 2 If the ox gores a slave, male or female, its owner will pay the price – thirty shekels – to their master, and the ox will be stoned.
33 ‘If anyone leaves a pit uncovered, or digs a pit and does not cover it, and an ox, or donkey falls into it, 34 then the owner of the pit will make good the loss by compensating its owner, and the dead animal will be his.
35 If anyone’s ox injures anyone else’s ox causing its death, the owners will sell and share the money for it; they will also share the dead animal. 36 But if it is common knowledge that the ox has been in the habit of goring before, and its owner has not kept it under control, the owner will repay ox for ox, and will keep the dead animal.
37 ‘If anyone steals an ox or a sheep and slaughters or sells it, he will pay back five beasts from the herd for the ox, and four animals from the flock for the sheep.’
(Exodus 20:1-21:37 NJB)
Study Text Analysis
Modern scholars prefer the New Revised Standard Version (NRS or NRSV) for precision in translation. Here, I’ll contrast that with the 1611 CE King James Version (emphasis mine):
NRS: “When people who are fighting injure a pregnant woman so that there is a miscarriage, and yet no further harm follows, the one responsible shall be fined what the woman’s husband demands, paying as much as the judges determine. If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, and for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.” (Exodus 21:22-25 NRS)
King James: “If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman’s husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe. (Exod. 21:22-25 KJV)
Note the difference in the first verse. The sense of the Hebrew (yeled yatsa’) is that the “child(ren) come(s) out”, as we see in the (modern) English Standard Version (ESV):
ESV: “When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman’s husband shall impose on him, and he shall pay as the judges determine. (Exodus 21:22 ESV)
The fate of the child is not at all clear in the text. A miscarriage implies that the child has died, leading one to believe that the following harm applies to the mother – but this is not at all clear and may be an interpretation in the NRS rather than a translation. Indeed, the word “mischief” in the KJV is close to the mark, most likely, more so than “harm”.
JPS Tanakh (1917): “And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman’s husband shall lay upon him; and he shall pay as the judges determine. But if any harm follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” (Exod. 21:18-25 JPS)
Summary: The Masoretic text is clear that the loss of the child is not always considered a violent crime. What exactly the fine is for in this case is not clear in the text – is it for injury to the mother or the loss of the child? The “harm that follows” is not at all clear – is this harm to the woman, harm to her child, or both?
(2) Septuagint (LXX) Text:
In most cases, the LXX provides an accurate Greek translation of the Masoretic Hebrew as we have it. Exodus 21 presents a rare and striking departure from the Hebrew text:
Septuagint Translation: “And if two men strive and smite a woman with child, and her child be born imperfectly formed, he shall be forced to pay a penalty: as the woman’s husband may lay upon him, he shall pay with a valuation. But if it be perfectly formed, he shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” (Exodus. 21:22-25 LXE)
Summary: Here it is very clear that harm has to do with the child rather than the mother. This is the concept of quickening, of a stage in pregnancy whereupon the life form has become a person.
(3) Peshitta (Syriac/Aramaic) Text:
Lamsa Translation: “If two men quarrel, and strike a woman with child so that she miscarries, and yet no mischief follow; he shall surely pay a fine such as the woman’s husband will lay upon him; and he shall pay as the judges determine. But if any mischief follow, then he shall give lie for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, slap for slap.” (Exodus 21:22-25)
Bauscher Translation: (My construction of his word for word translation) And when two men will fight and they strike a woman who is pregnant and her infant shall come out and no misfortune will be, he shall be fined according to what her husband lays on him and the judges decide. And if there is a misfortune he will give life in exchange for life, tooth in exchange for tooth, eye in exchange for eye, foot in exchange for foot, hand in exchange for hand, wound in exchange for wound, branding in exchange for branding, blow in exchange for blow.”
Summary: The Peshitta is true to the Masoretic text including its ambiguities.
(4) Samaritan Torah Text:
Excerpted from “The Israelite Samaritan Version of the Torah” Text, Benyamim Tsedaka, 2013.
Samaritan Translation: “And if men struggle with each other and they strike a pregnant woman and her child is born. And there being no harm, he shall be surely fined, according as the woman’s husband shall lay upon him. And he shall pay as the judges determined. And if harm follow, then you shall give soul for soul, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” (Exod. 21:22-25)
Summary: The Samaritan Torah is true to the Masoretic text including its ambiguities.
