Remarks at the 1998 American Political Science Assoc. Convention
revised, expanded, and edited by William Saunders.
revised, expanded, and edited by William Saunders.
by R. P. George
Received 8 January 2001
(used with permission)
Appeals to religious authority have their place. That place is plainly not, however, in philosophical debates, including philosophical debates about public policy. Do such appeals have a legitimate place in political advocacy? I think they do, but, at the same time, I have some sympathy with Professor John Rawls's proposition that such appeals are legitimate only where they are offered to buttress and motivate people to act on positions that are defensible without such appeals. Like Rawls, I believe that public policy should be based on "public reasons." And while I believe that Rawls's own particular conception of what qualifies as a "public reason" is unreasonably narrow — its narrowness in effect stacking the deck in favor of legal abortion, "same-sex marriage," and other positions held by liberals in contemporary debates over morally charged issues of public policy — the idea that public policy ought to be based on public reasons strikes me as, well, reasonable.1
It is not, however, unproblematic. Anyone who believes that God has revealed that the public policy of a certain polity must be settled in a certain way has, so far as he can tell, an absolute, indefeasible reason for supporting that way of settling public policy irrespective of whether there are any grounds apart from revelation for the policy. My scruples, or Rawls's, would — and should — simply cut no ice for a person in this position. And if I happen to be the person in that position, or if Rawls happens to be that person, then I, or he, would be irrational in declining to lay aside our scruples. I suppose that when push comes to shove, those of us who hold these scruples believe that it just isn't the case that God sometimes reveals that public policy ought to be settled in a certain way irrespective of whether there are any grounds apart from revelation for settling policy in this way. Such people either don't believe in God, or (and this is my view) don't believe that God operates this way (at least we don't believe that He operates this way anymore). It seems to me, then, that our differences with those who don't hold these scruples implicate in this way certain theological judgments.
People who do not hold these scruples may believe either that God (at least sometimes) has no reason for the public policies He commands or (at least sometimes) has no reason He chooses to make available to human understanding. As they see it, God's reasons, if He has any, are (at least sometimes) opaque to us. "Ours is not to question why, ours is but to do or die." But, of course, this understanding of how God operates is one possible theological understanding among others. Many, perhaps most, serious religious believers in our society have a different understanding. To be sure, they believe–we believe–that God is a God of justice, who cares what the public policy of our society is on morally significant questions–e.g., abortion, euthanasia, and marriage and sexuality, not to mention, capital punishment, civil and human rights, military policy, economic justice, etc. And a great many believers, though not all, believe, as I do, that God wills that the unborn, handicapped, and frail elderly be protected by law, and that the institution of marriage as a permanent and exclusive union of one man and one woman be preserved against what we believe are the corrupting influences of sexual immorality. But we also believe not only that there are reasons (apart from revelation) for these policy positions, but also that these reasons are (or, at least, are among) God's reasons for willing what He wills. Indeed, it is our view that often the identification of these reasons by philosophical inquiry and analysis, supplemented sometimes by knowledge derived from the natural and/or social sciences, is critical to an accurate understanding of the content of revelation in, say, the Bible or Jewish or Christian tradition.
Perhaps the best example is in the area of marriage and sexual morality. Philosophical inquiry is indispensable to the project of fully understanding the meaning and implications of the proposition revealed in chapter two of Genesis and in the Gospels that marriage is a "one-flesh union" of a man and a woman.2
Another example is that of abortion, where both philosophical analysis and knowledge obtainable only by scientific inquiry were essential to settling, and continue to be essential to understanding the precise content of, the authoritative teaching of the magisterium of the Catholic Church declaring direct abortion to be intrinsically immoral and a violation of human rights.3
In short, many religious people — most informed Catholics and many Protestants and observant Jews — understand reason not only as a truth-attaining power, but as a power by and through which God directs us as individuals and communities in the way of just and upright living. In his formal account of natural law as a participation in what he called the "eternal law," Aquinas says that although God directs brute animals to their proper ends by instinct, God directs man–made in God's image and likeness and thus possessing reason and freedom–to his proper ends by practical reason through which men grasp the intelligible point of certain possible actions for the sake of ends (goods, values, purposes) which, qua intelligible, provide reasons for choice and action.4 Where these reasons have their intelligibility not, or not merely, by virtue of their utility in enabling us to realize our other valuable or desirable ends, but also by virtue of their intrinsic value and choice-worthiness, they constitute the referents of the most fundamental principles of practical reason and precepts of natural law.5 Aquinas gives an expressly non-exhaustive list of examples: human life itself, marriage and the transmission of life to new human beings, and knowledge, particularly of religious truth.6 The integral directiveness of these principles, when specified, constitutes the body of moral norms available to guide human choosing reasonably, viz., in conformity with a good will — a will toward integral human fulfillment.7
In his contributions to the February 1996 issue of First Things magazine — contributions in which what he has to say (particularly in his critique of liberalism) is far more often right than wrong — Professor Stanley Fish of Duke University cites the dispute over abortion as an example of a case in which "incompatible first assumptions — articles of opposing faiths," make the resolution of the dispute (other than by sheer political power) impossible. Here is how Professor Fish presented the pro-life and pro-choice positions and the shape of the dispute between their respective defenders:
A pro-life advocate sees abortion as a sin against God who infuses life at the moment of conception; a pro-choice advocate sees abortion as a decision to be made in accordance with the best scientific opinion as to when the beginning of life, as we know it, occurs. No conversation between them can ever get started because each of them starts from a different place and they could never agree as to what they were conversing about. A pro-lifer starts from a belief in the direct agency of a personal God and this belief, this religious conviction, is not incidental to his position; it is his position, and determines its features in all their detail. The "content of a belief" is a function of its source, and the critiques of one will always be the critique of the other.
