I have often argued that the evolutionary psychology of moral judgment shows the combination of reason and emotion in our moral experience. My understanding of this point has been shaped by my reading of Aristotle, David Hume, Adam Smith, and Charles Darwin. In some previous posts (here and here), I have said that the debate over the morality of abortion illustrates this complex interaction of reason and emotion.
Human beings have an evolved natural desire for parental care. So we tend to feel a sympathetic concern for needy children. And we condemn the unjustified killing of children as murder. Condemning abortion as murder will depend on our rational judgment as to what is being aborted and on the strength of our moral emotion of care for children. The more a zygote, an embryo, or a fetus resembles a human person, the more claims it exerts on our evolved moral feelings for children.
We can see this at work in our current debate over the "Texas Heartbeat Act"--Texas Senate Bill 8. This law prohibits abortion any time after a "fetal heartbeat" can be detected, which is said to be at six weeks of gestation. This is so early that often women are not yet aware that they are pregnant. The only exception in the law is for a "medical emergency." There are no exceptions for cases of rape or incest. So a woman who has been impregnated by a rapist could be forced to give birth to his child.
Remarkably, the most novel feature of this law is that it prohibits any Texas governmental official from enforcing the law. Instead, it allows any American citizen to file a civil suit against anyone who contributes in any way to an illegal abortion in Texas. If they win the suit, they must be awarded $10,000 and have their legal expenses paid. So, in effect, any citizen can become a bounty hunter or a private attorney general to enforce the law. This makes it almost impossible to challenge the law as unconstitutional, because one cannot sue the Attorney General of Texas or any other governmental official as the enforcer of the law. (This strange legislative tactic was devised by Jonathan Mitchell.)
The effect of the law is to prohibit almost all abortions. This overturns Roe v. Wade, the 1973 U.S. Supreme Court decision in a case coming from Texas that declared that woman's decision to have an abortion was a constitutional right as long as the abortion occurred before the third trimester of the pregnancy. (By the way, I am not agreeing with the Roe decision, because I do not see that it is clearly grounded in the Constitution.)
In the moral rhetoric of the debate over this Texas law, we can see that people have to appeal to both reason and emotion.
THE EMOTIONAL RHETORIC OF THE HEART
The anti-abortion banner pictured above says "Every Heart Matters." Why doesn't it say "Every Zygote Matters"? Isn't it because the word "heart" has literal and metaphorical meanings that have more emotional weight than "zygote"?
This emotional rhetoric of "the heart" originated with Janet Folger Porter, an anti-abortion activist in Ohio, who formulated the slogan "Abortion Stops a Beating Heart." It's the popularity of this slogan that led to the Texas law with the official title "Texas Heartbeat Law."
If you read the law, you will see that it defines "unborn child" as "a human fetus or embryo in any stage of gestation from fertilization until birth." But if human life begins at fertilization, then why doesn't the law protect zygotes from abortion? Isn't it because "zygote" doesn't evoke that same deep emotions as "heartbeat"?
The emotional overtones of "heartbeat" will be evoked only if we conclude that there really is a heartbeat at six weeks of a pregnancy. So our emotional reaction depends on a factual judgment about embryological development.
THE RATIONAL RHETORIC OF EMBRYOLOGY
The Texas law provides that the ban on abortions begins whenever there is a "detection of fetal heartbeat." Notice that the law does not specify that this occurs at six weeks, although the people promoting this law have generally assumed that six weeks is the critical point for a heartbeat.
The medical and embryological evidence suggests, however, that to speak of "detection of fetal heartbeat" at six weeks is false. At six weeks, it's not a fetus but an embryo, there is no heart, and so there is no heartbeat. At six weeks, if a doctor puts a stethoscope on a mother's belly, he will not hear a heartbeat. It is true that in recent years ultrasound technology has become sensitive enough to detect a flutter in the cardiac cells of the embryo caused by electrical activity, but there is no sound of a heart beating, because there is no fully formed heart with contracting valves.
This indicates a flaw in the language of the law. A doctor in Texas could now perform an abortion with a woman whose pregnancy is past six weeks, while arguing that this does not violate the law, because the doctor could say that an examination with a stethoscope did not detect a heartbeat in the embryo. For most mothers, fetal heartbeat is not heard with a stethoscope until about 18-20 weeks of pregnancy.
