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Abortion is back in the headlines with above-thefold coverage of the Dobbs v. Jackson Women’s Health Organization case now on the docket of the Supreme Court of the United States (SCOTUS). It tests the constitutionality of a 2018 Mississippi state law — the Gestational Age Act — which bans any abortion after the first 15 weeks of pregnancy except “in medical emergencies or for severe fetal abnormality.”¹

Most legal experts consider this case to be a direct challenge to the 1973 SCOTUS decision in Roe v. Wade that guaranteed the right of women to have an abortion during the first trimester, until fetal viability at around 23 weeks, after which the state could protect its interest in the “potential life” of the fetus and regulate abortion to that end, including banning it altogether in the third trimester save for the life or health of the mother.²

If overturned, the legal right to an abortion would revert to being a states’ rights issue. Some states, such as California and New York, would, no doubt, guarantee full abortion on demand, but a dozen states have passed laws that would ban abortion from the point of conception. And according to the Guttmacher Institute, as of December 2021, an additional 21 states are poised to ban or severely curtail access to abortions.³ The decision in Dobbs v. Jackson WHO, expected to come down from SCOTUS mid-2022, will be a game changer of historic proportions.

I believe we can find common ground between pro-life and pro-choice advocates by focusing on how to reduce unwanted pregnancies.

What follows is the case for choice based on: (1) the binary-thinking fallacy of the pro-life argument that human life and personhood begin at conception (a continuous-thinking analysis shows that they do not), (2) even if we agree that a fetus is a human being, what we have then is a conflicting-rights issue between the rights of the mother and the rights of the fetus, so (3) if rights are to be legally protected for one over the other, a stronger case can be made for a woman than a fetus because, (4) an actual human being and rights-bearing person must take precedence over a potential human being because, (5) the fundamental right of bodily autonomy is one that has historically been expanding to include all adult humans regardless of race or gender because, (6) left unprotected, rights-bearing groups tend to restrict the freedoms of those in non-rightsbearing groups, historically most notably of men over women. In the end, I believe we can find common ground between pro-life and pro-choice advocates by focusing on how to reduce unwanted pregnancies.

The Personal and the Political

There has been, arguably, no more contentious moral issue of the past half century than abortion, where morality, politics, and science are confoundedly conflated. Moral issues are personal. Political issues are social. Scientific issues are factual. Herein lies
confusion. Pro-choicers believe that whether a woman decides to abort a fetus or not is a personal moral issue in which the rights of the mother take precedence over the rights of the fetus.⁴ Pro-lifers want to make it a political-moral issue in which the rights of the fetus take precedence over the rights of the mother and that society determines what a woman can or cannot do with her body when it comes to her fetus.⁵

When pro-lifers and pro-choicers square off to debate, they are often talking at cross purposes. Pro-lifers speak of the “murder” of innocent fetuses and attack their debate opponents on the grounds that murder is wrong, as if pro-choicers accept murder as moral. In fact, pro-lifers and pro-choicers all agree that murder is immoral (and, by definition, illegal, since the word means the wrongful killing of one human being by another). What they disagree about is whether aborting a fetus constitutes murder. This apparent moral question is actually a factual question, because abortion can only be considered murder if it means taking the life of a human being, and when a fetus becomes a human in this sense of a legally protected person is a question that is difficult to resolve, as Supreme Court Justice Harry A. Blackmun noted in his decision in the SCOTUS 7–2 majority ruling in the 1973 Roe v. Wade case: “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.”⁶

The issue, it seems to me, is more one of logic than it is of knowledge. Moral and political decisions are grounded in binary logic in which unambiguous yeses and noes determine political truth, either at the ballot box or in the legislature. Science is grounded in the continuous thinking of fuzzy logic in which ambiguous probabilities determine provisional truths. Let’s unpack this further.

When Does Life Begin?