It is certainly true that the overwhelming majority of pro-life Americans are religious believers and that a great many pro-choice Americans are either unbelievers or less observant or less traditional in their beliefs and practice than their fellow citizens. Indeed, although most Americans believe in God, polling data consistently show that Protestants, Catholics, and Jews who do not regularly attend church or synagogue are less likely than their more observant co-religionists to oppose abortion.8 And religion is plainly salient politically when it comes to the issue of abortion. The more secularized a community, the more likely that community is to elect pro-choice politicians to legislative and executive offices.
Still, I don't think that Professor Fish's presentation of the pro-life and pro-choice positions, or of the shape of the dispute over abortion, is accurate. True, inasmuch as most pro-life advocates are traditional religious believers who, as such, see gravely unjust or otherwise immoral acts as sins–and understand sins precisely as offenses against God — "a pro-life advocate sees abortion as a sin against God." But most pro-life advocates see abortion as a sin against God precisely because it is the unjust taking of innocent human life. That is their reason for opposing abortion; and that is God's reason, as they see it, for opposing abortion and requiring that human communities protect their unborn members against it. And, they believe, as I do, that this reason can be identified and acted on even independently of God's revealing it. Indeed, they typically believe, as I do, that the precise content of what God reveals on the subject ("in thy mother's womb I formed thee") cannot be known without the application of human intelligence, by way of philosophical and scientific inquiry, to the question.
Professor Fish is mistaken, then, in contrasting the pro-life advocate with the pro-choice advocate by depicting (only) the latter as viewing abortion as "a decision to be made in accordance with the best scientific opinion as to when the beginning of life ... occurs." First of all, supporters of the pro-choice position are increasingly willing to sanction the practice of abortion even where they concede that it constitutes the taking of innocent human life. Pro-choice writers from Namoi Wolfe9 to Judith Jarvis Thomson10 have advanced theories of abortion as "justifiable homicide." But, more to the point, people on the pro-life side insist that the central issue in the debate is the question "as to when the beginning of life occurs." And they insist with equal vigor that this question is not a "religious" or even "metaphysical" one: it is rather, as Professor Fish says, "scientific." In response to this insistence, it is pro-choice advocates who typically want to transform the question into a "metaphysical" or "religious" one. It was Justice Harry Blackmun who claimed in his opinion for the Court legalizing abortion in Roe v. Wade (1973) that "at this point in man's knowledge" the scientific evidence was inconclusive and therefore cold not determine the outcome of the case. And twenty years later, the influential pro-choice writer Ronald Dworkin went on record claiming that the question of abortion is inherently "religious."11 It is pro-choice advocates, such as Dworkin, who want to distinguish between when a human being comes into existence "in the biological sense" and when a human being comes into existence "in the moral sense." It is they who want to distinguish a class of human beings "with rights" from pre- (or post-) conscious human beings who "don't have rights." And the reason for this, I submit, is that, short of defending abortion as "justifiable homicide," the pro-choice position collapses if the issue is to be settled purely on the basis of scientific inquiry into the question of when a new member of homo sapiens sapiens comes into existence as a self-integrating organism whose unity, distinctiveness, and identity remain intact as it develops without substantial change from the point of its beginning through the various stages of its development and into adulthood.12
All this was, I believe, made wonderfully clear at a debate at last year's meeting of the American Political Science Association between Jeffrey Reiman of American University, defending the pro-choice position, and John Finnis of Oxford and Notre Dame, defending the pro-life view. That debate was remarkable for the skill, intellectual honesty, and candor of the interlocutors. What is most relevant to our deliberations, however, is the fact that it truly was a debate. Reiman and Finnis did not talk past each other. They did not proceed from "incompatible first assumptions." They did manage to agree as to what they were talking about — and it was not about whether or when life was infused by God. It was precisely about the rational (i.e., scientific and philosophical) grounds, if any, available for distinguishing a class of human