This factual judgment that there is no "beating heart" in a six-week old embryo would deny the emotional appeal of the anti-abortion "heartbeat" rhetoric.
Another strange feature of this law is the provision stating that "pregnancy . . . is calculated from the first day of the woman's last menstrual period." This makes no sense because in an average 28-day menstrual cycle, ovulation usually occurs about 14 days before the start of the next menstrual period. So if a woman's egg is fertilized, this occurs about 14 days after her last menstrual period.
Notice also the implications of the law's calculation of pregnancy. Most women have no hint that they might be pregnant until they miss a menstrual period, and then they might take a pregnancy test. According to the law, they are already 4 weeks pregnant. So women will have at most 2 weeks from the time they know they are pregnant to decide on a possible abortion before the law will prohibit this as beyond the 6 week limit.
DOES ABORTION VIOLATE DIVINE LAW?
The Texas law says nothing about divine law, because the Texas legislators wanted to avoid any religious language that would expose them to the charge of an unconstitutional establishment of religion. But of course most of the opponents of abortion are Catholics and evangelical Protestants who are moved by the conviction that abortion is contrary to God's law.
Oddly enough, however, there is almost no evidence in the Bible or in biblical religious traditions that abortion violates divine law. The Bible never condemns abortion. There is no biblical evidence that Moses or Jesus or the apostles ever opposed abortion.
Until recently, Christian theologians like St. Augustine and others have refused to say that abortion is wrong. In his Inferno, Dante has no place in Hell for the punishment of abortionists.
St. Thomas Aquinas identified the beginning of human life as coming not at the start of a pregnancy but near the end. Following Aristotle's biology, Aquinas believed that in the earlier stages of a pregnancy, there was first a nutritive soul (like plants) and then an animal soul, but only near childbirth did the truly human rational soul emerge through a miraculous infusion by God.
Since they cannot appeal to divine law, the Catholic and Protestant opponents of abortion must rely on reasoning about natural law--that is, reasoning about the natural process of human embryology and the natural moral emotions that might be evoked by that process. The "Texas Heartbeat Act" has tried--and failed--to do that.
A POLITICAL BLUNDER BY THE REPUBLICAN PARTY
Shortly before midnight on September 1, the U.S. Supreme Court issued its decision--by a 5 to 4 vote--to refuse emergency petitions to block the implementation of the Texas law. This meant that for the first time in 50 years, the Supreme Court had allowed Roe v. Wade to be effectively overturned. This was a stunning victory for the Republican Party's anti-abortion movement.
Or was it? Many Republican leaders have been silent about this. And many have downplayed the significance of the Supreme Court's decision. Senate Minority Leader Mitch McConnell dismissed the court's decision as a "highly technical decision." Republican Senator Bill Cassidy said the court's decision was "clearly not an assault . . . upon Roe v. Wade." But it clearly was!
What's going on here? Why aren't the Republican leaders celebrating the overturning of Roe?
Could it be that they never intended for this to happen, because they knew that this would provoke a public backlash that would devastate the Republican Party? For many years, Republicans could pass state legislation overturning Roe with the expectation that the federal courts would block the enforcement of these laws. Consequently, Republican leaders could pretend that they were attacking Roe, while remaining confident that Roe would be preserved, and so they would never face the public anger that would be stirred up if they actually did overturn Roe.
Now, suddenly, Republican leaders face the consequences of a great political blunder, which could give the Democrats a great victory in the mid-term elections next year.
So I'm trying to imagine how a suit would go:
1) Woman comes into clinic wanting an abortion.
2) She is asked (as I'm sure happens now) when her last period was.
3) She says 8 weeks or 10 weeks or 12 weeks or ....
4) A clinic doctor listens for a heartbeat and says he hears none. This goes on the patient's record.
5) An abortion is performed.
6) Someone sues. The record is introduced that the doctor heard no heartbeat.
7) The judge enters a verdict against the plaintiff.
Since the abortion has already occurred, nobody can go back and detect a fetal heartbeat--even if there was one.
It seems to me that in order to have any practical effect, the Texas legislature is going to have to set up some sort of supervision of "fetal heartbeat detection", defining exactly what they mean and how to detect it, and maybe requiring "pre-clearance" from a state cadre of doctors, like the federal monitors that are in states subject to the Voting Rights Act.
