As I wrote last week, Measure 1 is one of the November ballot measures that is generating a lot of discussion, but not necessarily discussion over what Measure 1’s purpose is.
The supporters of Measure 1 are pretty upfront about their goals: they want to limit the ability for judges to overturn North Dakota laws restricting abortion.
Opponents of Measure 1 have generally avoided making the conversation about abortion, but make no mistake, that is what Measure 1 is about.
Let’s have that conversation. I want to spend the next few weeks addressing different facets of the abortion issue, and how we might deal with it in our society. It’s a topic that upsets just about everyone, and my only purpose in writing is to perhaps frame some of the discussion a way that you may not have thought about before.
Abortion is a problem in our society because it is a conflict of rights.
In a previous article where I wrote about the Hobby Lobby decision, I discussed negative rights, and how these are the only proper and true rights in our society.
Often, negative rights don’t conflict with each other.
Abortion is one case where they do, and it has our nation tied up in fits. Each individual judges the situation differently, because he is put in the unenviable position of having to decide which rights are to be violated. The stakes are high for both parties and there’s not a satisfying answer.
Let’s discuss the two rights, and how they conflict.
An adult woman should have full control over every aspect of her body. Nobody should be able to tell her what she can or cannot do to herself. This is the right of self-ownership, and it is a specific case of property rights – the right to own and therefore control something. If an adult woman doesn’t even control her own body, how can she think of herself as a free individual in our world? When a woman is sexually assaulted, or murdered, or has anything forcefully done to her body that is against her wishes, her self-ownership is being violated.
All governments have laws that attempt to protect people from these gross violations of their self-ownership, in the egregious cases of murder, rape, assault, etc.
Actions and policies that seem like a denial of self-ownership deeply upset most of us, whether they take the form of dress codes, or organizations mandating hair styles, or laws governing what you can eat or drink, or even laws that govern what information you can read. Governments don’t have as good of a record here, even though these are also violations of the right of self-ownership.
Whether they know it or not, self-ownership is where most abortion advocates, or “pro-choice” folks, want to focus the conversation.
But if an adult woman has self-ownership, what about a human child? We understand that it is usually a crime to kill humans of any age, but how many of us have asked “why?”
As mentioned earlier, killing someone against their wishes is the ultimate violation of their self-ownership. Not only does the act of killing them violate their wishes regarding their own body, it actually destroys their body – their property – it destroys them, such that they are never again able to make decisions for themselves.
All governments have laws that attempt to protect children from being murdered.
The case of government protection of children is interesting, because legally, children aren’t fully self-owned.
For instance, we understand that if a two year old tells you that you can run over them with your car, you cannot actually run over them. They may have appeared to have granted you permission to do something to them, and if they were the full and absolute owners of their bodies, you wouldn’t be violating their wishes; you wouldn’t be violating their right of self-ownership because you had their permission.
However, we understand that two year olds cannot give this permission, because they are not fully developed rights owners. The same thinking is behind age of consent laws that govern how old children must be before they can legally consent to have sex, and laws that indicate that children cannot legally enter into written contracts. A similar variation of this idea is that adults can be declared legally unfit to sign paperwork or to even stand up for themselves in criminal trials. These people have rights, including the right to not be aggressed against, but society has concluded that they cannot consent to waiving these rights because they are of insufficient mental capacity to be the proper and full steward of their own self-ownership.
We protect and value the body and life of children, but they are not fully self-owned until they are adults of sound mind. Until then, the government takes an interest in seeing that their rights are protected even from themselves. For this purpose, the government usually resorts to guardians, who have a legal role in determining what the child will do, even against the professed wishes of the child.
The point of this explanation is that like adults, human children also have the negative right to not have harm done to their bodies against their wishes, and they have this right even at so young an age that they cannot understand harm, death, or consent.
When exactly, then, does a human child gain the rights that the state feels it must protect and steward until the child has become a legal adult?
Americans don’t agree on this yet.
Clearly, a baby that has been carried to the full term of 40 weeks and then delivered naturally is a human being, and its rights should be protected.
Clearly, a female egg that has not yet been fertilized, and has only half the chromosomes needed to define a genetically unique human, and which is not undergoing cell division, is not a human being, and does not have rights.
So, sometime between unfertilized egg and full term birth, we start dealing with a human being that should have her rights legally protected.
Now we get into the trick business of where to put “the line” – the line that says where human rights begin.
One idea that was given legal consideration in the original Roe v. Wade decision was the “age of viability”. Essentially, the age of viability is the age of the unborn baby, usually given in weeks, at which point the baby is old enough to survive outside the mother’s womb.
The great news is that medical science just keeps getting better. The current record is 21 weeks gestation – a baby that was born at 21 weeks has turned into a healthy adult. That record is less than 30 years old, and at the time of Roe v. Wade, no human born that early had ever survived.
I have some personal experience with early infant viability, as my twins were delivered at 26 weeks gestation. They weighed 2 pounds each. When they were born their skin was nearly transparent, and their eyes had no color; there was no definition on the front of their eyeballs. They couldn’t see because their eyes weren’t done forming. But they could hear, and touch, and cry. Shortly after my daughter was medically stabilized, she was able to clasp her tiny hand on the tip of one of my fingers, which she held on to for a while. I say “on” because her hand was not big enough to close around my finger tip.
It is abundantly clear to me that my twins were already human beings at 26 weeks gestational age, and should have been afforded the full protections our government affords to all humans. I don’t want to meet the kind of monster that could walk into a hospital NICU full of 23, 24, 25, and 26 week babies and pronounce, “Alas, there are no humans here”.
Let’s agree that human babies acquire their rights no later than 21 weeks gestation – because there are human beings walking around who were born that early.
At the other end of the gestational cycle, we know from IVF clinics that a human embryo can survive its first 8 or 9 days entirely outside the mother’s womb, before it is transferred during the conclusion of the IVF procedure. So today the window of time that a developing baby _has_ to be in a human womb is from about 1 week to 21 weeks. That’s a 20 week window where I guess a baby goes from unviable to viable.
What will it mean to talk of viability when we have the ability to take today’s IVF embryos all the way to full gestation without ever introducing them to a natural womb? Isn’t every baby “viable” in a world like that? Isn’t every embryo viable in a world like that?
Let’s set the question of when life begins aside for a moment. We have a problem to deal with: we know that life begins, and we know that living humans have rights that our society tries to protect. By considering the viability argument, as was done in Roe v. Wade, we should probably conclude that those rights should be in effect by 21 weeks gestation. That’s enough clarity for the time being.
The right of developing babies to be protected against violence, which is an artifact of the right of self-ownership, is where most pro-life folks want to direct the conversation.
Both sides are right. Both sides are actually adhering to the same principle: Self-ownership. In conflict are the self-ownership of the mother and the self-ownership of the child.
This is the conflict of rights. With current medical science, it is intractable. To resolve the situation of a woman that doesn’t want a baby inside her, somebody’s rights are going to be violated. Either the baby stays and the mother’s self-ownership is violated, or the doctor kills the baby and the baby’s self-ownership is violated.
How do you decide?
Conflicts between humans is one of the key things that our government is supposed to help us deal with. We’ll talk about that next time.