A major obstacle to answering this question is the binary thinking that forces us to pigeonhole into one of two distinct categories a problem best conceived as a continuous scale. Pro-life proponents argue that human life begins at conception; before conception there is no life — after conception there is. It’s a compelling black and white argument gainsaid by the reality of life’s continuity in which we may assign a fractional probability to human life — before conception 0, the moment of conception .1, multi-cellular blastocyst .2, one-month old embryo .3, two-month old fetus .4, and so on until birth, when the fetus becomes a 1.0 human life (and legal person). It is a continuum from sperm and egg, to zygote, to blastocyst, to embryo, to fetus, to newborn infant.⁷

There is no rational or scientific justification for equating abortion with murder.

While the step from 0 to .1 may intuitively seem qualitatively different from what came before — egg and sperm — neither the zygote nor the blastocyst is an individual human (much less a person) because they might split to become twins, or develop into less than one individual and naturally abort.⁸ Although an eight-weekold embryo has recognizable human features such as face, hands, and feet, neuroscientists now know that at that stage neuronal synaptic connections are still developing, so anything even remotely resembling human thought or feelings is impossible. After eight weeks, embryos begin to show primitive response movements, but between eight and 24 weeks (six months) the fetus could not exist on its own because such critical organs as the lungs and kidneys do not mature before that time. For example, air sac development sufficient for gas exchange does not occur until at least 23 weeks after gestation, and often later, so independent viability is not possible.⁹ It is not until 28 weeks, or approximately 77 percent of full-term development, that the fetus acquires sufficient neocortical complexity to exhibit some of the cognitive capacities typically found in newborns. Fetus electroencephalogram (EEG) recordings with the characteristics of an adult EEG appear at approximately 30 weeks, or about 83 percent of full-term.¹⁰

What about pain perception and consciousness? In a 2018 article on “Personhood and Abortion Rights” in Skeptic, psychologist Gary Whittenberger presents substantial medical and scientific evidence that the perception of pain does not develop until around 20–24 weeks of gestation, and something resembling consciousness does not develop until 28–36 weeks of gestation.¹¹ Although medical advances may extend fetal viability by a few days or weeks (a 2015 JAMA article reported that only 11 percent of babies born before 24 weeks survived “without major morbidity”¹²), along this continuum, we see that the fetus’s capacity for anything like human cognition does not appear until well into the third trimester. Since abortions are almost never performed after the second trimester — and before that period there is no evidence that the fetus is a thinking, feeling human individual — it is reasonable to provisionally conclude that abortion is not comparable to the murder of a conscious sentient being after birth. Thus, there is no rational or scientific justification for equating abortion with murder.

One objection to this line of reasoning is that science and technology have so “fuzzified” the boundaries between what were once reasonably discrete categories (even in my fuzzy analysis) that it becomes difficult to justify precisely any specific point in time at which to draw the line. Unborn babies are now being treated as patients, with complex surgeries being performed in the womb for such maladies as spina bifida (an opening in the spine through which the spinal cord dangerously emerges), congenital diaphragmatic hernia (the fetus’s abdominal organs merge into the chest), and congenital cystic adenomatoid malformation (cysts in the fetus’s lungs). Fetuses that would have been aborted before are now being saved, and they are treated medically as little people.¹³ On the other end of the spectrum, there are adults whose cognitive capacities are so severely compromised through brain damage that they cannot think at all. They may even lie comatose, completely brain dead, and yet still retain rights as humans.

Potentiality is not the same as actuality, and moral principles must apply first and foremost to actual persons over potential persons.

My response to this argument is that most fetal surgery is done well into the third trimester, when abortions are rarely performed anyway. And brain-damaged adults already retain rights as humans, so their rights cannot be taken away.

