Balkinization: The general theory and special theory of abortion

The general theory and special theory of abortion

Guest Blogger

[For The Conference on The Future of Sexual And Reproductive Rights]

Robert Goldstein

I offer the following exercise, employing two categories that I shall call the general and special theories of procreation and abortion, to emphasize that the focus on the fetus has come at the expense of other ideas, unrelated to the status of the fetus, that underwrite much of the opposition to abortion.

A.1. Since 1973, the legal and political debate over abortion has primarily had recourse to the “special theory” of abortion. This theory seeks to account for how one body emerges into two, and the specification of the gravitational pull between them. This special theory is useful for describing small-scale phenomena—two bodies (one miniscule) during time periods measured in a maximum of 9 month increments, that is in increments constituting a portion of a marriage, a fraction of a woman’s lifetime, and a flash in the history of a nation or tribe.

What is the relationship between the woman and the fetus (as its mass and meaning and status and spirit develop from zygote, to blastocyst, to embryo, to fetus to neonate)? We all know these various accounts. Some assume that the forces operating between the two are so weak that a work-a-day account of abortion may safely ignore them altogether by describing two small bodies with independent and separate trajectories. Thus, in the 1980s, some commentators imagined a technological fix that would permit both the woman and fetus-cum-artificial-womb to separate and continue on their independent ways. A different, Ptolemaic, account pictures the fetus suspended from nowhere, in no relational field itself, but exerting an irresistible gravitational pull on its surround, and influencing all who would gaze on it (or its ultrasound depiction). Recently in Gonzales v. Carhart, the Court, through Justice Kennedy, imagined a somewhat less fetal centric field, focusing instead on the gravida in relationship with the fetus; but Justice Kennedy axiomatically asserted that the woman’s identity is subject to a fetal gravitational pull so powerful that, despite her autonomous choice, an abortion will possibly traumatize and throw her own adult trajectory off kilter. And in Mother-Love and Abortion, I offered an altogether different view of the relational field, in which a fetus comes to personhood only through a freely chosen loving symbiosis offered by the woman before and after birth. See also LaFleur, Liquid Life (1992) (an important account of Japanese Buddhist practice especially for those concerned about complex grief and guilt following an abortion).

Before 1973, it was not a special theory that occupied debate but a general one; and since 1973, our focus on a special theory has clouded more than it has clarified.

A.2. A general theory of procreation addresses a different kind of relationship: that between sexuality and procreation. There are many accounts that aim at offering a general theory; and there are a number of phenomena that such accounts address. But the status of the fetus is not one of them. General theories instead consider such phenomena as: the diploid and haploid portions of the human body; the relationship of that body to the self and the sexual nature of both; the reduced periodicity of human fertility as compared with other species; the species’ efforts, through science and public health, that have greatly increased human fertility-success and long-term survival rates; and the relationship of body and self to family, tribe, nation, and world environment.

Of the various general-theory accounts, the Catholic Church (and some fundamentalist Protestants) offers an account that postulates a moral identity between sexuality and procreation. That postulate in turn yields a theorem that asserts the substantial moral equivalence of abortion and contraception. This theological belief lacks the focus on tribe or nation found, for example, in Genesis’ account of fecundity: ”be fruitful and multiply.” It instead centers on God’s intended and exclusive purpose in creating human sexuality. (Despite this theological shift from Genesis, however, some religious leaders in all faiths still exploit the union of God and Country to encourage fecundity).

B.1. This belief in the moral equivalence of abortion and contraception is all around. It is the unstated reason why political efforts to reduce the number of abortions (through effective sex education and contraceptive policy, for example) have been so limited, although it would otherwise seem to be a necessary moral corollary arising from the asserted belief about the moral status of each embryo. Thus, the Republican Platform Committee this summer rebuffed a provision that advocated working with Democrats to reduce the number of abortions. It is the reason that, in its proposed rule-making to protect the “conscience” of health care workers, HHS treats with equal moral seriousness abortion and sterilization, and leaves room for including contraception as well. Homosexuality would not be equated with abortion as part of a “culture of death” (Evangelium Vitae), and the risk of AIDS increased by opposition to condom distribution, if what mattered was the destruction of embryos rather than the evil of non-procreative sexuality. Furthermore, the harm principle might not have seemed quite so weak and insufficient a principle to Justice Scalia, in his Lawrence v Texas dissent, were it not important to him to give an account of why the state can regulate non-procreative masturbatory sex as an offense against traditional morality.

