When do we become a human?

The recent US Supreme Court Dobbs decision is more complex than it seems

Julie has one sister. I knew that her mom Marje had numerous miscarriages while trying to have Julie (the younger of the two). And I knew that Marje and Jim wanted (at least) one more kid. (In an attempt to prevent preterm labour, Julie may have been exposed to DES in utero - a drug used to prevent miscarriage. It was yet another of medicine’s “Oops, sorry about that!” moments that you think we would have learned lessons from.).

There were things I didn’t know until very recently though. Specifically, that Marje had been approaching 6 months pregnant when she had a spontaneous abortion. She gave birth to a 22+ week preemie. Although the child may have lived if born in 2022, she didn’t have a chance in Moncton in the early 70’s. Marje’s baby girl breathed for a few hours before she died.

Marje told me this recently when Julie and her sister Bev were sitting on opposite ends of a 3-person couch. I pictured a ghost sister sitting between them. A potential human who never was. Or more correctly, was, but only briefly. A pang of sorrow washed over me, followed by feeling ridiculous for being so sentimental.

How sad should that news have made me? Was this the loss of a human being, or just a false start to be shrugged off? I know that for some families of certain faiths, babies of this age were named, baptized, and buried. Julie’s sister did get a name - Terry Louise, and was buried in Elmwood cemetery outside Moncton. Is that silly? Or beautiful? Was Julie’s almost-sister “Not yet a human”?

Is this a human yet? One of the theories on why younger generations are becoming slightly LESS liberal towards abortion is the ubiquity of prenatal ultrasound. We know what a fetus looks like. There is an analogy with the famous “Earthrise” photo that some feel spawned the modern environmental movement by making us realize we are on “Spaceship Earth” together.

No solutions, only a negotiated ceasefire

There is a saying that a good compromise sends both sides away unsatisfied. We’ll never come to an agreement on abortion as a society. The issue is too intractable to “solve” in any sense of that word. Best case scenario, we agree to disagree, and continue living with one another despite our differences.

This is because both sides have reasonable points.

On the pro-choice side, it’s true that a woman should have control over her own body. (He-hem, just like people should be free to decide whether to take an experimental vaccine or not!). Bodily autonomy is a very important and fundamental principle in modern society. Who am I to know the pressures - mental, physical, social, financial, emotional - on a woman deciding whether to abort her baby? How can anyone but her make that decision?

On the pro-life side, there is something truly “human” about a proto-human. From the moment sperm meets egg, that is a life. It has unique DNA shared by nobody else in the world. When it dies, it is the end of a human. Like Julie’s ghost-sister.

Attempts have been made to draw a sharp line before which abortion is acceptable, and beyond which it is not. Roe v. Wade used trimesters. But trimesters are artificial. We chose a hockey paradigm (3 periods) for human pregnancy, but why not go with soccer and have 2 halves, or football and have 4 quarters? And why should those artificial lines have any bearing on when an abortion is acceptable or not?

Does a heartbeat make us human? Not specifically. Most animals have one of those. Neural tissue development? Jellyfish have neural tissue, and I used to throw them at my brothers on the beach. Viability outside the womb? That’s pretty nebulous and grey, and changes over the decades, with the aggressiveness of medical care or availability of local services. Any line in the sand is washed away by the application of logic, science, or philosophy.

The only philosophically and logically consistent and defensible line I can see is that life starts at conception. But that would mean I should be just as upset over a miscarriage at 3 weeks that a woman assumes is an irregular period as I should over Terry Louise, or my friend who had a stillbirth at 37.5 weeks. And it would mean I’d be upset a lot, as early miscarriage is common (and probably nature’s way of halting non-viable pregnancies). Some estimates say that a third of pregnancies miscarry.

Abortion is perhaps the most polarized issue in modern society

We have argued about abortion for centuries. And we will continue to do so in the future. And as with all other hot-button issues, the current political climate and toxic effect of social media have polarized us further.

There are 2 extremes, both highlighted by the opposing team, in an attempt to win through the straw-man technique.

On one extreme are pro-life absolutists who feel that once sperm meets egg, or even before (if they feel birth control is a sin), the new life is sacrosanct and can’t be ended under any circumstances. Even things like rape, medical danger to the mother or a verifiable catastrophic non-survivable disability are not acceptable reasons to allow abortion.

On the other extreme are pro-choice absolutists who believe that a mother who is 39 weeks pregnant with a healthy child should be allowed to abort if she suddenly changes her mind. This is the logical-illogical conclusion if we are guided only by “My body my choice” without any consideration to the well-being or rights of the developing baby.

Like unicorns or white supremacists, I hear these extremists often discussed, but have never actually met one. I suppose they do exist. But everyone I have ever talked to is somewhere in the middle.

