The meaning of "life": belief and reason in the abortion debate.

• Author: Borgmann, Caitlin E.

In 1993, a man named Michael Griffin killed David Gunn, a forty-even-year-old doctor who provided abortions at a clinic in Pensacola, Florida. Before shooting Gunn three times in the back, Griffin yelled, "Don't kill any more babies!" (1) According to news reports, protestors present at the clinic that day, members of a "militant" anti-abortion-rights group, were elated, shouting, "Praise God! Praise God! One of the babykillers is dead." (2) Yet "mainstream" anti-abortion-rights groups, who are more representative of the majority of abortion-rights opponents, were quick to renounce the murder, (3) sensing "a public-relations disaster." (4)

In August 2008, then-presidential nominees Senators Barack Obama and John McCain appeared separately at a religious forum hosted by best-selling author and evangelical pastor, Rick Warren. Warren asked each candidate at what point "a baby [is] entitled to human rights." (5) McCain responded simply, "At conception." This position appears consistent with Griffin's view that abortion amounts to killing babies, and at odds with McCain's own support for stem cell research and for abortion under limited circumstances. (6) Yet, far from challenging McCain, Warren seemed satisfied that McCain's answer encapsulated a complete and coherent moral position on abortion. Suggesting that no further examination was warranted, he remarked, "Okay. We don't have to go longer on that one." (7) For his part, Obama answered that "if you believe that life begins at conception, then-and you are consistent in that belief--then I can't argue with you on that." (8) Obama's response mirrored the standard liberal position, which divorces the moral question of "life"--what it means and when it begins--from the legal questions of abortion and personhood. (9)

It is ironic that in the abortion debate, one of the most pressing moral controversies of our time, (10) we condemn apparent moral consistency and conviction and defer to moral incoherence and superficiality. We revile and dismiss as a fanatic the man who thinks abortion is murder and who acts upon his belief, saving thousands of "innocent children" from imminent death by attacking their would-be killer. Yet, we acknowledge respectfully as "mainstream" one who professes the identical belief, but for whom the claim is seemingly nothing but hollow rhetoric. If abortion opponents in 1993 believed that abortion was murder, why did they denounce Griffin? (11) If, as Flip Benham, leader of the anti-abortion-rights group Operation Rescue, declared after the slaying of another doctor, the doctor had "murdered countless thousands of innocent children" and would have continued to do so, why was Benham "sad to learn of his death," (12) and why did he describe the murders of abortion doctors as acts of "cowardice, terror and murder?" (13) Would he have been equally sad to learn of the death of Adolf Hitler? Would he label an assassin of Osama bin Laden a coward or a murderer? "Mainstream" opposition to abortion clearly is more complex than the rhetoric indicates. Given this, why do liberals like Obama feel they cannot question the belief that human rights vest upon conception?

As Warren's forum demonstrates, the declaration that "life begins at conception" has become a conversation-stopper that has stymied the national debate over abortion. (14) We have grown accustomed to thinking of the abortion debate as a furious and irreconcilable conflict. The abortion controversy is commonly called a war. (15) This is not surprising when one considers the absolute nature of anti-abortion rhetoric: Abortion is murder. Abortion kills innocent babies. Abortion is like the Holocaust. (16) Abortion often appears to inspire more passion than actual instances of war or genocide. If we take conservative rhetoric on abortion at face value, the abortion issue seems hopeless and intractable. (17) The Supreme Court has thrown up its hands and excused itself from this conversation, even as it has upheld the constitutional right to abortion. In Roe v. Wade, the Court declared, "We need not resolve the difficult question of when life begins." (18)

