Imagine you are driving on a foggy night and you see a dark figure ahead. It could be a fallen branch. It might even be a little deer, or, God forbid, a little child. Do you keep on driving full speed and crash through it, or put on the brakes? If you think it might be a human person, either dead or alive, what should you do?
Most of us would say that even if we are uncertain, we should stop and check. We should give the benefit of the doubt to something that might be human, and, if it is, treat it with care.
But a recent article for Gatestone suggests that society has no obligation to interfere with a woman who chooses to get an abortion. The article concedes that the question of when life begins is complex, and suggests that after the first trimester the question becomes more difficult. But it fails to distinguish between early and late abortions. The author criticizes "anti-abortion right-to-life advocates" who say that the state should sometimes step in:
"They do not want any woman to have the right to choose abortion for herself. They want to have the state choose for her -- to deny her the right to choose between giving birth to an unwanted child and having an abortion."
According to the article, the question comes down to who should make decisions about life and death -- the pregnant woman or the "impersonal state." Of course, conservatives agree that in most cases there should be individual freedom, particularly when it comes to very personal choices about pregnancy and children. But while conservatives differ on public policy for abortions in the first trimester and in cases of incest and rape (which according to the Alan Guttmacher Institute total less than one percent), they agree with some liberals that the state should protect life in the last trimester. Perhaps a majority of liberals, however, would say the state should never intervene on abortion, even when the baby is healthy and viable in the last trimester.
Liberals and conservatives generally agree that the state must intervene to protect innocent human life when it is threatened, and so should prosecute and punish murderers who take the lives of innocent children or adults. So, the individual's right to choose to protect or end a life is not absolute. If there is agreement that a life is human, the individual's right to choose is not final. The state has a responsibility to protect innocent life.
But what about the fetus? Is it a human person? Pro-choice advocates suggest that in the first trimester it is not, at least for the woman who does not want a baby. As the author of the earlier article puts it, "[H]er unwanted fetus is not yet a 'life' -- at least for the first trimester or so -- unless she chooses to give birth to it."
There is no comment on the personhood of the fetus after those first three months, except to say that "the right of a woman to choose -- abortion or life -- remains solidly ensconced in our jurisprudence." This appears to claim that the right to choose abortion is absolute, and that this is ensured by our recent jurisprudence.
But is that true? In Gonzalez v. Carhart (2007) the Supreme Court upheld the constitutionality of the Partial-Birth Abortion Ban Act (2003). This meant that the Court believed it was constitutional for states to restrict abortions in the last three months of pregnancy. In these cases, then, the Court declared that the right to choose abortion is not absolute.
Was it irrational or unconstitutional for the Court to treat the fetus in the last trimester as a human being to be protected by law? Not at all. It had precedent in the monumental decision that is commonly, but mistakenly, assumed to grant absolute license to abortion: Roe v. Wade permits states to restrict abortions during the second trimester "in ways that are reasonably related to maternal health." After viability (which today is about the fifth month),
"the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."
In other words, the decision, which the article calls "the law of the land," declares that the individual right to choose abortion is not absolute, but that there are times when the state can interfere in order to promote "its interest in the potentiality of human life."
This is common sense. A fetus after the fifth month can survive outside the womb, and will be recognized immediately upon birth as a human baby.
One Pew finding notes that 70% of Americans think a woman "should have the right to control her own reproduction." Yet a 2016 Pew survey found that only 29% of Americans believe that abortion should be legal under any circumstances, and 50% think it should be legal "only under certain circumstances." The vast majority of Americans therefore reject an absolute right to choose abortion.
Conservatives differ on whether or how abortion should be restricted in the first two trimesters, and in cases of rape and incest. Yet many liberals should be able to agree with conservatives that in the last trimester, when most of the unborn are viable, the state has a compelling interest in protecting life. Even if some are uncertain of the personhood of the fetus at this late stage, it seems reasonable and right to give it the benefit of the doubt.
Gerald McDermott is Anglican Chair of Divinity at Beeson Divinity School. He is the editor of The New Christian Zionism and author of Israel Matters.