Fetus or Baby?

To spell out the problem clearly: While still in the womb what we first think of as a “fetus” (which in early stages of development is hard to distinguish from any other animal by the way - it’s hard to tell a dog from a human when the fetus is 3 weeks old) becomes a “baby” which although unborn is clearly human in almost all senses. But when does this occur? At what point do we start to weigh the baby’s rights against the mother’s?

Pregnancy, and the issue of abortion in particular, is enough to make a libertarian apoplectic. There are two humans, each endowed with rights, but one is nested inside the other. Even when humans are not joined by an umbilical cord, it’s hard to balance rights. I want to play my stereo. My neighbour needs to sleep. I want to run a septic system in my yard. My neighbour just dug a well. Whose rights take priority?

Now shove one human inside the other. How many of us are OK if we see an obviously-pregnant woman swigging a bottle of vodka and smoking a big reefer? The libertarian in me respects her right to damage herself. But somehow I (and mostly everyone I’ve ever met) think she owes a duty to her baby not to damage or kill him or her. It’s not just about her rights once she is pregnant - there are 2 people in that one body.

The US is not the same as Canada, and the overturning of Roe v. Wade is not what the media says it is

The overturning of Roe v. Wade by the Supreme Court of the US (SCOTUS) was portrayed in the media as a disaster for woman’s rights. Some will find it hard to ever think of it in any terms other than that. But it’s much more complicated. And I strongly feel it was the correct decision. You can read it here if you want.

Here in Canada, we think it’s just fine for political-appointee judges (selected by their politics, and often their donation histories) to set “precedent” that we all have to live by. I personally think this is toxic (and so does Bruce Pardy, whose opinion I greatly respect). In a democracy, the law of the land is supposed to be set by elected representatives that are answerable to the public. The court enforces the decisions of parliament and/or the constitution. In Canada, we are increasingly ruled by activist judges, who are above criticism and answerable to no one.

The SCOTUS doesn’t have that same mandate of essentially governing us by court edict, either explicitly or by implication as has happened in Canada. They are tasked to uphold the constitution of the USA. Period. They are not bound to precedent, but are rather free to overturn a previous decision if they feel it was in error. (For those arguing that precedent should remain sacred, remember that things like slavery and racial segregation were originally upheld by the supreme court before being overturned. Thank goodness stare decisis is not supreme.)

There was no “constitutional right to abortion”. Let alone those who wanted strict abortion restriction, many pro-choice advocates at the time of Roe v. Wade said that the decision was wrong. Even Ruth Bader Ginsburg, who has been posthumously deified by people who know nothing about her, thought it was an overreach that was destructive in the long term, and thought that abortion liberalization should have happened through state legislatures.

Most Canadians don’t know that the USA was referred to in the plural for the first many decades of its existence. They were not founded or envisioned as a monolithic nation with a strong federal government, but rather a voluntary amalgam of self-governing entities that cooperate and cede power to the federal government only in areas where this is unavoidable, like national defence. Put more simply, the feds were never supposed to run the show. That was the whole point of breaking away from Britain - to avoid being ruled by a far-away, unaccountable power.

The constitution of the US is clear that issues like abortion (those not defined explicitly in the constitution) are to be decided state-by-state. Every state has the right to elect its own legislature, have its own arguments, and come to its own decisions about the issue. That is what the Dobbs decision actually says. It does NOT make abortion illegal but rather says that states can decide for themselves.

Many more liberal countries have more restriction on abortion

There is another major misunderstanding by pro-choice advocates. Currently much of the US is far less restrictive for abortion than many far more “liberal” countries in Europe, where abortions are not permitted after 16, 14 or even 12 weeks. Portugal, where all drug use is now legal, only liberalized its abortion laws circa 2007. Roe v. Wade left the door fairly wide open for many liberal US states to allow abortion FAR later than 16 weeks, in some states late enough to make even those who believe in a woman’s right to choose quite uncomfortable. How many of us are OK with a woman aborting her baby at 38 weeks?

The Dobbs decision does nothing to prevent liberal states from keeping their status quo or even to allow later-term abortions. What it does is allow state legislatures to decide for the people of that state what a reasonable limit should be. The guys at The Fifth Column podcast do a great job of discussing this, as does John Carpay on the JCCF podcast.

Will some states greatly restrict abortion? Yes. But my guess is that the majority will not change. I don’t know what to expect, but I do know that we will keep fighting and arguing over this issue, as it is one that can never be decided to everyone’s satisfaction.

(please check out the next Substack post, a podcast discussion with physician/law student Aris Lavranos, where we go a little more in-depth on Dobbs and the legal and moral issues around abortion policy)