Today is the 40th anniversary of the landmark Supreme Court decision Roe v. Wade. That case and its lesser known counterpart, Doe v. Bolton, opened the door for abortion on demand in the United States. Roe v. Wade deduced a right to privacy from the 14th Amendment that extended to a woman’s decision to have an abortion. Doe v. Bolton defined the health of the mother, the cause by which a woman could legally seek an abortion, to include physical, emotional, psychological, familial, and age issues. Thus, almost any reason could be legally permissible for seeking an abortion. Since January 22, 1973, over 55 million abortions have been performed in the United States.

Part of the abortion debate revolves around the idea of when an embryo/fetus/newborn attains the right to life. Various options have been considered, including conception, viability, birth, and self-awareness. The most common answers for pro-choice proponents have been either viability or birth. The most common response for pro-life proponents has been conception.

In light of this tragic anniversary, I want to go to an unusual source for thoughts on the question of when a new human life attains the right to life. Peter Singer is the Ira W. DeCamp Professor of Bioethics at Princeton University. His views on life, abortion, infanticide, and animal rights have shocked Americans for decades. However, Singer offers a stinging critique of traditional pro-choice arguments and an interesting aid to pro-life proponents.

Singer writes:

The central argument against abortion, put as a formal argument, would go something like this:

First premise: It is wrong to kill an innocent human being.
Second premise: A human fetus is an innocent human being.
Conclusion: Therefore it is wrong to kill a human fetus.

The usual liberal response is to deny the second premise of this argument. So it is on whether the fetus is a human being that the issue is joined, and the dispute about abortion is often taken to be a dispute about when a human life begins.

On this issue the conservative position is difficult to shake. The conservative points to the continuum between the fertilized egg and the child, and challenges the liberal to point to any stage in this gradual process that marks a morally significant dividing line. Unless there is such a line, the conservative says, we must either upgrade the status of the earliest embryo to that of the child, or downgrade the status of the child to that of the embryo; but no one wants to allow children to be dispatched on the request of their parents, and so the only tenable position is to grant the fetus the protection we now grant the child.

After considering various options for a morally significant dividing line, Singer concludes:

The liberal search for a morally crucial dividing line between the newborn baby and the fetus has failed to yield any event or stage of development that can bear the weight of separating those with a right to life from those who lack such a right, in a way that clearly shows fetuses to be in the latter category at the stage of development when most abortions take place. The conservative is on solid ground in insisting that the development from the embryo to the infant is a gradual process.

Unfortunately for those of us who agree with Singer on this particular point, he goes on to make the case that infanticide should be legal. He holds to the position that a child does not have the right to life until he has reached a stage of adequate self-awareness. He contemplates that such an adequate stage may not be reached until the age of two or three years old. However, for the sake of the overwhelming negative reaction he might get, he is willing to legalize infanticide up to about one month after birth. In my opinion, the outrageous conclusions of his own argument actually help to strengthen the pro-life argument even further because it becomes the only plausible position.

Despite the fact that Singer’s ultimate conclusion is just as horrendous as legalized abortion, his critique of the classic pro-choice argument is very helpful. As this debate continues in the public square, it might be useful for pro-lifers to take note of Singer’s critiques and employ them where appropriate.

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Peter Singer, “Taking Life: The Embryo and the Fetus,” (from Practical Ethics) in Writings on an Ethical Life (New York: HarperCollins, 2000), 146-64.

Should abortion providers be protected by a conscience clause ensuring they are not “marginalized” for providing abortions? This idea has been proposed by Dr. Lisa Harris of the University of Michigan. Richard Doerflinger responds to this question in a recent article on the Public Discourse. Here are some of the highlights:

[L]et us concede that most other conscience laws, at the state and federal level, speak only of a conscience right not to assist or perform abortions (and sometimes other procedures such as sterilization). Why haven’t Dr. Harris’s allies in Congress also fought over the last four decades to make these laws double-edged?

