Inconvenient Lives

Author: Robert H. Bork

Inconvenient Lives

Robert H. Bork

Judging from the evidence, Americans do not view human life as sacrosanct. We engage in a variety of activities, from driving automobiles to constructing buildings, that we know will cause deaths. But the deliberate taking of the life of an individual has never been regarded as a matter of moral indifference. We debate the death penalty, for example, endlessly. It seems an anomaly, therefore, that we have so easily accepted practices that are the deliberate taking of identifiable individual lives. We have turned abortion into a constitutional right; one state has made assisted suicide a statutory right and two federal circuit courts, not to be outdone, have made it a constitutional right; campaigns to legalize euthanasia are underway. It is entirely predictable that many of the elderly, ill, and infirm will be killed, and often without their consent. This is where radical individualism has taken us.

When a society revises its attitude toward life and death, we can see the direction of its moral movement. The revision of American thought and practice about life questions began with abortion, and examination of the moral confusion attending that issue helps us understand more general developments in public morality.

The necessity for reflection about abortion does not depend on, but is certainly made dramatic by, the fact that there are approximately a million and a half abortions annually in the United States. To put it another way, since the Supreme Court's 1973 decision in , there have been perhaps over thirty million abortions in the United States. Three out of ten conceptions today end in the destruction of the fetus. These facts, standing alone, do not decide the issue of morality, but they do mean that the issue is hugely significant.

The issue is also heated, polarizing, and often debated on both sides in angry, moralistic terms. I will refrain from such rhetoric because for most of my life I held a position on the subject very different from the one I now take. For years I adopted, without bothering to think, the attitude common among secular, affluent, university-educated people who took the propriety of abortion for granted, even when it was illegal. The practice's illegality, like that of drinking alcohol during Prohibition, was thought to reflect merely unenlightened prejudice or religious conviction, the two being regarded as much the same. From time to time, someone would say that it was a difficult moral problem, but there was rarely any doubt how the problem should be resolved. I remember a woman at Yale saying, without any disagreement from those around her, that "The fetus isn't nothing, but I am for the mother's right to abort it." I probably nodded. Most of us had a vague and unexamined notion that while the fetus wasn't nothing, it was also not fully human.1 The slightest reflection would have suggested that non-human or semi-human blobs of tissue do not magically turn into human beings.

Qualms about abortion began to arise when I first read about fetal pain. There is no doubt that, after its nervous system has developed to a degree, the fetus being dismembered or poisoned in the womb feels excruciating pain. For that reason, many people would confine abortion to the early stages of pregnancy but have no objection to it then. There are, on the other hand, people who oppose abortion at any stage and those who regard it as a right at any stage up to the moment of birth. But in thinking about abortion-especially abortion at any stage-it is necessary to address two questions. Is abortion always the killing of a human being? If it is, is that killing done simply for convenience? I think there can be no doubt that the answer to the first question is, yes; and the answer to the second is, almost always.2

The question of whether abortion is the termination of a human life is a relatively simple one. It has been described as a question requiring no more than a knowledge of high school biology. There may be doubt that high school biology courses are clear on the subject these days, but consider what we know. The male sperm and the female egg each contains twenty-three chromosomes. Upon fertilization, a single cell results containing forty-six chromosomes, which is what all humans have, including, of course, the mother and the father. But the new organism's forty-six chromosomes are in a different combination from those of either parent; the new organism is unique. It is not an organ of the mother's body but a different individual. This cell produces specifically human proteins and enzymes from the beginning. Its chromosomes will heavily influence its destiny until the day of its death, whether that death is at the age of ninety or one month after conception.

The cell will multiply and develop, in accordance with its individual chromosomes, and, when it enters the world, will be recognizably a human baby. From single-cell fertilized egg to baby to teenager to adult to old age to death is a single process of one individual, not a series of different individuals replacing each other. It is impossible to draw a line anywhere after the moment of fertilization and say before this point the creature is not human but after this point it is. It has all the attributes of a human from the beginning, and those attributes were in the forty-six chromosomes with which it began. Francis Crick, the Nobel laureate and biophysicist, is quoted as having estimated that "the amount of information contained in the chromosomes of a single fertilized human egg is equivalent to about a thousand printed volumes of books, each as large as a volume of the Encyclopedia Britannica." Such a creature is not a blob of tissue or, as the Roe opinion so felicitously put it, a "potential life." As someone has said, it is a life with potential.

