[Vision2020] Abortion, Common Law, and Fetal Pain

[nickgier at roadrunner.com]

Good Morning Visionaries:

This is my radio commentary/column for the week, commemorating the 38th anniversary of Roe v. Wade.  The full version is attached and all my abortion columns can be read at www.home.roadrunner.com/~nickgier/AbortionColumns.pdf

Honoring a woman's right to choose,

Nick


ABORTION, ENGLISH COMMON LAW, AND FETAL PAIN

With right-wing Republicans dominating the new Congress and more state legislatures, we can expect new threats to abortion rights.  On the 38th anniversary of Roe v. Wade, I would like to focus on Constitutional issues and the fetal pain controversy.

Many conservatives subscribe to the principle of “originalism” as the only way to interpret the Constitution.  This means that we should hold ourselves to the original intent of the authors of the Constitution. The judicial decision can also include common beliefs of late 18th Century America.

Five conservative Supreme Court judges rejected originalism in deciding that corporations are persons, and as such they have free speech rights with regard to campaign contributions.  

When I claim that health care is a right, my critics want to know where that is in the Constitution.  My response is: Where does it say that a corporation is a person? The founders of our country considered only human beings and God as persons. 

God and humans don’t share genes or bodily form, but both have rational minds. The concept of persons as rational beings was incorporated into European law, morality, and religion, including both Protestants and Catholics.

For nearly 600 years English Common Law followed the Jewish tradition in holding that the fetus was not a person until birth.  Ancient rabbis quoted scripture: God “breathed into his nostrils the breath of life, and man became a living being” (Gen. 2:7).

In the 17th Century English jurist Sir Edward Coke ruled that abortion was murder only after the fetus is “born alive,” when “it is accounted a reasonable creature."

In 1765 Sir William Blackstone, agreeing with the Catholic Church, moved the cut-off point back to when the fetus “quickens in the womb.” Catholic canon law was not changed to conception until 1917.

Eight states now have laws that required doctors to read a script on fetal pain to all women considering abortion. Bioethicist Arthur Caplan criticizes such laws because they "reduce the process of informed consent to the reading of a fixed script created and mandated by [conservative] politicians not doctors." 

Women requesting abortion in these states are now subjected, during the most vulnerable time of their lives, to a lecture designed by anti-abortionists and not based on the best medical evidence.

The most recent study on fetal pain was issued the Royal College of Obstetricians and Gynecologists in March 2010. Its conclusion is that "current research shows that the sensory structures are not developed or specialized enough to respond to pain in a fetus of less than 24 weeks."

This supports Roe v. Wade very well: using the best medical evidence, the justices set 22-24 weeks as the point of viability, the point at which the Supreme Court ruled that the state can protect the life of the fetus.

The main problem with the traditional view of personhood is that we now know that animals can show intelligent, emotional, and moral behavior without large brains. Animal fetuses also quicken in the womb; they also become viable; they also have unique genetic identities; and they also feel pain. Furthermore, according to Ecclesiastes, animals are created with the same divine breath (3:19) and therefore have the same souls (Hebrew nephesh; Greek psychē [Rev. 8:9]).

We can no longer make a moral distinction between our lives and those of our fellow creatures. We should therefore reject the fallacy of “specieism,” which privileges humans as the only beings with a serious moral right to life.  

I challenge all of us to embrace a consistent pro-life position that respects the dignity and value of all living beings. If women at abortion clinics have to listen to a lecture about fetal pain, then a similar script should be read out at every slaughter house in the U.S.

Nick Gier taught philosophy and religion at the University of Idaho for 31 years. 
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