Potential Lives, Actual Lives, and Bodily Autonomy

Still, the argument is made that a fetus is a potential human being, since all of the characteristics that make us persons are front-loaded into the genome and unfold during embryological development. Yet, potentiality is not the same as actuality, and moral principles must apply first and foremost to actual persons over potential persons. Given the choice between granting rights to an actual person (an adult woman) or a potential person (her fetus), it is rational to choose the former on the grounds of both reason and compassion. We know adult women can think and feel; we don’t know that about fetuses. Although more than half the states in the US now have laws to protect unborn victims from violence — as in the Unborn Victims of Violence Act that treats the killing of a pregnant woman and her fetus as a double homicide — the law does not treat fetuses and adults alike in any other manner. Once again, binary thinking lures us into treating a mother and her fetus as the same, whereas continuous thinking allows us to see the substantive differences.

The reason has to do with bodily autonomy, or the right to self-determination of oneself. The abolition of slavery and torture was ultimately brought about by the recognition and acceptance of the right to bodily autonomy and self-determination, as was the expansion of rights during the movements to achieve civil rights, women’s rights, gay rights, and broader LGBTQ rights. What I do with my body is no one else’s business, and the pro-life movement embraces this principle in most other areas. Conservatives and Christians, for example, resist vaccine mandates under this principle — as witnessed in the “my body, my choice” signage during the COVID-19 pandemic — and they hold the Second Amendment right to own guns for self protection as sacrosanct. Consistency in applying the principle of bodily autonomy and self-determination should further nudge pro-lifers toward the pro-choice position.

Herein, we find another important distinction to make in the abortion debate, and that is the difference between a human and a person. A human is a member of the species Homo sapiens. A person is a member of a social group or society with legal rights and responsibilities and with moral value. Even if one could justify a fetus as being a human (even if only a potential human), that still does not make it a person. What makes it a person is the granting of legal rights and responsibilities and moral value by the laws governing that society. Pro-lifers are encouraged by changes in the law in many states that grant personhood rights to the unborn, in cases where a pregnant woman has been murdered and the fetus dies as well. No less than 28 states now criminalize harm to a fetus, and many more are moving to pass the Unborn Victims of Violence Act, which in 2003 was renamed the Laci and Conner’s Law after the notorious murder trial of Scott Peterson, charged with double homicide in the killing of his wife and unborn child.¹⁴ Legally, if killing a mother and her fetus is double murder, then killing a fetus by itself is single murder. This would make abortion a crime of murder. This is a very knotty problem to unravel.

All of this ratiocination, it must be said, is not to claim that abortion is moral, only that is it not immoral. And this brings us back to where we began in making a distinction between individual and political morality. If abortion is not murder, then it is not illegal from a political position. But if a woman decides that even though having a child may burden her physically and financially it is still more important to her to grant life and liberty to her unborn child, then that is her choice to make, not the state’s. In other words, one may be politically pro-choice and personally pro-life. In the end, abortion must remain a personal moral choice.

Hardness of Life not Hardness of Heart: Infanticide and Abortion

Anthropologists and historians tell us that infanticide has been practiced by all cultures everywhere in the world throughout history, including and notably by adherents of all the world’s major religions. Historical rates of infanticide have ranged from 10–15 percent in some societies to 50 percent in others, but none lack it entirely.¹⁵

Like all human behavior, infanticide has multiple causes, and the evolutionary psychologists Martin Daly and Margo Wilson unearthed some of the reasons in their study using an ethnographic database of 60 societies around the world. Of the 112 cases of infanticide in which anthropologists recorded a motive, 87 percent supported the “triage theory” of infanticide, which posits that mothers must make hard choices when times are hard (i.e., they kill their children when resources are too scarce to support another infant), a concept well captured in Edward Tylor’s 19^th-century anthropological observation that, “Infanticide arises from hardness of life rather than hardness of heart.”¹⁶