It is impossible to say that the killing of the organism at any moment after it originated is not the killing of a human being. Yet there are those who say just that by redefining what a human being is. Redefining what it means to be a human being will prove dangerous in contexts other than abortion. One of the more primitive arguments put forward is that in the embryonic stage, which lasts about two months after conception, the creature does not look human. One man said to me, "Have you ever seen an embryo? It looks like a guppy." A writer whose work I greatly respect refers to "the patently inhuman fetus of four weeks." A cartoonist made fun of a well-known anti-abortion doctor by showing him pointing to the microscopic dot that is the zygote and saying, "We'll call him Timmy." It is difficult to know what the appearance of Timmy has to do with the humanity of the fetus. I suspect appearance is made an issue because the more recognizably a baby the fetus becomes, the more our emotions reject the idea of destroying it. But those are uninstructed emotions, not emotions based on a recognition of what the fetus is from the beginning.

Other common arguments are that the embryo or fetus is not fully sentient, or that it cannot live outside the mother's womb, or that the fetus is not fully a person unless it is valued by its mother. These seem utterly insubstantial arguments. A newborn is not fully sentient, nor is a person in an advanced stage of Alzheimer's disease. There are people who would allow the killing of the newborn and the senile, but I doubt that is a view with general acceptance. At least not yet. Equally irrelevant to the discussion is the fact that the fetus cannot survive outside the womb. Neither can a baby survive without the nurture of others, usually the parents. Why dependency, which lasts for years after birth, should justify terminating life is inexplicable. No more apparent is the logic of the statement that a fetus is a person only if the mother values its life. That is a tautology: an abortion is justified if the mother wants an abortion.

In discussing abortion, James Q. Wilson wrote, "The moral debate over abortion centers on the point in the development of the fertilized ovum when it has acquired those characteristics that entitle it to moral respect." He did not, apparently, think the cell resulting from conception was so entitled. Wilson gave an example of moral respect persisting in difficult circumstances: "An elderly man who has been a devoted husband and father but who now lies comatose in a vegetative state barely seems to be alive, . . . yet we experience great moral anguish in deciding whether to withdraw his life support." In response, my wife was moved to observe, "But suppose the doctor told us that in eight months the man would recover, be fully human, and live a normal life as a unique individual. Is it even conceivable that we would remove his life-support system on the ground that his existence, like that of the fetus, is highly inconvenient to us and that he does not look human at the moment? There would be no moral anguish but instead a certainty that such an act would be a grave moral wrong."

It is certainly more likely that we would refuse to countenance an abortion if a sonogram showed a recognizable human being than if only a tiny, guppy- like being appeared. But that is an instinctive reaction and instinctive reactions are not always the best guide to moral choice. Intellect must play a role as well. What if biology convinces us that the guppy-like creature or the microscopic fertilized egg has exactly the same future, the same capacity to live a full human life, as does the fetus at three months or at seven months or the infant at birth? "It is difficult to see," my wife added, "that the decision in the imagined case of the comatose elderly man who in time will recover is different from the abortion decision." In both cases, it is only a matter of time. The difference is that the death of the elderly man would deprive him of a few years of life while the aborted embryo or fetus loses an entire lifetime.

The issue is not, I think, one of appearance, sentience, or anything other than prospective life that is denied the individual by abortion. In introductory ethics courses, there used to be a question put: If you could obtain a hundred million dollars by pressing a button that would kill an elderly Chinese mandarin whom you had never seen, and if nobody would know what you had done, would you press the button? That seems to me the same issue as the abortion decision, except that the unborn child has a great deal longer to live if you don't press that particular button. Most of us, I suspect, would like to think we would not kill the mandarin. The characteristics of appearance, sentience, ability to live without assistance, and being valued by others cannot be the characteristics that entitle you to sufficient moral respect to be allowed to go on living. What characteristic does, then? It must lie in the fact that you are alive with the prospect of years of life ahead. That characteristic the unborn child has.