beings "in the moral sense" (with rights) from a class of human beings "in the (merely) biological sense" (without rights). Finnis did not claim any special revelation to the effect that no such grounds existed. Nor did Reiman claim that Finnis's arguments against his view appealed implicitly (and illicitly) to some such putative revelation. Although Finnis is a Christian and, as such, believes that the new human life that begins at conception is in each and every case created by God in His image and likeness, his argument never invoked, much less did it "start from a belief in the direct agency of a personal God." It proceeded, rather, by way of point-by-point philosophical challenge to Reiman's philosophical arguments. Finnis marshaled the scientific facts of embryogenesis and intrauterine human development and defied Reiman to identify grounds, compatible with those facts, for denying a right to life to human beings in the embryonic an fetal stages of development.13
Interestingly, Reiman began his remarks with a statement that would seem to support what Professor Fish said in First Things. While allowing that debates over abortion were useful in clarifying people's thinking about the issue, Reiman remarked that they "never actually cause people to change their minds." It is true, I suppose, that people who are deeply committed emotionally to one side or the other are unlikely to have a road-to-Damascus type conversion after listening to a formal philosophical debate. Still, any open-minded person who sincerely wishes to settle his mind on the question of abortion–and there continue to be many such people, I believe — would find debates such as the one between Reiman and Finnis to be extremely helpful toward that end. Anyone willing to consider the reasons for and against abortion and its legal prohibition or permission would benefit from reading or hearing the accounts of these reasons proposed by capable and honest thinkers on both sides. Of course, when it comes to an issue like abortion, people can have powerful motives for clinging to a particular position even if they are presented with conclusive reasons for changing their minds. But that doesn't mean that such reasons do not exist. And the reason the pro-life position is superior to the pro-choice position is precisely because the scientific evidence, considered honestly and dispassionately, supports that position.
A human being is conceived when a human sperm containing twenty-three chromosomes fuses with a human egg also containing twenty-three chromosomes (albeit of a different kind) producing a single-cell human zygote containing, in the normal case, forty-six chromosomes that are mixed differently from the forty-six chromosomes as found in the mother or father. Unlike the gametes (that is, the sperm and egg), the zygote is genetically unique and distinct from its parents. Biologically, it is a separate organism. It produces, as the gametes do not, specifically human enzymes and proteins. It possesses, as they do not, the active capacity or potency to develop itself into a human embryo, fetus, infant, child, adolescent, and adult.
Assuming that it is not conceived in vitro, the zygote is, of course, in a state of dependence on its mother. But independence should not be confused with distinctness. From the beginning, the newly conceived human being, not its mother, directs its integral organic functioning. It takes in nourishment and converts it to energy. Given an hospitable environment, it will, as Dianne Nutwell Irving says, "develop continuously without any biological interruptions, or gaps, throughout the embryonic, fetal, neo-natal, childhood and adulthood stages — until the death of the organism."
Some claim to find the logical implication of these facts — i.e., that life begins at conception — to be "virtually unintelligible." A leading exponent of that point of view in the legal academy is Jed Rubenfeld of Yale Law School, author of an influential article entitled "On the Legal Status of the Proposition that ‘Life Begins at Conception,’" 43 Stanford Law Review 599 (1991). Rubenfeld argues that, like the zygote, every cell in the human body is "genetically complete"; yet nobody supposes that every human cell is a distinct human being with a right to life. However, Rubenfeld misses the point that there comes into being at conception, not a mere clump of human cells, but a distinct, unified, self-integrating organism, which develops itself, truly himself or herself, in accord with its own genetic "blueprint." The significance of genetic completeness for the status of newly conceived human beings is that no outside genetic material is required to enable the zygote to mature into an embryo, the embryo into a fetus, the fetus into an infant, the infant into a child, the child into an adolescent, the adolescent into an adult. What the zygote needs to function as a distinct self-integrating human organism, a human being, it already possesses.
