My Four Cents on Abortion (4 cents)

With the Alito hearings starting, abortion policy is on everyone's mind.

It poses some interestng questions.

First, we have an issue that the "left" (which normally favors governmental regulation) wishes the government not to regulate at all, and which the "right" (which normally favors minimal government regulations) wants to the government to regulate completely.

Second, the issue focuses on Roe v. Wade, a thirty year old case which precluded state regulation of abortions under what most people recognize is a relatively weak constitutional theory, and is potentially subject to reversal, or modification, if the Supreme Court is faced with certain facts and an anti-abortion disposition. It has always been vulnerable in this regard, but has been in place for 30 years. Indeed, one of the questions now is whether the precedent set by 30 years of Roe v. Wade, or the legal concept of "stare decisis", should induce the Court not to overturn a decision that today might be decided much differently.

The number of people in the United States today advocating abortion as a matter of right, irrespective of situation or facts, seems to be diminishing. This is because the anti-abortion lobby has been very successful in bringing the negatives of abortion into public view, while the "pro-choice" lobby has been less successful in advocating the opposite position.

But to my mind the most complicating issue today is that the arguments in favor of eliminating or abolishing the right to an abortion has taken on sectarian, religious tones to the extreme.

The Catholic church has long been anti-abortion on the theory (another charged term these days) that life begins at conception. Thus, an abortion is murder and, as I understand it, murdering a "pre-born child" may be worse than murdering any other living person, because the pre-born child has not been baptized (why can't they baptize in utero?), and therefore the afterlife of its soul is in question. For this reason, again as I understand it, the church would, if there were a conflict between saving the life of the unborn child and saving the life of the pregnant mother, save the child at the expense of the mother.

The Jewish position is very different. Under Jewish law, a child is not born until it leaves its mother's body. Although great respect is paid to the fetus, an abortion is not "murder" under Jewish law, and if there is a question of saving the life of the unborn child, or the life of the mother, it is the mother's life that is favored. Just the opposite of the Catholic position. In addition, under Jewish law, abortions are permitted to preserve the health of the mother (physical or mental, under relevant responsa), again the opposite of the Catholic position that there can be no basis for an abortion.

As to Protestant and other non-Catholic Christian denominations, the positions vary greatly, with the more fundamentalist denominations taking positions close to the Catholic position and the more liberal denominations taking positions more alligned to the Jewish position (although for different reasons).

Another difference, of course, is that the Jewish position would oppose governmental regulation on the basis that the Jewish community self-regulates according to its halakhic rules, and that those rules do not govern other communities, which should be left to their own devices. The Catholic/rightwing Protestant position, on the other hand, is a universal position, not permitting other groups to operate by other religious or ethical standards.

If Roe v. Wade were overturned, abortion rights would revert to the states. It would be expected that some states would seek to regulate abortion closely (or eliminate it entirely), and others would leave it unregulated.

Suppose this happens. I would expect that, if say Alabama outlawed abortions, the challenge to the state legislation would be made on a different basis than Roe was decided. It would be made on the basis that this is a law that embodies a particular religious position and thus does not permit others to enjoy freedom of religion. This would be a different issue than the courts would have faced before and, because the anti-abortion positions all seem to the based on particular religious beliefs held by certain denominations, we might be back where we are now, with state regulation of abortion deemed unconstitutional.

Because of the volatility of the issue, however, it would not only be a question of confusion and cost while this battle is being refought, but stands to deepen even further the polarized positions on abortion more and more evident in American society, and have a continuing negative influence on the commonweal.