That seems to me an adequate ground to reject the argument made by Peter Singer last year in the London that supports not only abortion but infanticide. He writes that it is doubtful that a fetus becomes conscious until well after the time most abortions are performed and even if it is conscious, that would not put the fetus at a level of awareness comparable to that of "a dog, let alone a chimpanzee. If on the other hand it is self-awareness, rather than mere consciousness, that grounds a right to life, that does not arise in a human being until some time after birth."

Aware that this line leaves out of account the potential of the child for a full human life, Singer responds that "in a world that is already over-populated, and in which the regulation of fertility is universally accepted, the argument that we should bring all potential people into existence is not persuasive." That is disingenuous. If overpopulation were a fact, that would hardly justify killing humans. If overpopulation were taken to be a justification, it would allow the killing of any helpless population, preferably without the infliction of pain.

Most contraceptive methods of regulating fertility do not raise the same moral issue as abortion because they do not permit the joining of the sperm and the egg. Until the sperm and the egg unite, there is no human being. Singer goes on to make the unsubstantiated claim that "just as the human being develops gradually in a physical sense, so too does its moral significance gradually increase." That contention is closely allied to the physical appearance argument and is subject to the same rebuttal. One wonders at measuring moral significance by physique. If a person gradually degenerated physically, would his moral significance gradually decline?

Many who favor the abortion right understand that humans are being killed. Certainly the doctors who perform and nurses who assist at abortions know that. So do nonprofessionals. Otherwise, abortion would not be smothered in euphemisms. Thus, we hear the language of "choice," "reproductive rights," and "medical procedures." Those are oddly inadequate terms to describe the right to end the life of a human being. It has been remarked that "pro-choice" is an odd term since the individual whose life is at stake has no choice in the matter. These are ways of talking around the point that hide the truth from others and, perhaps, from one's self. President Clinton speaks of keeping abortion "safe, legal, and rare." Why rare, if it is merely a choice, a medical procedure without moral problems?

That there are severe moral problems is becoming clear even to many who favor abortion. That is probably why, as Candace C. Crandall observed last year in the , "the morale of the prochoice side of the abortion stalemate has visibly collapsed." The reason: "Proponents of abortion rights overcame Americans' qualms about the procedure with a long series of claims about the benefits of unrestricted abortion on demand. Without exception, those claims have proved false." The proponents claimed that rescued women from death during unsafe, back- alley abortions, but it was the availability of antibiotics beginning in the 1940s and improved medical techniques that made abortion safe well before It was argued that abortion on demand would guarantee that every child was a wanted child, would keep children from being born into poverty, reduce illegitimacy rates, and help end child abuse. Child poverty rates, illegitimacy rates, and child abuse have all soared. We heard that abortion should be a decision between a woman and her doctor. The idea of a woman and her personal physician deliberating about the choice is a fantasy: women are going to specialized abortion clinics that offer little support or counseling. (Crandall does not address the point, but it is difficult to see that bringing a doctor in for consultation would change the nature of the decision about taking human life.) She does note, however, that many women use abortion for birth control.

Crandall says she sympathizes with abortion-rights advocates. But on her own showing, it is difficult to see why. No anti-abortion advocate could make it clearer that human lives are being destroyed at the rate of 1.5 million a year for convenience.

The author Naomi Wolf, who favors the right to abort, has challenged the feminists whose rhetoric seeks to disguise the truth that a human being is killed by abortion. In a 1995 article in the , she asks for "an abortion-rights movement willing publicly to mourn the evil-necessary evil though it may be-that is abortion." But she asks a question and gives an answer about her support for abortion rights that is troublesome: "But how, one might ask, can I square a recognition of the humanity of the fetus, and the moral gravity of destroying it, with a pro- choice position? The answer can only be found in the context of a paradigm abandoned by the left and misused by the right: the paradigm of sin and redemption."