At no point in embryogenesis, therefore, does the distinct organism that came into being when it was conceived undergo what is technically called "substantial change" (or a change of natures). It is human and will remain human. This is the point of Justice Bryon White's remark in his dissenting opinion in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986), that "there is no non-arbitrary line separating a fetus from a child." Rubenfeld attacks White's point, which he calls "[t]he argument based on the gradualness of gestation," by pointing out that, "[n]o non-arbitrary line separates the hues of green and red. Shall we conclude that green is red?"
White's point, however, was not that fetal development is "gradual," but that it is continuous and is the (continuous) development of a single lasting (fully human) being. The human zygote that actively develops itself is, as I have pointed out, a genetically complete organism directing its own integral organic functioning. As it matures, in utero and ex utero, it does not "become" a human being, for it is a human being already, albeit an immature human being, just as a newborn infant is an immature human being who will undergo quite dramatic growth and development over time.
These considerations undermine the familiar argument, recited by Rubenfeld, that "the potential" of an unfertilized ovum to develop into a whole human being does not make it into "a person." The fact is, though, that an ovum is not a whole human being. It is, rather, a part of another human being (the woman whose ovum it is) with merely the potential to give rise to, in interaction with a part of yet another human being (a man's sperm cell), a new and whole human being. Unlike the zygote, it lacks both genetic distinctness and completeness, as well as the active capacity to develop itself into an adult member of the human species. It is living human cellular material, but, left to itself, it will never become a human being, however hospitable its environment may be. It will "die" as a human ovum, just as countless skin cells "die" daily as nothing more than skin cells. If successfully fertilized by a human sperm, which, like the ovum (but dramatically unlike the zygote), lacks the active potential to develop into an adult member of the human species, then substantial change (that is, a change of natures) will occur. There will no longer be merely an egg, which was part of the mother, sharing her genetic composition, and a sperm, which was part of the father, sharing his genetic composition; instead, there will be a genetically complete, distinct, unified, self-integrating human organism whose nature differs from that of the gametes — not mere human material, but a human being.
These considerations also make clear that it is incorrect to argue (as some pro-choice advocates have argued) that, just as "I" was never a week-old sperm or ovum, "I" was likewise never a week-old embryo. It truly makes no sense to say that "I" was once a sperm (or an unfertilized egg) that matured into an adult. Conception was the occasion of substantial change (that is, change from one complete individual entity to another) that brought into being a distinct self-integrating organism with a specifically human nature. By contrast, it makes every bit as much sense to say that I was once a week-old embryo as to say that I was once a week-old infant or a ten-year-old child. It was the new organism created at conception that, without itself undergoing any change of substance, matured into a week-old embryo, a fetus, an infant, a child, an adolescent, and, finally, an adult.
But Rubenfeld has another argument: "Cloning processes give to non-zygotic cells the potential for development into distinct, self-integrating human beings; thus to recognize the zygote as a human being is to recognize all human cells as human beings, which is absurd."
It is true that a distinct, self-integrating human organism which came into being by a process of cloning would be, like a human organism that comes into being as a mono-zygotic twin, a human being. That being, no less than human beings conceived by the union of sperm and egg, would possess a human nature and the active potential to mature as a human being. However, even assuming the possibility of cloning human beings from non-zygotic human cells, the non-zygotic cell must be activated by a process which effects substantial change and not mere development or maturation. Left to itself, apart from an activation process capable of effecting a change of substance or natures, the cell will mature and die as a human cell, not as a human being.
The scientific evidence establishes the fact that each of us was, from conception, a human being. Science, not religion, vindicates this crucial premise of the pro-life claim. From it, there is no avoiding the conclusion that deliberate feticide is a form of homicide. The only real questions remaining are moral and political, not scientific: Although I will not go into the matter here, I do not see how abortion can ever be considered a matter of "justified homicide." (The efforts of Judith Jarvis Thomson and other philosophers to defend abortion as "justified homicide" are very ably criticized by Patrick Lee in Abortion and Unborn Human Life.) It is important to recognize, however, as traditional moralists always have recognized, that not all procedures which foreseeably result in fetal death are, properly speaking, abortions. Although any procedure whose precise objective is the destruction of fetal life is certainly an abortion, and cannot be justified, some procedures result in fetal death as an unintended, albeit foreseen and accepted, side effect. Where procedures of the latter sort are done for very grave reasons, they may be justifiable.14 For example, traditional morality recognizes that a surgical operation to remove a life-threateningly cancerous uterus, even in a woman whose pregnancy is not far enough along to enable the child to be removed from her womb and sustained by a life support system, is ordinarily morally permissible.15 Of course, there are in this area of moral reflection, as in others, "borderline" cases that are difficult to classify and evaluate. Mercifully, modern medical technology has made such cases exceptionally rare in real life. Only in the most extraordinary circumstances today do women and their families and physicians find it necessary to consider a procedure which will result in fetal death as the only way of preserving maternal life. In any event, the political debate about abortion is not, in reality, about cases of this sort; it is about "elective" or "social indication" abortions, viz., the deliberate destruction of unborn human life for non-therapeutic reasons.
