The Womb and the Casket — The Bookends of Life

Is there any room for common sense about the start and end of human life? One wouldn’t think so, judging by the arguments surrounding abortion. Still, one must try.

The End of Life

The time of the end of a person’s life has not been subject to much controversy, given the finality of rigor mortis. Still, there were some difficulties in arriving at an exact judgement. The funeral tradition of the viewing stems, in folklore at least, from the need to be certain the deceased is really dead. In recorded instances, a person thought to be dead suddenly awakened at his funeral. And sometimes a disinterred coffin was found to have fingernail scratches inside, proving the deceased was not quite dead when buried.

A more practical problem arose from the practice of harvesting organs for transplanting. The organs must be taken as soon as possible after death, but the donor had a vested interest in not having that process begun too early, on the strength of a few moments without a heartbeat. Doctors had an inescapable conflict of interest in the matter, which sometimes provided grounds for the grieving families to later challenge the doctors’ decisions.

What was needed was a defined legal standard for the moment of death which could be objectively measured, and thereby settle the matter for legal purposes. Religious traditions and medical practices were meant to provide a process that removed as much as possible fallible human judgements from that most final of decisions, but they did not suffice as a legal standard in modern times.

“Clinical death”, the cessation of heartbeat and breathing, although commonly employed, was not sufficient as a legal standard, because cases have occurred where people have recovered after many minutes, even 20 minutes, after clinical death. That standard is measurable, but not definite enough.

A legal standard for life and death must be measurable, definite, and generally accepted by all in society — not necessarily believed, or even supported, but accepted. One standard for the end of life meets all the criteria — humans are considered dead when the electrical activity in their brains ceases. When a person “flatlines”, and reasonable efforts to restore function fail, then a person is legally considered dead. Brain activity is measurable, its absence is definite, and no person has recovered after even a minute of “flatline”. [That I have been able to find record of, at least.] For better or worse, that is the standard our society accepts, with little controversy.

Every citizen is free to hold their own beliefs concerning the moment of death of a loved one, but when the patient flatlines, the next stop is the morgue, perhaps after a visit to fulfill the deceased’s wishes regarding organ donation. Private convictions are respected as long as they do not conflict with the legal standard and lawful procedures.

In this way, our society fulfills to the greatest extent possible our respect for human life as well as our need for certainty in our procedures dealing with the deceased.

The Beginning of Life

Would that we could say the same about the beginning of life. Compared to the end of life, our legal and social situation regarding the beginning of life is a mess. Roe v. Wade was a stop-gap ruling to provide some semblance of order to the hodgepodge of laws regarding the time between conception and birth. Yet the hodgepodge continues. There is nothing measurable, definite, or generally accepted by all in society anywhere in this argument about the beginning of human life.

We can’t even agree on the difference between cellular life and fully human life. There are advocates for using the moment of conception, numbers of weeks after conception, beginning of heartbeat, first measurable brain activity, “quickening” (which is the ability of the fetus to move in the womb), response to stimuli, sensitivity to pain, ability to survive out of the womb, birth, separation from the placenta, consciousness, or self-awareness as the moment of being human. (I may have missed some.)

There has been scant philosophical debate about what it means for life to be human life, and whether those understandings can be applied to the developing fetus to support a measurable and definite standard on which we can agree as a society, for legal purposes, when the developing fetus shall enjoy all the rights we as a society recognize as unalienable to all living humans. So far, this minimal debate has produced no fruit.

This question should be of the utmost importance to all of us, as it strikes at the heart of what makes us human. Yet the controversy seems to be limited to which Party’s agenda will advance the most and where the most political power should reside.

The Debate (or not)

What is it that is interfering with any rational national debate about our own humanity, without which we can’t begin to address the developing humanity of our new people between the time of their conception and their birth?

I’ll give you my opinion about that, before we move on. Discussion of the nature of life, especially human life, lies on the intersection of philosophy and religion. That language itself is common to both disciplines. The topics inevitably include matters such as what besides cellular life is necessary to be considered fully human; is there such a thing as unalienable rights; and from where do our unalienable rights derive. Hillary, during the campaign, famously defended killing fetuses even shortly before birth with the statement that a person does not enjoy a right to life before birth, because that is when the right to life is granted. (She was severely criticized for using the word “person” instead of fetus, but not for saying that our rights come from government and are not intrinsic.)