(5) Vulgate Text:
Vulgate Latin: Si rixati fuerint viri et percusserit quis mulierem praegnantem et abortivum quidem fecerit sed ipsa vixerit subiacebit damno quantum expetierit maritus mulieris et arbitri iudicarint sin autem mors eius fuerit subsecuta reddet animam pro anima oculum pro oculo dentem pro dente manum pro manu pedem pro pede adustionem pro adustione vulnus pro vulnere livorem pro livore (Exodus 21:22-25 VULM)
Vulgate Translation: “If men quarrel, and one strike a woman with child and she miscarry indeed, but live herself: he shall be answerable for so much damage as the woman’s husband shall require, and as arbiters shall award. But if her death ensue thereupon, he shall render life for life, Eye for eye, tooth for tooth, hand for hand, foot for foot, Burning for burning, wound for wound, stripe for stripe.” (Translation by Vulgate.org note: this is identical to my Douay Rheims translation.)
Summary: In the Vulgate version, it is clear that harm has to do with the mother only, albeit the fine may include compensation for the loss of the child. This does not conform to our existing Hebrew Masoretic text albeit St. Jerome worked closely with Jewish scholars in the preparation of the Vulgate. It is possible that this includes interpretive elements or conforms to traditional interpretation.
This leaves us in a quandary regarding the historical interpretation of the meaning of the text itself.
- The oldest, Hebrew text is ambiguous as are the Syriac (Peshitta) and Samaritan Torah.
- The Greek text is abundantly clear that this law is about the fate of the woman’s children and that there is a point in pregnancy (“not fully formed”) where the penalty is a fine (assumedly for loss of property) whereas there is a further point (“fully formed”) whereupon the unborn has full status as a human being and the injury to the child follows the lex talionis, the law of like for like retaliation. Harm to the woman is not addressed, perhaps because that is already covered by the lex talionis regardless of her state of pregnancy.
- The Vulgate moves in the opposite direction of the LXX towards the side of all harm being to the woman regardless of the status of the child.
What can we generalize from all of these variants?
- In no case is the loss of the “fruit of the womb” always considered murder or manslaughter.
- In all cases the event creates a fine, but exactly what that fine is for is uncertain.
Longstanding tradition for Christians and Jews alike abhors abortion.
Roe v Wade, in section VI addresses tradition and legal evolution in section VI which is prohibitively long for inclusion in this post. Samples are below and the remainder is very good reading.
- Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished. 8 We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, 9 and that “it was resorted to without scruple.” 10 The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome’s prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. 11 Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father’s right to his offspring. Ancient religion did not bar abortion. 12 “ …
- The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described[410 U.S. 113, 131] as the Father of Medicine, the “wisest and the greatest practitioner of his art,” and the “most important and most complete medical personality of antiquity,” who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? 13 The Oath varies somewhat according to the particular translation, but in any translation the content is clear: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion,” 14 or “I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy.” 15 …
- The common law. It is undisputed that at common law, abortion performed before “quickening” – the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy 20– was not an indictable offense. 21 The absence [410 U.S. 113, 133] of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became “formed” or recognizably human, or in terms of when a “person” came into being, that is, infused with a “soul” or “animated.” A loose consensus evolved in early English law that these events occurred at some point between conception and live birth. 22 This was “mediate animation.” Although[410 U.S. 113, 134] Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas’ definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country. …
- The English statutory law. England’s first criminal abortion statute, Lord Ellenborough’s Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, 1, a capital crime, but in 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the “quickening” distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of “the life of a child capable of being born alive.” It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be [410 U.S. 113, 137] found guilty of the offense “unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.” …
- The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman “quick with child.” 29 The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. 30 In 1828, New York enacted legislation 31 that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it “shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.” By 1840, when Texas had received the common law, 32 only eight American States [410 U.S. 113, 139] had statutes dealing with abortion. 33 It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother’s life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose. …
The Supreme Court of the United States struggled in the Roe v Wade ruling with the issue of when the unborn becomes a person but did not rule on that basis because consensus among experts disagreed. Because of the major import of this case, reading the decision cannot be encouraged strongly enough. It is not what you most likely think: it is not a blank check for abortion.
Indeed, this ruling echoes the same ambiguity that we find in both the Masoretic text and the LXX – there is a point, says Roe v. Wade, an undefined point, where the right to privacy is not absolute, where the state has an interest in protecting the child. The ruling does not define that point, and leaves it to others to do that, writing “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.”
In section VIII we read (emphasis mine):
“On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The [410 U.S. 113, 154] Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”
In section IX(B) we read (emphasis mine):
“Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. 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. [410 U.S. 113, 160] ”
Human infants are among the most fragile of all mammals, so differentiation in post-birth abilities is just silly. Some make a plausible argument regarding the viability of the child apart from the mother’s womb, without special care in a neo-natal ward for, as an example, lungs that aren’t quite ready for this world. This goes against “fully formed” at least from the perspective of an observer, and the viability of the child with life support would of course increase with increasing capability – that’s not a definition of when human life becomes a person due to the variability involved.