That seems an odd paradigm for this problem. It is one thing to have sinned, atoned, and sought redemption. It seems quite another to justify planning to sin on the ground that you also plan to seek redemption afterward. That justification seems even stranger for repeat abortions, which Wolf says are at least 43 percent of the total. Sin plus redemption falls short as a resolution of her dilemma. If that were an adequate resolution, it would seem to follow, given the humanity of the fetus, that infanticide, the killing of the elderly, indeed any killing for convenience, would be licensed if atonement and redemption were planned in advance.

Nor is it clear why the evil is necessary. It is undeniable that bearing and rearing a child sometimes places a great burden on a woman or a family. That fact does not, however, answer the question whether the burden justifies destroying a human life. In most other contexts, we would say such a burden is not sufficient justification. The fact is, in any event, that the burden need not be borne. Putting the child up for adoption is an alternative. The only drawback is that others will know the woman is pregnant. If that is the reason to choose abortion, then the killing really is for convenience.

But it is clear, in any event, that the vast majority of all abortions are for convenience. In those cases, abortion is used as merely one more technique of birth control. A 1987 survey of the reasons given by women for having abortions made by researchers with the Alan Guttmacher Institute, which is very much pro-abortion, demonstrated this fact. The following table shows the percentage of women who gave the listed reasons.

Reason Total Percentage

Woman is concerned about 76 how having a baby could change her life

Woman can't afford baby now 68

Woman has problems with 51 relationship or wants to avoid single parenthood

Woman is unready for responsibility 31

Woman doesn't want others to know 31 she has had sex or is pregnant

Woman is not mature enough or is 30 too young to have a child

Woman has all the children she 26 wanted, or has all grown-up children

Husband or partner wants woman 23 to have abortion

Fetus has possible health problem 13

Woman has health problem 7

Woman's parents want her to 7 have abortion

Woman was victim of rape or incest 1

Other 6

It is clear that the overwhelming number of abortions were for birth control unrelated to the health of the fetus or the woman. Moreover, of those who were concerned about a possible health problem of the fetus, only 8 percent said that a physician had told them that the fetus had a defect or was abnormal. The rest were worried because they had taken medication, drugs, or alcohol before realizing they were pregnant, but did not apparently obtain a medical confirmation of any problem. Of those aborting because of their own health, 53 percent said a doctor had told them their condition would be made worse by being pregnant. Some of the rest cited physical problems, and 11 percent gave a mental or emotional problem as the reason. Only 1 percent cited rape or incest.

The survey noted that "some 77 percent of women with incomes under 100 percent or between 100 and 149 percent of the poverty level said they were having an abortion because they could not afford to have a child, compared with 69 percent of those with incomes between 150 and 199 percent and 60 percent of those with incomes at or above 200 percent of the poverty level." The can't-afford category thus included a great many women who, by most reckonings, could afford to have a baby and certainly could have put the baby up for adoption.

This demonstration that abortion is almost always a birth control technique rather than a response to a serious problem with the mother's or the fetus' health must have been a considerable embarrassment to the pro-abortion forces. Perhaps for that reason no survey by them seems to have been reported since. More recent statistics by anti-abortion groups, however, bear out the conclusions to be drawn from the Guttmacher Institute study. The reasons most women give for having an abortion are "social": a baby would affect their educations, jobs, lives, or they felt unable to handle it economically, their partners did not want babies, etc.

Perhaps the most instructive episode demonstrating the brutalization of our culture by abortion was the fight over "partial-birth abortions." These abortions are usually performed late in the pregnancy. The baby is delivered feet first until only the head remains within the mother. The aborting physician inserts scissors into the back of the infant's skull and opens the blades to produce a hole. The child's brains are then vacuumed out, the skull collapses, and the rest of the newly made corpse is removed. If the head had been allowed to come out of the mother, killing the baby then would be the criminal act of infanticide.