A final point: In my own experience, conversion from the pro-choice to the pro-life cause is often (though certainly not always) a partial cause of religious conversion rather than an effect. Frequently, people who are not religious, or who are only weakly so, begin to have doubts about the moral defensibility of deliberate feticide. Although most of their friends are pro-choice, they find that position increasingly difficult to defend or live with. They perceive practical inconsistencies in their, and their friends', attitudes toward the unborn depending on whether the child is "wanted" or not. Perhaps they find themselves arrested by sonographic (or other even more sophisticated) images of the child's life in the womb. So the doubts begin creeping in. For the first time, they are really prepared to listen to the pro-life argument (often despite their negative attitude toward people–or "the kind of people"–who are pro-life); and somehow, it sounds more compelling than it did before. Gradually, as they become firmly pro-life, they find themselves questioning the whole philosophy of life — in a word, the secularism — associated with their former view. They begin to understand the reasons that led them out of the pro-choice and into the pro-life camp as God's reasons, too.
- For a fuller development of my critique of Rawls's position, see Robert P. George, "Public Reason and Political Conflict: Abortion and Homosexuality, " Yale Law Journal, Vol. 106 (1997), pp. 2475-2504. This article also develops much of the scientific material which I will discuss subsequently herein.
- See Germain Grisez, The Way of the Lord Jesus: Volume Two: Living A Christian Life (Quincy, Ill.: Franciscan Press, 1992), ch. 9.
- See John Connery, S.J., Abortion: The Development of the Roman Catholic Perspective (Chicago: Loyola University Press, 1997).
- See St. Thomas Aquinas, Summa Theologiae, I-II, q. 91, a. 2.
- For a fuller explanation, see Robert P. George, "Recent Criticism of Natural Law Theory," University of Chicago Law Review, Vol. 55 (1988), pp. 1371-1429.
- See St. Thomas Aquinas, Summa Theologiae, I-II, q. 94., a. 2. For an effort by contemporary natural law thinkers to provide a more complete account, see Joseph M. Boyle, Jr., Germain Grisez, and John Finnis, "Practical Principles, Moral Truth, and Ultimate Ends," American Journal of Jurisprudence, Vol. 32 (1987), pp. 99-151.
- For a fuller explanation, see Robert P. George, "Natural Law Ethics" in Philip L. Quinn and Charles Taliaferro, eds., A Companion to Philosophy of Religion (Oxford: Blackwell Publishers, 1997), pp. 460-465.
- See James Davison Hunter, Before the Shooting Begins: Searching for Democracy in America's Culture War (New York: Free Press, 1994), pp. 104-105.
- "Our Bodies, Our Souls," The New Republic (1995), reprinted with commentaries by pro-life writers in The Human Life Review (Winter, 1996)
- "A Defense of Abortion," in Marshall Cohen (ed.), The Rights and Wrongs of Abortion (Princeton University Press, 1974)
- See Ronald Dworkin, Life’s Dominion (Alfred A. Knopf, 1993).
- I explain this point more fully below. Also see Patrick Lee, Abortion and Unborn Human Life (Washington, DC: Catholic University of America Press, 1995) and Dianne Nutwell Irving, "Scientific and Philosophical Expertise: An Evaluation of the Arguments on 'Personhood'," Linacre Quarterly, Vol. 60 (1993), pp. 18-46.
- Finnis’s paper, "Abortion, Natural Law, and Public Reason," and Reiman’s paper, "Abortion, Natural Law, and Liberal Discourse," will be published in Robert P. George and Christopher Wolfe (eds.), Public Reason (Georgetown University Press, forthcoming, 1999).
- See John Finnis, "Abortion and Health Care Ethics II," in Raanan Gillon and Ann Lloyd (eds.), Principles of Health Care Ethics, 1994, pp. 547-557.
- See Germain Grisez, The Way of the Lord Jesus: Vol. II: Living a Christian Life, p. 502.