No, we’re discussing the very nature of being, that is ontology, what it is to be a human person, and this is a very dangerous discussion to have because whatever or whomever does not meet the proposed standard has no rights.
A heartbeat has recently been proposed, even legislated. Earthworms have a heartbeat too and they cannot be judged persons. Were a demarcation to be made, it seems it should be based on the cognitive abilities at a stage in pregnancy. Some unborn children react to light, to the sound of their mother’s voice. They show memory, the ability to discern things. This usually begins after the 25th week of gestation when the brain begins to complete and sensory systems begin to be intact. Therefore, it seems clear that a person exists at or near the 25th week of gestation (and at all points thereafter).
Scripture: We have seen that Jewish scripture, in the book of Exodus, is ambiguous regarding personhood of the child but clearly states in all forms that there is some point at which the child is not a person. The Septuagint embraces the concept of full formation or quickening whereas the Vulgate speaks only to the health and wellbeing of the woman whose pregnancy was involuntarily terminated.
Tradition: We have seen that traditions among many peoples have varied, knowing full well that Christian and Jewish tradition has always opposed abortion. We have also seen that the laws regarding abortion began to tighten in the mid nineteenth century.
Right Reason: It seems clear to me from the available information that there is indeed a boundary in gestation after which abortion is tantamount to murder.
All persons in the United States are constitutionally guaranteed equal protection under the law. There can be no exception for unborn or otherwise incapacitated persons, unless distinction of citizenship be withheld until a person is born in these United States. A very dangerous precedent in this regard was set by Dred Scott v. Sanford (denying citizenship to persons of color) which was overturned by the 14th amendment to the constitution. This, along with Buck v. Bell (ordering sterilization of an “imbecile”) are the two most misanthropic SCOTUS rulings in history. To be sure, persons who are born in, or will likely be born in, these United States must enjoy constitutional protections.
Entitlement to, nay guarantee of constitutional protections is a broad ranging issue as is due process and all other rights granted by the constitution and our legal codes for all U. S. persons. At a minimum, the seven following topics would require attention. I’m sure many others are left off of my list.
- Every minor is entitled to protection and guardianship. Should a mother be determined unfit during pregnancy, a guardian for the child would be required as would supervision of the mother, up to and including incarceration and a forced dietary and lifestyle regimen.
- Every person’s death requires determination of causality by an attending physician or through forensic investigation and a coroner’s inquest. This would of course be required for all deaths after personhood is reached to find the causality and potentially bring charges.
- Entrance into personhood requires, generally, registration of live birth. This would now include a requirement to register a person prior to birth.
- Automobiles, aircraft, and other modes of transportation would require evaluation for the safety of unborn persons. Most likely, persons carrying unborn persons would be prohibited from driving or from exposure to existing air-bags. Seat belts and so forth would require appropriate accommodations.
- Activities that might reasonably be expected to put the unborn at risk would have to be prohibited by law. These would include, among others, roller coasters, sky diving, water skiing, motorcycle riding, alcohol consumption, smoking (tobacco or anything else), risks posed by prescription and over the counter medications, and so forth and so on.
- As with child abuse in day care and other centers, legal reporting requirements would have to be put in place for mothers suspected of engaging in activities that could endanger the unborn. All doctors would have to make reports of patients not following pre-natal care instructions at the onset of personhood.
- Home birth or the use of midwives would have to be changed or outlawed due to the lack of medical facilities and emergency care for the child at birth.
Both sides of this issue are in grave error because the discussion is about termination of a pregnancy through abortion rather than the rights of a person who is yet to be born. Because of those rights, this is not a states’ rights issue but, rather, an issue of constitutional compliance regarding, inter alia, equal protection and due process clauses. As quoted above, Roe v. Wade awaits consensus of when personhood is established, at which point those rights begin; the ruling most certainly is not an across the board granting of liberty to terminate any and all stages of pregnancy.
In making such determinations, and in this discussion as a whole, it seems impossible to extricate the discussion of personhood from the overtones of, on the one side, using abortion as birth control and, on the other side, freedom of a woman to control her own body. Impossible though it may seem, this is precisely what must be done in order to make progress in this debate: the focus must be on when an unborn child becomes a person.