The most obvious answer is that they have seen no need to do so, because, as our highest court proclaimed in 1973, those who want to perform abortions already have the freedom to act as they wish. The Supreme Court’s ruling in Roe v. Wade, reaffirmed in cases such as Planned Parenthood v. Casey (1992), has barred government at any level from prohibiting (or as Casey says, imposing an “undue burden” on) a woman’s decision to have an abortion, or a doctor’s decision to perform that abortion, at any time up to fetal viability. Even after viability, the doctor must be free to decide that an abortion is needed for the woman’s “health” (defined to include all factors—including physical, emotional, psychological, familial, and the woman’s age—relevant to her “well-being”), and act accordingly.

Conscience laws have been needed since 1973 precisely because this new “right” of abortion seemed so absolute, so sweeping, that its proponents insisted it should be enforced as a kind of entitlement: When a woman wants an abortion, doctors and hospitals that disagree must abandon their own consciences and serve her wish. Congress and the vast majority of states responded to this claim, in the years following Roe, to affirm that the law’s protection of the woman’s decision does not deprive everyone else of their rights.

Some believe that a doctor’s refusal to perform an abortion forces a woman to act against her will. Doerflinger responds:

By contrast, if government or my employer makes me agree to do something my conscience tells me is gravely wrong, I must directly violate that negative norm—for example, the norm against killing the innocent. I have sacrificed my moral integrity. I have made myself, in my own moral judgment, into a person who kills. It is absurd to say to a pro-life physician: “No problem. You can still refuse to do an abortion next week, or at your medical practice down the road.” Further, if a doctor stands by his or her conscientious refusal, that infringes no one else’s conscience: It simply takes this doctor out of the picture, and forces no one else to do anything at all.

Someone might say: Yes it does. It forces the woman to seek her abortion elsewhere. But that is simply false. The doctor is not making her seek an abortion at all, and may be perfectly willing to offer assistance that in the doctor’s judgment is much better than abortion for the health of her and her child.

Finally, Doerflinger states that the government’s interest is not in maximizing abortions but in protecting life (even though that may not seem to be the case on the surface). He states:

No national governmental body—whether legislative or judicial—has said that government has an interest in maximizing abortions. Nor does public opinion support such a claim, as most Americans (male and female) generally describe themselves as “pro-life,” and few people say there should be more abortions than there already are.

On this point the Supreme Court’s own stance is widely misunderstood. Since 1973 the Court has ruled that government generally may not prohibit abortion. But it also has consistently acknowledged government’s legitimate secular interest in “encouraging childbirth over abortion.” And it has said this interest justifies bans on public funding of abortion, and a variety of regulations and restrictions that fall short of a ban on abortion.

In upholding a ban on federal abortion funding, the Court explained the government’s interest this way: “Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life” (Harris v. McRae, 1980). This cryptic reference to the unborn as having a “potential life,” a term with no clear meaning, has given way in later cases to a straightforward recognition that by regulating abortion “the State . . . may express profound respect for the life of the unborn” (Planned Parenthood v. Casey, 1992) (emphasis added).

In its most recent abortion decision, Gonzales v. Carhart (2007), the court upheld a federal ban on partial-birth abortion, a law that it said “expresses respect for the dignity of human life.” Here the justices reaffirmed government’s “legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”

In short, our laws—and even the Supreme Court’s jurisprudence—do not treat performing an abortion as something that is just as good or “conscientious” as delivering a live baby instead. Government has an interest in promoting the latter and discouraging the former. Lawmakers have no constitutional mandate, and the public has no desire, to treat them as morally equivalent.

The entire article is worth your time, especially as we approach the 40th anniversary of the Roe v. Wade decision on January 22.

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Richard M. Doerflinger, “Conscientious Abortions? We Don’t Need Laws Protecting Abortionists,” The Public Discourse, January 16, 2013.