Remarks at the 1998 American Political Science Assoc. Convention
revised, expanded, and edited by William Saunders.
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 Wolfe
9 to Judith Jarvis Thomson
10 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.