Traditional religious views are also difficult to extricate; the fact that the large scale criminalization of abortion began during the Second Great Awakening is not lost on this author, nor is the prevalence of traditional views of women and children as the property of men, ensconced in the law under titles of “Head and Master” and “Coverture.” The Louisiana Head and Master law was changed in 1980 as the appeals process led to a Supreme Court Ruling in Kirchberg v. Feenstra, 450 U.S. 455 in 1981. Attitudes are far behind the courts.
In due consideration of these difficulties, it seems important to distill the need for change from the current state into a more objective summary. What is it that we seek to do with changes to the current state?
Case 1: We seek to protect the rights of a citizen to be.
It seems clear to me that pregnancies that have reached the third trimester of gestation enter the state where one person carries another. Because constitutionally guaranteed rights cannot be altered from state to state, federal legislation is required to support this position and ensure the rights of these persons. The supreme court, in accordance with the findings of Roe v. Wade should uphold any challenges if the legislation is based on consensus findings that a living person begins to exist at this stage of pregnancy.
But the legislative process must be holistic and ensure those rights, not just that a person will be born. Due measures must be taken to provide a safe environment for the unborn person in modes of transportation and in living arrangements. Moreover, the notion of mercy killings must be dealt with as one finds in the late term abortions piece by the New York Times. For me, this piece is frightening inasmuch as a woman is convinced by her doctor that the unborn will suffer and the child is either killed in the womb or is given “comfort care” and allowed to die after birth. I find this appalling because doctors cannot know the future state, they can only know probabilities and such a decision should not be made without due consideration, a peer review, and independent counsel for the child.
Case 2: We seek to preserve the privacy rights of women.
We do not have freedom in this country but, rather, liberty. Liberty is constrained freedom that protects the rights of each individual as well as the several states. Constraints in our extant system are far flung and, because a reasonable person cannot possibly understand the law, are completely out of order and control creating a real atmosphere of oppression and tyranny among many classes of persons.
The right to privacy, which is not specified in the constitution, was the foundation of the Roe v. Wade case. It is clear from Roe v. Wade that such rights are not absolute, and when the rights of one person put another into jeopardy, freedom to do harm must needs be constrained. The method to find the balance between freedom and liberty is as discussed in Case 1.
Case 3: We seek to control the sexual activity of women.
From the discussions I’ve had and heard, and from lots of literature that I’ve read, the prevalence of the notion that unwanted pregnancies are the fault of promiscuous women cannot be escaped. Throughout the Biblical corpus and our history, women have been ubiquitously and falsely described as wanton sexual beings luring men into dens of iniquity for the purpose of debauchery. The truth seems quite different, that this falsehood has been used to explain, even justify, the philandering of the males of our species. Surely the prevalence of sexually oriented businesses catering to males (of all sexual orientations) makes this point clear.
The law is an instrument to constrain liberty to prevent harm by one to another; it cannot and must not be used to enforce moral constraints that do not involve harm.
Beyond the misogyny of this position, the imbalance of the impact upon the poor is very troubling. Contrary to this case, elements supporting this case bizarrely seek to make pregnancy more likely, as perhaps some penalty for fornication, through disallowing insurance coverage for birth control, yet the middle classes and above can easily pay the full price for such prophylactic measures. This approach produces an unfair and unreasonable burden on the poor, and such a thing ought not be done in these United States.
Proper resolution to the question of when abortion should be legal requires societal change to accommodate the health and wellbeing of unborn future citizens, and to fund the necessary programs to ensure good outcomes. When the will of the people to do this, at the federal level, is expressed at the ballot box and the medical community provides consensus regarding the stage (in weeks) at when the unborn is a person, change is possible. So long as the two sides argue about the morality of the woman’s pregnancy rather than the interest of the child, no change is possible, and the entire cause remains an emotional and political farce.
One thought on “Abortion and Personhood”
I thoroughly enjoyed this post. Extremely well researched. Since we do not live under a theocracy, our government cannot legislate morality. So no, they cannot settle this debate on those terms.
I agree that the decision or the law needs to be based on citizenship – and when an unborn child qualifies. Your discussion was very interesting in this regard.
(The Pope however can legislate morality to his church. And in his terms, the fetus is a person. )
Completely outside of the legal discussion, my long held moral view (which I DON’T believe can be legislated) on this subject of personhood comes from the New Testament according to the apostle Paul, Romans 8:29-30.
29.) “For whom He foreknew, He also predestined to be conformed to the image of His Son, that He may be the firstborn among many brethren. “
30.)”Moreover whom He predestined, these He also called; whom He called, these He also justified; and whom He justified, these He also glorified.”
So according to that view, personhood began at or well before zygote stage.
Many years ago moral laws were much more important than today. We were rooted in them. So perhaps that is why we still try to legislate with a moral view. But
today I believe it must be secular.