Nature is not infinite in its resources and not all organisms that are born can survive. When conditions are difficult, parents, especially mothers, must decide who is most likely to survive — including future potential children who may fare better when conditions are improved — and sacrifice the rest. Daly and Wilson’s survey turned up these reasons for infanticide: disease, deformity, weakness, a twin when parents have only enough resources for one, an older sibling too close in age for resources to support both, hard economic times, no father to help raise the child, or because the infant was fathered by a different sexual partner.¹⁷

In Eunuchs for the Kingdom of Heaven, Uta Reinke-Hannemann notes how widely infanticide was practiced in ancient Greece and Rome, and the Catholic Church’s prohibition against it goes back to Middle Ages.¹⁸ During the historical period of the early rights revolutions, both church and state tried to do something to curb infant killings without addressing the underlying causes. Injunctions were approved and laws were passed, but just as in the old pre-Roe days of back alley abortions, if a woman didn’t want her baby, there was little anyone could do about it. Mothers would “accidentally” roll over on top of their infants during sleep (called “overlying”), or they dropped them off at foundling homes where the business of infant disposal was swift and private. Wet nurses and “baby farmers” were also tasked with the business of baby removal. It was reported that in mid-19^th century London, public parks and other spaces were the site of as many dead babies as dead dogs and cats.

While it may seem unlikely that if Roe v. Wade is overturned and most states ban the practice that we will see the return of infanticide, but given our species’ history it is certainly not impossible, so this too must be factored into the abortion debate, along with the more likely prospect of illegal abortions on a black market. We should remember what happens when people want something and there is no free market exchange for it: black markets develop in response (prostitution and drugs being the most salient examples). Banning abortion will not end the practice. What will?

Problem Solving Instead of Issue Moralizing

However one frames the issue of abortion — prolife, pro-choice, or pro-life personally and prochoice politically — the more important question in the context of moral progress is identifying the problem to be solved. The problem is not abortion per se, but unwanted pregnancies that lead people to choose abortion or infanticide, or if carried to term, orphanages and adoption agencies. What can be done to attenuate unwanted pregnancies? In brief, contraception and education.

A comprehensive international study on the relationship between contraception and abortion conducted by Cicely Marston from the London School of Hygiene and Tropical Medicine concluded:

In seven countries — Kazakhstan, Kyrgyz Republic, Uzbekistan, Bulgaria, Turkey, Tunisia and Switzerland — abortion incidence declined as prevalence of modern contraceptive use rose. In six others — Cuba, Denmark, Netherlands, the United States, Singapore and the Republic of Korea — levels of abortion and contraceptive use rose simultaneously. In all six of these countries, however, overall levels of fertility were falling during the period studied. After fertility levels stabilized in several of the countries that had shown simultaneous rises in contraception and abortion, contraceptive use continued to increase, and abortion rates fell. The most clearcut example of this trend is the Republic of Korea.¹⁹

Figure 1: This data set from South Korea demonstrates how granting women the right to use contraception caused a dramatic decrease in the number of abortions, along with the fertility rate, which has additional benefits for the progress of humanity in creating a sustainable world.²⁰

Figure 1 demonstrates this for South Korean data. Abortion rates there took some time to start their decline because for a few years women relied on more traditional but significantly less effective methods of birth control, such as withdrawal. But when supplanted by reliable methods, pregnancy rates tumbled, thereby lowering the demand for abortions.

A similar effect occurred in Turkey when abortion rates dropped by almost half between 1988 and 1998 (from 45 to 24 per 1,000 married women) even though the overall rate of contraceptive use remained stable. A study conducted by Pinar Senlet, a population program advisor at the U.S. Agency for International Development, however, revealed that there was a shift from traditional, often unreliable forms of birth control to more modern, and therefore, more reliable methods. “Marked reductions in the number of abortions have been achieved in Turkey through improved contraceptive use rather than increased use.” In short, Turkish couples abandoned natural and unreliable birth control methods in favor of condoms and more effective means of contraception.²¹

Like all social and psychological phenomena, rates of contraceptive use and abortions are multi-variable — many factors are operating at once, which makes inferring direct causal links problematic. When it comes to human behavior, it is almost never as simple as “when X goes up, Y goes down,” and that is certainly the case for contraception and abortion. Different nations and states have different laws and regulations that affect accessibility to both abortions and birth control technologies. Some countries have higher rates of religiosity than others, and this too influences to what extent women or couples use family planning techniques. Socioeconomic forces and poverty rate differences between countries and states also confound conclusions.

