In 1973, when the beginning of life was a mostly theocratic and philosophical question, the non-aggression principle perhaps demanded unrestricted access to legal abortions. But in 2020, evidences of life in the womb have become a scientific fact. This demands a reevaluation of the rights of an unborn child.
This is Part 6 in a series on the abortion issue by editor/owner Justin Stapley. Click here to read Part 5.
We can best summarize the quandary faced by the Supreme Court in Roe v. Wade, and by others at the time, by considering the non-aggression principle. The non-aggression principle, often shortened as NAP, is a tenet of classical liberalism. It’s adhered to by many who today call themselves libertarians (though there are proponents in both modern conservative and modern liberal camps).
The earliest description of what we can call the NAP was by John Locke. He said, “Being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”
The NAP is an aspect of negative liberty. Negative liberty is the idea that the government should not constrain the actions of individuals so long as they don’t violate the rights of others. The government, being a source of coercion and legal force, should only exercise its authority to maintain negative liberty. Only in this way would a government, and the citizens of that government, be non-aggressive in practice.
The Supreme Court had to essentially decide if outlawing abortion violated the non-aggression principle. They chose to determine that it did, given that the origins of life, and the question of when human life begins, were theological and philosophical quandaries, while a woman, and her health choices, were not an abstract consideration.
While it is unfortunate, the courts deemed it appropriate to decide on an issue that federal law had not explicitly addressed. In so doing, it effectively annulled all state laws on the subject. But, the decision in Roe v. Wade is not impossible to comprehend.
However, things have changed. Medical and technological advances over the last fifty years have been astounding. Specific to the healthcare advances in the field of pregnancy care, the leaps and bounds are beyond what most can comprehend.
In terms of the viability of a fetus, most can survive out of the womb after twenty-eight weeks, near the end of the second trimester. The use of ultrasound technology is now universal and has long been able to detect a heartbeat at six weeks. This technology can find abnormalities decreasing the chances of viability or increasing the danger to a woman’s health, and inform difficult choices, primarily while still in the first trimester.
On the other end of things, the options for birth control are widening and becoming increasingly affordable by Americans of all income levels. Barrier methods, hormonal methods, intrauterine devices, sterilization, and other new concepts of birth control are becoming prevalent and affordable for use by both men and women. Many insurance companies were covering the costs of birth control even before the Affordable Care Act began mandating the practice.
These developments stand as a stark difference to realities before Roe v. Wade. In A Medical View of Abortion, it says contraception in the 1960s, “was not freely available…and could only be obtained easily from the clinics of the Family Planning Association by women who were married, or said they were about to be married.”
Clearly, circumstances both in the viability of the fetus and in birth control options and availability have changed. These new realities should, in a non-dogmatic world, re-open an earnest and frank discussion about the prevalent practices, and views on rights, allowed by the Roe v. Wade decision.
When life begins, and whether a human fetus should be considered a person and deserving of human rights, is increasingly becoming a matter of scientific debate and not an abstract consideration for theologians and philosophers.
Brain activity, a beating heart, physical animation, cognizant response to outside stimuli, and viability outside the womb are all measurable evidence of a living being. Common sense ethics and human rights, not just religion and philosophy, are beginning to suggest that unrestricted abortion up to the moment of birth is an immoral disregard of the humanity of a human fetus.
As for the idea of choice, consider that a woman who decides to have an abortion late in the third trimester has already made a list of choices before arriving at that moment.
There was the sexual act, the decision to engage in the sexual act without contraceptive protection, the decision not to take a “morning after pill,” the decision not to have an abortion immediately, and the decision to carry the pregnancy past the first trimester, past the second trimester, and full-term into the third trimester. I can’t help but ask: how many more choices must be evident before we get to consider the rights of the unborn child?
The Supreme Court’s decision in 1973 that banning abortion violates the non-aggression principle, believing the origins of life and the beginning of human life were abstract considerations while a woman and her health choices were very real, is a decision that the new realities of medicine, healthcare, and technology should force society to reassess.
Regardless of the various stances held by pro-life and pro-choice advocates, it seems there are several conclusions we can draw that all sides should at least concede are strong cases.
On the one hand, if the creation and growth of human life is such a serious and momentous process, then restrictions on birth control options should be beyond consideration. Even “morning after” pills should be considered as allowable for family planning.
On the other hand, if science can detect all the evidence of life inside the womb, then society should consider a viable fetus as a person with the same rights to life and liberty as any other person. Common sense should allow us to conclude, at the least, that the law should disallow abortions in the third trimester. Further, an in-depth consideration of the scientific data should force society to consider whether a fetus is “alive” once a heartbeat can be detected.
In Part 7 of this series, Final Points and Conclusion, Justin will highlight his main assertions throughout the series and offer his final conclusion on the morality of unrestricted abortion access.
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