But her’s was a logical answer for those who believe our rights derive from a grant by government and are not unalienable and intrinsic in our human nature, nor derive from Nature’s God. This opposition of worldviews is central to the conflict, and is unbridgeable if we cannot even use the same language of philosophy and religion in the discussion, especially if we dismiss as illegitimate the religious view or the anti-religious view right from the start.

The Core Conflict

And there is the conflict. Those who reject religion and reject the concept of Nature’s God will too often therefore not permit any language in the discussion that is common to both philosophy and religion, because they reject religious ideas as illegitimate. Examine the arguments made in favor of lax restrictions or no restrictions on abortion, and you will find no discussion whatever about the nature of human life, about human rights beyond those granted by government, about what conditions are necessary for life to be human and when those conditions might be met during the development of the fetus. The pro-abortion side will not even utter words related to rights of the unborn prior to birth, because to simply speak that idea out loud confers a legitimacy to that idea that the pro-abortion side disputes.

The religious side, on the other hand, considers religious conviction alone sufficient to settle the debate and form the basis of law. No need to require any civil justification for marshaling the power of the state to constrain the freedoms of the citizens in any aspect of the matter. There is no discussion of any other consideration except the moment of conception as necessary for full humanity, because to even discuss the idea confers a legitimacy to the idea that the anti-abortion side disputes.

I believe it was Aquinas ( if not, it was an early Church theologian of equal prominence) who placed the moment at which the fetus was fully human as the moment of quickening, when fetal movement can be felt by the mother. This is not a casual or arbitrary idea. For that condition to obtain, the fetus must have brain activity, sensory and motive nerve structure, and responsiveness to stimuli — certainly reasonable requirements. This occurs around the third month. But the anti-abortion side, including the Church, will not discuss these ideas. To do so opens the possibility of civilly sanctioned abortion before the fourth month, which the anti-abortion side rejects without debate.

Absent full ventilation of those kinds of considerations, there can be no common grounds for constructing a measureable, definite and generally accepted standard for when the human rights of the developing person will be legally recognized. This conflict, left unresolved, will have the laws see-saw between which side, conception or birth, has the most political power at any given moment. The body of laws will be inconsistent, conflicting, and contentious.

A sound, secular approach would recognize the various viewpoints but seek to resolve the issue in a way consistent with our national principles and values, with who we are and want to be as Americans. Yet the issue has devolved into two irreconcilable viewpoints. The (what I will call) religious view and the (what I will call) anti-religious view are not each without their own difficulties and inconsistencies and inconvenient consequences, drawbacks which any honorable person of those persuasions would seek to discuss and resolve.

Drawbacks of the Religious View

First, we have deal with the pesky question of whether religious ideas or ethics are legitimate at all for a secular society. Let’s step away from the main topic for just a few paragraphs and deal with that question.

Religion in a Secular Society — Legitimate? Our courts are increasingly rejecting any expressions in the public square that have even superficial basis in world religion, so we must first ask whether any views founded in religion regarding the timing of full humanity for the developing new person are legitimate to the process of formulating our nation’s laws.

At the most fundamental level, our Declaration of Independence, our laws, even our most fundamental law — The Constitution — are founded on the values and philosophies natural to our own society, our Judeo-Christian values, and the political theories set forth in the European Enlightenment by such philosophers as Locke, Hobbes, Montesquieu and Rousseau, and were informed to considerable extent by the religious convictions of the Founders. These foundational convictions have been fleshed out over two centuries of judicial rulings and social debate. Religious understanding is woven throughout. It can’t all be undone without destroying our national identity. Atheists don’t like it, but it is reality.

We as Americans have chosen, even if we weren’t aware of it as individuals, these principles and values as our unique American identity. We require that our laws derive from and be consistent with these principles and values. Does this disqualify religious viewpoints in any discussion of law? Yes, if the religious viewpoint stands alone and apart without support from our principles and values; no, if our American principles and values, or who we are and want to be as Americans, happens to be consistent with the religious viewpoint.