But as I read the data and analyses, here is my interpretation: when women have limited reproductive rights and no access to contraception, they are more likely to get pregnant and this leads to higher fertility rates in a country and more abortions when the pregnancy is unwanted. When women’s reproductive rights are secure and they have access to safe, effective, and inexpensive birth control, as well as access to safe, legal abortion, they rely on both strategies to gain control over their family size. So, for a period of time after the legalization of abortion and access to contraception, both rates increase, in parallel. But once fertility rates stabilize — once women feel confident in controlling their family size and their ability to raise a child — contraception alone is often all that is needed, so abortion rates decline.

Just Say No?

Why can’t people “just say no” when it comes to sex — that is, use abstinence as a form of birth control, or time their sexual encounters for when it is “safe” during a woman’s natural monthly cycle? They can, of course, and some do, but as the old joke goes: “What do you call couples who use abstinence, withdrawal, or the rhythm method of birth control? Parents.”

In theory, abstinence is a foolproof method of preventing pregnancies just as starvation is a foolproof method of preventing obesity. In reality, the desire to love physically and to bond psychologically is fundamental to who we are as human beings; and the sex drive is so powerful, and the pleasures and psychological rewards so great, that recommending abstinence as a form of contraception is, in fact, to recommend pregnancy by default. In a 2008 study descriptively titled “Abstinence-Only and Comprehensive Sex Education and the Initiation of Sexual Activity and Teen Pregnancy,” the University of Washington epidemiologists Pamela Kohler, Lisa Manhart, and William Lafferty found that among never-married American adolescents aged 15–19 years, “Abstinence-only education did not reduce the likelihood of engaging in vaginal intercourse, but comprehensive sex education was marginally associated with a lower likelihood of reporting having engaged in vaginal intercourse.” The authors concluded: “Adolescents who received comprehensive sex education had a lower risk of pregnancy than adolescents who received abstinence-only or no sex education.²²

A 2011 PLoS article analyzing “Abstinence-Only Education and Teen Pregnancy Rates” in 48 U.S. states concluded that “increasing emphasis on abstinence education is positively correlated with teenage pregnancy and birth rates,” controlling for socioeconomic status, educational attainment, and ethnic composition.²³

Most revelatory is a 2013 paper titled “Like a Virgin (mother): Analysis of Data from a Longitudinal, U.S. Population Representative Sample Survey,” published in the British Medical Journal, reported that 45 of the 7,870 American women studied between 1995 and 2009 said they became pregnant without sex. Say what?

Are we to believe that Biblical-level miracles are afoot in the bedrooms of teenage girls? They were twice as likely as other pregnant women to have signed a chastity pledge (but apparently not an honesty pledge), and they were significantly more likely to report that their parents had difficulties discussing sex or birth control with them. Although the researchers admitted that, “Scientists may still face challenges when collecting self-reported data on sensitive topics,” my point in citing this data is that young women who are pressured to “just say no,” rather than having been given solid information to avoid pregnancy should sexual intercourse occur, are more likely to both get pregnant and to lie about how it happened.²⁴

Here is how Merritt Tierce explained the abstinence- only problem in a 2021 New York Times magazine cover story on “The Abortion I Didn’t Have.” Attending a Christian college and headed for Yale Divinity, she found herself attracted to a “kind, gentle, handsome, friendly, warm and funny” fellow student that led to a sexual relationship, for which their religion failed to prepare them:

