'The Case Against Abortion' Is Weak

'The Case Against Abortion' Is Weak

(AP Photo/Andrew Harnik)

By Bill Scher

In his New York Times column the day before the Supreme Court openly considered overturning Roe v. Wade, Ross Douthat lamented “how little abortion itself is actually debated” and offered “the pro-life case.” He began by noting that science has shown that “the embryo is not merely a cell with potential” but a “distinct human organism” at the point of conception. “We know from embryology,” wrote Douthat, “not Scripture or philosophy, that abortion kills a unique member of the species Homo sapiens.” Therefore, “there is a burden of proof on the pro-choice side to explain why in this case taking another human life is acceptable, indeed a protected right itself” [emphasis original].

Let’s take on this burden.

Douthat’s case rests on two pillars. One is that since an embryo or fetus will soon gain “higher brain functioning,” we should allow it to progress as we would a hypothetical “brain-dead but otherwise physically healthy person [who] would spontaneously regain consciousness in two weeks.” The second is that “justice for women” does not “require legal indifference to the claims of the unborn because, over the past few decades, as abortion rates have fallen, women have made economic and educational gains.”

While Douthat began by trying to root his argument in science and not religion or philosophy, his first pillar is an answer to a philosophical question of when a fetus deserves legal rights. That’s not a question that can be mechanically adjudicated by science.

As explained in “The Ethical Brain” by Michael Gazzaniga, “Synaptic activity underlies all brain functions. Synaptic growth does not skyrocket until around postconcpetion day 200 (week 28). Nonetheless, at around week 23 the fetus can survive outside the womb, with medical support.” To Gazzaniga, who served on President George W. Bush’s Council on Bioethics, the neuroscience of fetal development informs his view that “the moral and legal rights of a human being” should begin at 23 weeks. But he notes that “neuro ‘logic’” cannot fully settle the debate because, “[m]oral arguments get mixed in with biology, and the result is a stew of passions, beliefs, and stubborn, illogical opinion.”

Douthat sees a direct parallel between an unborn fetus who will soon have a functioning brain, and a born human who has temporarily lost brain function but will soon regain it. Others like myself see a difference between an unborn fetus who hasn’t had any thoughts and feelings and memories, and a born human who has. Both are philosophical opinions, and Douthat’s is no more or less legitimate than anyone else’s. But mere opinion requires fortification if it is to be a strong, persuasive case. Unfortunately for Douthat, his second pillar is utter nonsense.

“If there were an integral and unavoidable relationship between abortion and female equality,” he argued, “you would expect these declines — fewer abortions, diminished abortion access — to track with a general female retreat from education and the workplace.” I don’t know who but Douthat would expect that.

As Douthat acknowledged, at least some of the decline in abortion rates stems from “cultural change [and] increased contraception use.” But you can’t divorce those factors from 50 years of constitutionally protected abortion rights. The Supreme Court’s establishment of a right to privacy is the foundation of both the right to contraception and the right to an abortion. And these rights changed women’s place in society, giving them much more agency over their lives. Women can now more easily choose if and when to become mothers, which directly impacts their ability to pursue higher education and control their careers.

The average age for first-time mothers has risen from 21 in 1972, just before Roe, to 26 in 2016. And there are big gaps in the average age between those from cities and the coasts — where abortion is more accessible and acceptable — and those from rural areas.

Douthat marvels at the educational gains made by women — they are now more likely than men to get a college degree — but those gains were most likely made by women who didn’t bear children at a young age. While about 36% of women earn a college degree by the age of 31, for teen moms it’s less than 2% by age 30.

Of course that doesn’t mean that every woman must delay or avoid motherhood to be happy. Douthat writes that there are a “multitude of different ways to offer women greater opportunities, a multitude of paths to equality and dignity — a multitude of ways to be a feminist, in other words, that do not require yoking its idealistic vision to hundreds of thousands of acts of violence every year.” But in equating abortion with “violence,” Douthat wants to yoke motherhood on hundreds of thousands of impregnated women every year who don’t want to be mothers at that point in their lives. They would not get to choose their preferred path.

Douthat acknowledges that the “irreducible burden of childbearing … cannot be redistributed to fathers, governments or adoptive parents,” and in turn, “a portion of the pro-choice argument is correct: The unique nature of pregnancy means that there has to be some limit on what state or society asks of women and some zone of privacy where the legal system fears to tread.” He then offers a modest proposal for such a limit in the very next sentence: legislation that “criminalizes the provision of abortion by third parties, rather than prosecuting the women who seek one.” That falls just a wee bit short of protecting those who don’t want the “irreducible burden of childbearing” from shouldering that burden anyway.

The farther Douthat goes in his argument, the weaker it gets. He strains to give his case a scientific, rational sheen, when all he does is reverse-engineer a flimsy argument to justify his philosophical opinion as to when a fetus should have legal rights.

The quality of Douthat’s argument may not matter in the short run, as the Supreme Court’s conservative justices appear poised to gut or overturn Roe v. Wade by next summer. But a failure by abortion opponents to persuade the public in advance of such a ruling could lead to a ferocious pro-choice backlash.

As of last month, in an ABC/Washington Post poll, 60% of respondents want Roe upheld. Douthat’s anemic case is unlikely to move that needle.

Bill Scher is a contributing editor to Politico Magazine, co-host of the Bloggingheads.tv show “The DMZ,” and host of the podcast “New Books in Politics.” He can be reached at contact@liberaloasis.com or follow him on Twitter @BillScher.