How To Bridge The Abortion Divide

Thoughts on why the abortion issue will eventually be settled

If the substance of the recently leaked Supreme Court draft majority opinion in Dobbs v. Jackson Women's Health Organization carries over to the final decision, Roe v. Wade will be overturned and individual states will become responsible for determining if and when a woman may have an abortion. This would be a significant setback for the protection of individual rights. Roe may not have been decided on the correct grounds, but the outcome meant that a woman’s rights to terminate a pregnancy was federally protected. Going forward, women living in states with restrictive abortion laws will most likely be able to travel to states with better individual rights protections in this area to administer a morning after pill or have a doctor assisted abortion. But this will place an additional financial and emotional burden on what is already a difficult decision, and most likely cause unnecessary and potentially harmful delays. And women with limited means will be the hardest hit.

Whatever the Supreme Court’s final decision, abortion as a hot topic will not go away. If Roe is overturned, the courts will most likely see abortion-related cases dealing with conflicting state laws. And if it is not overturned this time around, anti-abortion advocates will find other avenues to further their cause.

Abortion is one of the most morally and politically contentious issues in America today. And for good reasons—it is literally a matter of life or death. If you believe that human life starts at conception and aborting an embryo or a fetus is murder, you’re sure to advocate for a ban on abortion. After all, you may argue, the fundamental role of government is to protect individual rights, so it is within its jurisdiction to ban abortion to protect the rights of the unborn. If, on the other hand, you’re championing a woman’s right to her life and liberty, you’ll defend her right to have an abortion. After all, you may say, the fundamental role of government is to protect individual rights, and what is more fundamental than the right to decide what to do with your own body?

If Roe is overturned, individual rights protections will undoubtedly take a hit in the short- and medium-term. But is there a chance to bridge the divide long-term that would settle the abortion issue once and for all? Perhaps not tomorrow, next year or in a decade, but maybe in a generation? Admittedly, this is a frustrating prospect for champions of individual rights, but it is most likely the reality we’re facing in the foreseeable future.

As most opposition to abortion is faith based, let’s start there. The outcome of some of history’s great intellectual battles indicate that there is a glimmer of hope. A recurring historical theme is that people of faith who are also committed to reason tend to adjust their faith-based views as new scientific and other facts are discovered.

For example, in 1633, Galileo Galilei was sentenced to house arrest for life by the Roman Inquisition for his advocacy of heliocentrism, the idea that the earth revolves around the sun, because it was against the teachings of the Catholic church. But sentencing Galileo did not stop heliocentrism from spreading. On the contrary, his discovery quickly became central to future scientific discoveries, for the most part spearheaded by scientists who themselves were religious. When faced with the newly discovered facts that contradicted their faith, they went back and reexamined and often reinterpreted the religious texts and teachings, and adjusted their faith accordingly. As the new knowledge spread, society little by little adjusted its views until it became the dominant position.

In the early 1800s the new science of geology was all the rage. William Smith, the father of geology, examining fossils in different strata of the earth, concluded that our planet had been around a little longer than previously thought. The religiously based accepted view before William Smith was that of Bishop Ussher who in 1654 had calculated the night preceding Sunday, October 23, 4004 BC as the birth of creation. The debate between the proponents of the new science and the people of faith who supported Bishop Ussher’s view was as heated as today’s abortion debate. But over time the facts were acknowledged, and religious people gradually adjusted their views.

History is full of examples of this process at work, with faith and facts initially clashing but eventually being reconciled. And eventually, official doctrine catches up although it may take a while: it took the Catholic church until 1835 to see the (sun)light and drop Galilei’s Dialogue Concerning The Two Chief World Systems from the List of Prohibited Books But the world had moved on long before that.

In the past half-century or so similar ground-breaking and controversial discoveries have been made that over time may result in a similar reconciliation of the different views on abortion. The 20th century philosopher Ayn Rand clarified the relationship between rights and human nature. She demonstrated that rights only apply to actual, not potential human beings: the concept of “rights” presupposes a being that has the capacity (mental ability) to reason (to think) and the free will to exercise that capacity. Only when this capacity is physically developed can we talk about an actual human being with rights. It follows that individual rights don’t apply until that point is reached. Consequently, aborting a fetus before that time is not a rights violation of the potential human being (the fetus). But preventing an actual human being (a pregnant woman) from having an abortion is.

Determining when the capacity to reason and the free will to exercise that capacity has developed during pregnancy is a question for science. The research is still in its early stages, but indications are that it occurs towards the end of the second or early third trimesters. (see here for an example of research in this area) As the science of prenatal brain development progresses, we will be able to gain a better understanding of when a fetus becomes an entity subject to potential individual rights protections.

As often portrayed in much of mainstream media, the two sides of the abortion issue appear at an impasse with no middle ground between a total ban on abortion and no restrictions at all. Yet, according to the 2021 Pew Research Center survey “Public Opinion on Abortion,” the American public has a more nuanced view of abortion with a majority (60%) occupying the center favoring abortion to be legal up to a certain point of pregnancy. These numbers have held relatively steady since the Pew survey was first done in 1995.

Protection of individual rights should not be subject to majority decision. But the bell curve of opinions on abortion, with a majority believing that abortion should be legal or illegal at some but not all times during pregnancy, may indicate an opportunity for Ayn Rand’s differentiation between a potential and actual human being—between having and not having the capacity to reason and the free will to exercise that capacity—to take hold over time. And someday first trimester abortions may become factually, if not emotionally, uncontroversial, facilitating the process of reconciliation between the two sides.

And just as people of faith may reconcile their “pro-life” views with Ayn Rand’s groundbreaking discovery, pro-choice hardliners may soften their stance, realizing that a gray zone exists in the development from a potential to an actual human being, and that morally and perhaps legally erring on the side of caution is warranted in the later stages of pregnancy.

Having an abortion is a difficult decision. The vast majority of women facing this tough choice wants it done as quickly as possible. According to the CDC’s latest statistics from 2019, 79.3% of abortions took place the first 9 weeks. Another 13.4% were performed week 9-13, bringing the approximate first trimester total to 92.7%. 6.3% were performed week 14-20, and the remaining 1.0% take place in the 21st week or later (some states didn’t not report their stats, most notably California, but other surveys show similar results). As the moral stigma around early stage abortions eases (making the decision less agonizing for the woman involved) and as contraceptives and abortion medications continue to improve (including adding male contraceptives to the mix), the total number of abortions will likely continue the downward trend that has been observed since the peak in the early 1980s when more than twice as many abortions were performed. And if abortion access were allowed to improve preventing unnecessary delays—something that would be jeopardized by overturning Roe v. Wade—the number of late-term abortions would most likely continue their downward trajectory as well.

And some day, the relationship between individual rights and human nature—and a fact-based view on abortion—will be common knowledge as surely as the earth revolves around the sun and that it’s a wee bit older than 6026 years. And the Supreme Court will have one less headache on its plate.