Illustration by Izhar Cohen

When we had sex, we couldn’t use condoms, because having them around would have been admitting an intent to sin or an expectation of fallibility. For the same reasons, I couldn’t take birth-control pills or use any other form of contraception. To prepare to sin would be worse than to break in a moment of irresistible desire. To acknowledge a pattern of repeatedly breaking, of in fact never failing to break, would have meant acknowledging our powerlessness, admitting we could never act righteously. Our faith trapped us: We needed to believe we could be good more than we needed to protect ourselves. As long as I didn’t take the birth-control pill, I could believe I wouldn’t sin again.²⁵

Such programs don’t work because our present selves who commit to not having sex in the future collide with our future selves who become weak in the passion of the moment. As with diets, it’s easy to commit to foregoing sweet, rich, and fatty foods when you’re satiated or the next meal is some significant time in the future. Filling out the hotel meal card in the evening for breakfast tomorrow it is easy to check the boxes for oatmeal and fruit, but go down to the buffet and feast your eyes (and nose) on the bacon, sausage, eggs, bagels with cream cheese, and all self-control weakens. As it is with the basic hunger drive, so it is, only an order of magnitude greater, for the equally basic sex drive. Filling out the religious abstinence-only pledge on a Sunday morning is one thing; fulfilling that pledge in a passion-filled Saturday night is another thing entirely. As Augustine of Hippo declared to the almighty, “Lord, make me chaste and celibate — but not yet.” Or as Oscar Wilde admitted, “I can resist everything, except temptation.”

The opposite of an abstinence-only program would be a reverse test of my thesis, and here we could not find a better social experiment than in then communist Romania. When the dictator Nicolae Ceaușescu came to power in 1965, he hatched a scheme for national renewal by severely restricting abortions and the use of contraception in order to increase his country’s population. It worked. When abortion had earlier been legalized in Romania, in 1957, 80 percent of pregnancies were aborted, primarily because of the lack of effective contraception. A decade later the fertility rate had fallen from 19.1 to 14.3 per 1,000, so Ceaușescu made abortion a crime unless a woman was over 45, had already delivered (and raised) four children, was suffering dangerous medical complications, or had been raped. The birth rate promptly shot up to 27.4 per 1000 in 1967.

Despite the dictator’s punishments for “childless persons” (monthly fines withheld from wages) or for those with fewer than five children (the imposition of a “celibacy tax”) and rewards for especially fertile mothers with a “distinguished role and noble mission” (state-sponsored childcare, medical care, maternity leave), if the people don’t want more babies, you can’t stop them. The result was a social catastrophe of epic proportions, as thousands of babies were abandoned and left to the care of a state that was inept, corrupt, and broke. More than 170,000 children were dumped into over 700 stark state-run institutional orphanages, and over 9,000 women died due to complications from black-market abortions.

The effects are still being felt today as many of those orphaned children are now adults with severely impaired intelligence, social and emotional disorders, and alarmingly high crime rates. The book Romania’s Abandoned Children is a moving account of this tragedy that should be read by anyone with pretentions toward social engineering and the restriction of women’s right to choose.²⁶

This article appeared in Skeptic magazine 27.2
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Why You Should Be Pro-choice as a Christian or Conservative

While I’m citing statistics, one more is relevant to this discussion: according to the National Institutes of Health, childbirth is 14 times more dangerous than an abortion.²⁷ This fact provides a rebuttal to the argument “What if a young woman aborts a baby who would have gone on to become a doctor and find the cure for cancer?” A rejoinder is, “What if a young woman who would have gone on to become a doctor and find the cure for cancer dies in childbirth?”

For indignation is so easy and satisfying a mood that it is apt to prevent one from attending to any facts that oppose it. If the reader should object that I have abandoned ethics for the false doctrine that “to understand all is to forgive all,” I can reply that it is only a temporary suspense of ethical judgment, made because “to condemn much is to understand little.”²⁸

It’s time we all put our indignation aside and opt for understanding over condemnation.