The decisive question is why should a proposed law bring the punitive power of the state to bear on some matter? Is there sufficient reason deriving from our American principles and values, apart from any considerations of religious conviction, to curtail the rights and freedoms of our citizens, which is unavoidable in any new law? Religious conviction might well inform debate, but it cannot be the sole source of a law.

An example will clarify. All societies and religions have laws about murder. Hindus believe all life, even that of insects, is sacred. Animal rights groups believe that killing animals and killing humans are equally murder. Animal rights activists are free to consider meat eaters to be murderers, but they are not free to violently defend the chicken against the farmer. We as a society do not find their view to be consistent with our national principles and values, and make no law to that effect.

Fundamental Muslims, some of them, believe that it is permitted to kill a son who converts to another religion, or kill a daughter who dates a Jew or Christian. They are free to believe so, but they are not free in our country to act on that belief. We as a society do not find that view to be consistent with our national principles and values, and those actions conflict with our laws.

In such cases, religious convictions may be very strong, but are not matched in any way by the principles and values that our American society has accepted as our own identity, and therefore we have no laws based on those convictions. This is how it must be in the issue of abortion. The proponents of the religious view and of the anti-religious view, and all other views, have the right to their opinions and beliefs, and the right to conduct their private lives in accordance with those beliefs, as long as they do not violate our laws.

So the answer is: religious arguments are legitimate in the debate and are to be respected, but they are not to be the sole source of civil law. Civil law with sound support in our national principles and values is not invalidated if it also conforms to religious convictions.

Drawbacks of the Religious View I find many problems with the anti-abortion side as argued today from purely religious views. Remember, our goal is to find a measurable and definite standard for the beginning of full humanity, for civil purposes, that is consistent with and derived from our national principles and values.

The problems mainly arise from the religious view that Full Humanity Begins at Conception, that a single cell can be fully a human being.

1) I consider that the view that the single cell which is the just-fertilized egg is fully a human being is a purely religious view, absent necessary support from any objective, non-religious argument. The argument goes that the single cell, the zygote, contains all the necessary human genes and has the potential to, and will, develop into a complete human being, and therefore is fully human from the start.

One problem with that idea is that genetic science has demonstrated that any stem cell in our bodies also contains all the necessary human genes and also has the potential to develop into a full human being (albeit a clone). So far, this has only been accomplished in animals, for ethical reasons, but the point is proven.

If containing all necessary human genes and possessing the potential to develop into a human being is to be declared sufficient to call for the rights afforded full humanity to be enjoyed by that cell, then limiting those rights to only one kind of such cell and not the others is arbitrary, with only a religious standard on which to make the distinction as to which cells deserve such protection. This would be a civil law nightmare, with no secular justification for the state to be involved at the cellular level in the first place; at least regarding civil or criminal law. (It is perfectly proper for the state to be involved in fertilized human cells as a matter of medical ethics or regulation.)

2) Another problem arises from the conclusion of medical researchers (don’t ask me how they do it) that about half of all fertilized eggs do not implant in the womb but are expelled with the menses. And about another half of those that do implant are spontaneously aborted before the woman even knows she is pregnant. Meaning about three out of four allegedly fully human beings (according to the Life-at-Conception idea) do not live past the first several weeks. Or days.

Since most religions hold that human beings are both a physical body and a spiritual soul, that math means that three out of four created souls see the end of their earthly lives in days or a few weeks. That, I think, should be a serious problem for all religions. All religions believe that human life has a purpose; what purpose is fulfilled by a life of only a few days or weeks and consisting of a few cells? Or one cell?

This situation, however, would not constitute a civil difficulty for laws recognizing Life-at-Conception, since no one would even know those three out of four humans ever existed. Which raises the question: what is the point of writing civil laws that recognize Life-at-Conception, except to ratify a purely religious viewpoint?

3) There are, however, significant difficulties for civil society created by any Life-at-Conception laws. Any druggist who sold birth control pills would be guilty of conspiracy to commit homicide, because the mode of action of estrogen pills is to prevent implantation of fertilized eggs, thus killing that cell and thereby killing a fully human being (again, according to the Life-at-Conception idea). And the seller of abortifacients would be guilty of first degree murder. Some Catholics might agree with this consequence, but other religious sects might not wish to see such birth control means criminalized. At any rate, this would be making a crime out of violating what is solely (at the moment) a religious claim concerning the full humanity of the single cell.

