In our polarized public discourse, abortion is one more yes-or-no, for-or-against issue. In this dispute – there is no debate, only dueling invectives – “abortion” is treated as a singular, fundamental thing, a self-contained element like an atom. The Supreme Court, in the Dobbs decision, featured one side divining, essentially, that the Constitution gave no grounds to allow this thing, while the other side stood on the previous case that gave conditional allowance.
But the construct of “abortion” as a topic of discourse does not truly deal in the fundamentals. America’s bedrock principle, shared by all and embedded in our founding, is that all persons are equally endowed with rights they could not give away if they wanted, and that government exists to secure those rights. A right to abortion, and any public rules over them, deal in the competing rights of fetuses and host mothers.
If discourse treats “abortion” as a thing in question, then we have two sides hopelessly divided, and whether we are a single nation is in real question. If instead we start with what we know to be a common American creed, then the various stances reflect different interpretations of whose rights exist and which come first – and they rest on a common bedrock. Even the most bitter adversaries share underlying identity.
In this light, the question of abortion rights breaks down into three threads of sub-argument.
First, does a host, e.g. a mother, have the right to withhold extensive personal resources from another person, even a dependent? If not, why not?
Second, whether or when does a fetus count as a person? Roe v. Wade effectively designated a fetus as a person starting with the second trimester of pregnancy.
Third, can a social consensus on morality abridge an individual’s prerogatives? Even under our First Amendment, freedom of speech has its limits.
These threads mingle and intertwine. For starters, no, no one is obligated to give life-saving assistance to any person. A pregnant mother, though, had a role in the creation of that aid-dependent person or potential person. Does that mean that the dependent’s rights trump the host’s? If the fetus was conceived by rape, is the mother then absolved of any such requirement?
If a fetus was conceived by somehow-voluntary incest, is the mother then obligated to carry the fetus to birth? Is the obligation incurred by the mother’s role in creating the fetus lifted by th moral consensus against incest? Does a moral consensus define the limits of a host’s rights?
If so, does the fetus no longer have moral rights because incest per se is immoral and the fetus’ humanity nullified? Or does the moral consensus put incest in the same category as statutory rape, criminal because consent is deemed impossible, so that the mother had no role in its creation? Does any of these conceptual pathways mean that community moral consensus can determine a host’s right to evict a dependent?
On another path of argument, is denying life-saving aid to another the same as killing that other? This question is what raises the arguments about when life begins. Certainly the potential exists from conception. At what point does potential life carry the rights of a person? If it is a question of probabilities, what level is required to deem a potential human a human? Who decides? And do those odds remain fixed through medical advances?
Are moral consensuses even relevant to individual rights? If so how? Is it through this question of whose rights come first? Or do rights to life, liberty and the pursuit of happiness include a right for anyone, carrying a fetus or not, to live in a community that is moral and which knows its rules? If not, must Americans accept the social chaos or degrading environment that an amoral community might generate? Would that not be a significant impediment to anyone’s pursuit of happiness?
Any and all of these questions have logically sound answers on “both sides” of the argument as currently, politically, conducted. None should truly be satisfying. But in working through them, we can start with the point that abortion is a question of whose unalienable rights come first. If we do that, we start with the principle we all share, as Americans, a nationality founded on a commitment to those unalienable rights. Pro-choice advocates would have to accept that they call for a cold denial of resources by a host to a dependent. Pro-life advocates would have to accept that subject free persons’ property rights to social, and government, control. This angle will not make the politics of final answers any easier. But it should make everyone on all sides uncomfortable. If we all have to agonize, but all see the same underlying principles, the conflict may become less divisive.
Common Conviction 