When it was proposed to outlaw this hideous procedure, which obviously causes extreme pain to the baby, the pro-abortion forces in Congress and elsewhere made false statements to fend off the legislation or to justify an anticipated presidential veto. Planned Parenthood and the National Abortion and Reproductive Rights Action League stated that the general anesthesia given the mother killed the fetus so that there is no such thing as a partial-birth abortion. Physicians promptly rebutted the claim. Local anesthesia, which is most often used in these abortions, has no effect on the baby and general anesthesia not only does not kill the baby, it provides little or no painkilling effect to the baby. The vice president of the Society for Obstetric Anesthesia and Perinatology said the claim was "crazy," noting that "anesthesia does not kill an infant if you don't kill the mother." Two doctors who perform partial-birth abortions stated that the majority of fetuses aborted in this fashion are alive until the end of the procedure.

Other opponents of a ban on partial-birth abortions claimed that it was used only when necessary to protect the mother's life. Unfortunately for that argument, the physician who is the best- known practitioner of these abortions stated in 1993 that 80 percent of them are "purely elective," not necessary to save the mother's life or health. Partial-birth understates the matter. The baby is outside the mother except for its head, which is kept in the mother only to avoid a charge of infanticide. Full birth is inches away and could easily be accomplished.

No amount of discussion, no citation of evidence, can alter the opinions of radical feminists about abortion. One evening I naively remarked in a talk that those who favor the right to abort would likely change their minds if they could be convinced that a human being was being killed. I was startled at the anger that statement provoked in several women present. One of them informed me in no uncertain terms that the issue had nothing to do with the humanity of the fetus but was entirely about the woman's freedom. It is here that radical egalitarianism reinforces radical individualism in supporting the abortion right. Justice Harry Blackmun, who wrote and who never offered the slightest constitutional defense of it, simply remarked that the decision was a landmark on women's march to equality. Equality, in this view, means that if men do not bear children, women should not have to either. Abortion is seen as women's escape from the idea that biology is destiny, to escape from the tyranny of the family role.

Discussions about life and death in one area influence such decisions in others. Despite assurances that the abortion decision did not start us down a slippery and very steep slope, that is clearly where we are, and gathering speed. The systematic killing of unborn children in huge numbers is part of a general disregard for human life that has been growing for some time. Abortion by itself did not cause that disregard, but it certainly deepens and legitimates the nihilism that is spreading in our culture and finds killing for convenience acceptable. We are crossing lines, at first slowly and now with rapidity: killing unborn children for convenience; removing tissue from live fetuses; contemplating creating embryos for destruction in research; considering taking organs from living anencephalic babies; experimenting with assisted suicide; and contemplating euthanasia. Abortion has coarsened us. If it is permissible to kill the unborn human for convenience, it is surely permissible to kill those thought to be soon to die for the same reason. And it is inevitable that many who are not in danger of imminent death will be killed to relieve their families of burdens. Convenience is becoming the theme of our culture. Humans tend to be inconvenient at both ends of their lives.

ROBERT H. BORK is the John M. Olin Scholar in Legal Studies at the American Enterprise Institute. This article is adapted from his new book, , published by ReganBooks, an imprint of HarperCollins. Copyright (c) 1996 by Robert H. Bork.


1 I objected to the moment it was decided not because of any doubts about abortion, but because the decision was a radical deformation of the Constitution. The Constitution has nothing to say about abortion, leaving it, like most subjects, to the judgment and moral sense of the American people and their elected representatives. and the decisions reaffirming it are equal in their audacity and abuse of judicial office to Just as forced a southern proslavery position on the nation, is nothing more than the Supreme Court's imposition of the morality of our cultural elites.

2 In discussing abortion I will not address instances where most people, however they might ultimately decide the issue, would feel genuine moral anguish, cases, for example, where it is known that the child will be born with severe deformities. My purpose is not to solve all moral issues but simply to address the major ones. Abortions in cases of deformity, etc., are a very small fraction of the total and, because they introduce special factors, do not cast light on the direction of our culture as do abortions of healthy pre-borns performed for convenience.

This article appeared in the October 1996 issue of "First Things." To subscribe write First Things, Dept. FT, P.O. Box 3000, Denville, NJ 07834-9847, 1-800-783-4903. Published monthly except bimonthly June/July and August/September for $29.00 per year.