But maybe anti-abortion people want public attention on the question of when a heartbeat is detectable. It "humanizes" the object of the abortion and makes people think more of a cute little puppy or kitten and less of a woman in a bad situation. Especially if people start visualizing that "An Embryo at Seven Weeks" picture.
Yes, this is a very confusing law. There are reports that most abortion clinics in Texas are planning to close. But as you indicate, it's hard to see how the suits against them could succeed. Once this is understood, the clinics might remain open; and then the Texas Legislature will be forced to reconsider their badly drafted law.
As I suggest at the end of my post, I suspect that the Texas Republican legislators were sloppy in their drafting of the law because they never expected that the federal courts would allow it to go into effect.
Maybe I'm too cynical but my feeling is that the "reports that most abortion clinics in Texas are planning to close" are a scare tactic from the clinics and their allies, putting out a worst case scenario. Or perhaps they really are scared and haven't thought things through.
And maybe I'm not cynical enough but I wouldn't be surprised if most of the people who voted for the law actually think it will be popular and want it to be upheld. It would not be the first time that political people have deluded themselves as to how much they represent the will of the people.
DNA means life begins at conception. Most states set the end of life as either heart stoppage or brain wave stoppage shouldn't the start of life also be set to similar rules. Viability has change since Roe should that effect the debate? We know fetus feel pain so why isn't this part of the debate. Your post ignores much about the changes into medical changes in keeping embryos alive.
There's an Old Testament law, Exodus 21:22-23, that, depending on how it's translated, can be understood as meaning either that abortion is assassination, or not. Pro-life Christians tend to favor translations that equals abortion to assassination, but it results in a quite convoluted text. What it says is very specific. Paraphrasing from the different translations:
"If two men are fighting with each other, and they hit a pregnant woman, who then suffers a miscarriage, but there's no further damage (to _____), the culprit must pay a fine to the woman's husband, to be determined by the judge. However, if (_____) dies from the injuries, then the culprit is an assassin and must be dealt the death penalty."
For Pro-life Christians the object of the law is the baby. In their view what the law is saying is that if the baby is prematurely born, but survives, then the culprit pays a fine, otherwise he caused an abortion and must be killed.
For pro-choice Christians the object of the law is the woman. In their view, if the injury caused her to miscarriage but she survived, the penalty is a fine, otherwise if she dies from the miscarriage then the culprit caused her death, and must be killed.
It's quite interesting to look at all the different translations of these two verses, since it's pretty clear from how it's translated on which camp the translator was: Exodus 21:22 and 23. And then to consider how prevalent it was for a pregnant woman to be hit by fighting men, to then give premature birth to a baby who survived the situation, for the subtle distinction of establishing a fine in those cases.
By the way, here's also a bit of context to understand the extreme divergence in those translations:
In Old Testament terminology what's usually translated as "soul" (nephesh, roughly "life") is a substance in an animal or person's blood that can be consumed, traded, given away, lost, received etc., while what's usually translated as "spirit" (ruach, "wind", neshamah, "breath", and a few other terms) is a different substance, located in the nose.
Nepheshes, hierarchically speaking, aren't that important, as one can go around reasonably well without theirs even if in a diminished capacity. All other things being equal it's better to preserve one's own nephesh, although giving it away to help another is quite virtuous. It's also not a good idea to consume too many nepheshes from animal food sources, from other people's trading theirs, or whatever, as that can drive one insane. After death one's nephesh dies, similarly to the body.
Ruaches/neshamahs, in contrast, are very important, since they come from God himself, entering the nose at the moment the newborn inhales air for the first time. It stay there, in the nose, for as long as they're alive, and upon death departs, going back to God. Possessing a ruach/neshamah is what distinguishes a human being from a mere animal.
This classical Biblical distinction helps make sense of the difference in translations. From the traditional perspective, an unborn baby hasn't breathed yet, so while they do have blood flowing in their bodies, that only makes them into nephesh-possessing beings, hence why the punishment is be a mere fine: no full human being -- that is, a living human body that inhaled air at least once thus possessing a ruach/neshamah -- was assassinated, thus the typical punishment for an assassination doesn't apply.
To interpret as pro-lifers to, thus, requires discarding the Biblical specificities about nephesh and ruach/neshamah, specially when and how each becomes attached to a body, and instead go for other criteria, such as the not-quite-the-same Greek notions of psyche and pneuma. Then that version fits, at the logical cost of setting a law governing an exception, to an exception, of an exceptional circumstance.
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