Drawbacks of the Anti-Religious View

Let’s first consider the central idea of the anti-religious side that our “unalienable rights” are granted by government, and are therefore enjoyed by each of us at the moment government decides, but not before. (Hillary’s view, as we saw.) What logical consequences derive? Well, obviously, there is the condition that what government grants, government can decide to withhold. The pro-abortion side argues that government withholds the right to life until the moment of birth. Obviously, the “moment of birth” is arbitrary; government could choose some other time; or no time at all.

Then there is the problem that this alleged power is not unique or limited to the case of the unborn; it could as easily apply to the defectives, or those with the wrong genes, or those who develop mental illnesses beyond cure. Or are too old to care for themselves. Or are confused about their gender and are inconvenient to the rest of us. Decide the right to life is fluid and arbitrary, and all manner of tyranny could follow.

Another problem is that there is nothing unique about the right to life in the panoply of our rights. The right to liberty could as easily be arbitrarily granted or withheld. Or any of our other rights. The zeal to enact unlimited abortion by declaring rights to be a grant from government will be the undoing of all our rights.

This whole idea that we have no rights unalienable to ourselves, intrinsic to our humanity, is fraught with dangers. But if we reject that idea, as we ought to for our own preservation, then we must, as honorable people, wrestle with the idea of when we must recognize those rights in each of the new humans that will appear on the stage. Because certainly somewhere between conception and birth, we do arrive as new humans.

Certainly we shouldn’t dismiss out of hand that a thorough debate might lead to the conclusion that true humanity arrives at birth. We ought not presuppose the possibility that conclusion can’t happen. But doesn’t honor require that we actually have that debate and actually determine if the best scholarship leads to that conclusion, and not some other? As it is now, the pro-abortion side simply insists on that conclusion and refuses debate.

Another problem arises. The conditions informing the arguments of the pro-abortion side now deal almost entirely with the mother, her rights and her welfare; control of her body, her reproductive rights, safety during the procedure, access and cost, and so on. Some scant consideration is given to the fathers. But aren’t all of those considerations relevant to how society should best craft its laws after we first establish our measurable, definite, and generally accepted legal standard for when our laws must recognize the human rights of newly developing human being?

Many, if not most, of the arguments from the pro-abortion side relate to how laws on abortion should best be formulated for efficiency and benefit to the mother; the child prior to birth is almost totally ignored in pro-abortion arguments. But first must come the standard which is the subject of this article. Once we determine with the force of law precisely when our laws must recognize the other human being in this matter, the one whose life will end after all, only then can we formulate laws that properly protect the mother’s interests prior to that time, but adequately protect the child after that time.

Prior to that moment in time, the rights of the mother are not in conflict with any soon-to-be rights of the soon-to-be fully human life in development. But after that moment in time, there can arise a common situation in any society, the legitimate rights of two people are in conflict. The rights of the mother and those of her developing child might come into conflict if each of their interests come into conflict. The reasonable resolution of that kind of conflict is a necessary and legitimate obligation of society’s courts and laws.

The Goal of the Debate

The purpose of our debate shouldn’t be to decide whether the religious view or the anti-religious view is correct; that simply can’t be accomplished. The two sides will never give up their worldviews. The goal is to find a measurable and definite standard that we can accept as a society that it best fits with our fundamental American values and the political philosophies upon which our nation was founded; that best accommodates the rights and welfare of both parties, the mother and the child; and that satisfies our civil needs for a workable legal framework for all stakeholders.

It is not necessary that either side believe the standard fully meets their worldview, nor that both sides support it, but it is necessary that both sides will accept the standard for the purposes of civil law. It is highly unlikely that civil law will ever criminalize morning after pills, nor will it ever make the state indifferent to the lives of full term babies still in the womb; but it can rationalize our laws and procedures upon a commonly accepted standard.

Once we have that standard, measureable and definite, which defines when we recognize the full human rights of the newly developing person, then it will be no longer acceptable to resolve any conflict of rights between the mother and the child by disposing of the child.