In the 1860s, Dr. Horatio Storer may have mixed a general and special theory, augmenting his primary view about procreation and woman’s role in marriage, race, and country with some assertions about the status of the fetus. Still, one may infer that Congress’ nearly contemporaneous enactment of the Comstock Law depended entirely on the equivalence of abortion and contraception. In one statutory sentence, in apparently descending order of importance, it outlawed:

an obscene book…or image … or other article of an immoral nature, or any drug or medicine, or any article whatever, for the prevention of conception, or for causing unlawful abortion and on conviction thereof in any court of the United States...he shall be imprisoned at hard labor in the penitentiary for not less than six months nor more than five years for each offense, or fined not less than one hundred dollars nor more than two thousand dollars, with costs of court.

B.2. Within the law, the work of Professor John Noonan (now Ninth Circuit judge on senior status) nicely illuminates the move from a general to a special theory. In 1965, the year of Griswold, he published Contraception (Harvard University Press), a treatise prepared in part for Vatican II’s reconsideration of contraception. Five years later, Noonan edited The Morality of Abortion (Harvard University Press), and contributed an essay, “An Almost Absolute Value in History,” seeking to elaborate a separate and distinct moral argument, based on the nature of the fetus, for opposition to abortion. He noted just how recently the separation of the Church’s general and special theories had occurred: “For the first time contraception was treated differently from abortion” by a General Council of the Church only in 1965, id. at 46 (emphasis added) (referring to Gaudium et Spes).

Nonetheless, efforts to change the Church’s position on contraception failed almost immediately, with Pope Paul VI’s 1968 Encyclical Letter Humanae Vitae. It provides:

Just as man does not have unlimited dominion over his body in general, so also, and with more particular reason, he has no such dominion over his specifically sexual faculties….
…each and every marital act must of necessity retain its intrinsic relationship to the procreation of human life.
12. [There is an] inseparable connection, established by God, which man on his own initiative may not break, between the unitive significance and the procreative significance which are both inherent to the marriage act.

Why? As a “result of laws written into the actual nature of man and of woman.” Thus,

an act of mutual love which impairs the capacity to transmit life which God the Creator, through specific laws, has built into it, frustrates His design which constitutes the norm of marriage, and contradicts the will of the Author of life. Hence to use this divine gift while depriving it, even if only partially, of its meaning and purpose, is equally repugnant to the nature of man and of woman, and is consequently in opposition to the plan of God and His holy will.

Therefore, the Encyclical equally condemns “as unlawful birth control methods” abortion, sterilization, and contraception in three successive sentences:

direct interruption of the generative process already begun and, above all, all direct abortion…are to be absolutely excluded…. Equally to be condemned…is direct sterilization….Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation…”(emphases added).

C. The Encyclical’s pastoral directives included an appeal to “public authorities:” “do not tolerate any legislation which would introduce into the family those practices which are opposed to the natural law of God.”

Within five years and less than a year before Roe, one Catholic public authority of particular importance ignored this appeal. Justice Brennan’s majority opinion in Eisenstadt v Baird recognized the right: “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” But Brennan, like the Pope, seamlessly linked contraception, sterilization and abortion.

It may have been the centrality of the general theory that blinded the Court to the divisiveness Roe would release beginning that next year. (My Mother-Love offered a psychological account of the energy—“Roe rage” as Reva Siegel and Robert Post aptly name it—that is bound up in this two-body phenomenon, identified by the special theory, and the explosive release induced in the minds of some third persons when abortion sunders it).

Despite Roe’s special-theory focus on the “potential life of the fetus,” some ensuing litigation and commentary questioned the state’s interest in “potential life,” explored the religious nature of the reasons employed in abortion regulation, and asserted that moral flux and the multiplicity of beliefs surrounding reproduction sufficed to justify Roe’s holding (see Tribe, “Structural Due Process”). But those sorts of explorations of a general theory receded as repeated reassertions about the state interest in the fetus became routine.

It was surprising, then, to see how strongly the Casey joint opinion invoked a general theory when it importantly and firmly asserted that Griswold itself protected the “morning after” pill although fertilization had occurred, and reaffirmed that abortion has much in common with contraception:

…in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International, afford constitutional protection. We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman's liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. …These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Griswold…The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant.

Finally, between Griswold and Eisenstadt was the ever-generative opinion in Loving v Virginia. It is worth recalling that it eliminated the state’s power (asserted under a general theory of procreation) to harness procreation on behalf of an ethnicity or race (as in Genesis); rather, the Court established each individual’s complete authority over the racial consequences of his or her sexual choices. (In Griswold, Justice Goldberg had implied a similar result concerning procreation and the nation.) It is also worth recalling that Loving did not defer to the state’s asserted (pseudo) scientific claims about (interracial) procreation, but instead excavated the world-view that underlay those assertions. We should do the same today.

Posted 6:05 AM by Guest Blogger [link]