Any moral position on abortion, if society is to accept it, must appeal to both belief and reason. (19) Moral judgments need beliefs for substantial content. But they gain validity only when they are supported by reason. This conjunction of belief and reason is known as "reflective equilibrium." (20) Moreover, if they are to bind a pluralistic society, beliefs about abortion must be articulated in a way that satisfies public reason. (21) This Article argues that both conservatives and liberals have failed to meet these requirements in the abortion debate. In invoking claims of embryonic personhood, conservatives have eschewed demonstrating the coherence among their beliefs about fetal personhood and their other considered judgments. But conservatives' positions on abortion are inconsistent with a moral view that recognizes embryos and fetuses as full, legal persons. Conservatives have been conscious of the need to appeal to public reason rather than relying on peculiarly religious justifications. But these efforts have been deceptive and disingenuous. Conservatives often invoke the universal value of "human life" in opposing abortion. But they can commit only to a "thin" conception of life (that an embryo or fetus is a human organism in the process of developing into a person), even as they trade on the more compelling "thick" notions that the word "life" invokes. (22) The unsurprising fact that an embryo or fetus is, biologically, "human life" simply does not answer the moral (or legal) question whether and when that "life" is to be accorded some or all of the rights of a person. (23)

On the other hand, liberals, who tend to distrust beliefs as a basis for moral theory, prefer to dodge conservatives' beliefs in the abortion debate. Rather than directly challenging claims of embryonic or fetal personhood as unreasonable, liberals often profess respect for these beliefs. (24) Some liberals have argued that abortion should be allowed even if conservatives are right that the embryo or fetus is a person. (25) However, this Article claims, these arguments fail to respond effectively to claims of embryonic or fetal personhood. (26)

More importantly, they are fallback arguments to liberals' real position on abortion. Liberals, of course, do not in fact believe that the law should recognize the embryo or fetus as a person. Instead, they assume that society, or the Supreme Court, can determine that women's liberty demands the right to choose abortion, while leaving the moral question of abortion and personhood unanswered and thus open for each individual to decide. (27) Michael Sandel calls this "bracketing" the question of fetal personhood. (28) But, this Article argues, neither the Supreme Court nor the public can successfully "bracket" the question of when personhood begins. (29) As a moral question, personhood is too important to leave to individual choice. And the constitutional question of personhood goes hand in hand with the moral question. (30) If, as a moral matter, an embryo or fetus is a person, then ultimately this must be reflected in the interpretation of our Constitution just as, for example, the moral recognition that slaves were persons led ineluctably to their recognition as full persons under the Constitution. (31)

By purporting to leave the question for each individual to decide, the Court has not dodged the question but rather has effectively rejected a belief in fetal personhood, for if an embryo or fetus is a person, abortions must be prohibited, and women who obtain abortions are as culpable as the doctors who perform them. (32) Indeed, the positions of even the Court's most conservative members implicitly disavow that a fetus is a person. (33) Moreover, by avoiding the question of embryonic and fetal personhood, liberals have neglected the important role women's autonomy and dignity should play in the debate, leading to a perception of abortion as a morally bankrupt choice. (34)

This Article argues that, rather than avoiding the most critical moral question in the abortion debate, conservatives and liberals must engage in a public conversation about abortion that seeks reflective equilibrium on the status of the embryo or fetus, one that satisfies the demands of public reason. This conversation would be a very different, and more fruitful, public debate: one that would seek to understand the real reasons why conservatives oppose some abortions and not others, for example, and to see whether these newly surfaced reasons might yield some common moral ground on the issue. (35) In such a conversation, liberal and conservative positions on abortion would likely converge on a gradualist view of the embryo's moral status (that an embryo has moral significance that grows as the embryo, and later fetus, matures). (36) This Article argues that such a view of the fetus neither relieves the Court of its obligation to protect women's rights nor sanctions onerous state regulation of abortion. (37) The primary aim of this Article, however, is not to answer definitively the questions of the value of fetal life and of morally defensible abortion regulation. Rather, it is to argue for the importance of a discussion that assesses the consistency and coherence of asserted moral positions on abortion and that demands that these positions be supported by public reason. In particular, the Article exposes and examines how the abortion debate has become polarized and intractable because of both sides' failure to satisfy this demand with respect to the issue of personhood.

This Article proceeds in three parts. Part I addresses the concept of the embryo or fetus as a person. It examines the apparent trend in many areas of the law to recognize embryonic or fetal personhood. It then considers defenses of the right to abortion that assume...