Abortion Division: Why Americans Disagree on Such a Fundamental Issue of Rights

By Blake M Thulin

The Abortion Debate: An Unbiased, Step-by-Step Guide to the USA's Most Divisive Topic

 

Why is abortion, a core issue of rights, so passionately disputed in America? It's undeniably the most divisive and emotionally charged subject in the United States. While many people seem firmly entrenched in their views, others are less informed or may not fully comprehend the principles and issues fueling this nationwide debate. Finding clear and unbiased information can be daunting.

If you want to elevate the quality of your discussions but find the topic of abortion complex and loaded, Blake M. Thulin's Abortion Division helps you appreciate differing perspectives—or even helps you to better understand your own. Without a trace of partiality, this comprehensive guide covers both sides of the fiery debate, offering essential tools for identifying and defending your position.

Written for an audience with no background in law, this book uncovers:

• The evolution of abortion law from Greco-Roman times to the present day
• An in-depth case analysis of Roe v. Wade and how its shortcomings led to its recent overturn
• The role of moral psychology in shaping public opinion on sexual health, pregnancy, and childbirth
• Medical ethics surrounding the procedure
• Effective argument strategies for both Pro-Life and Pro-Choice advocates

This book is designed to inform, not persuade. Become well-versed in the legal, medical, and moral aspects of abortion and gain the confidence to engage in informed discussions about the cases and principles that define abortion law. If you're ready to explore the facts on America's most explosive topic, purchase your copy of Abortion Division today.

• Language: English
• Publisher: Blake Thulin
• Release date: Aug 29, 2023
• ISBN: 9798988195313

Book preview

Chapter 1

INTRODUCTION

Abortion is among the most polarizing and divisive issues in modern American politics. This controversy touches the very core of our concepts of individual rights, moral psychology, and the definition of humanity. Concepts of bodily autonomy and personal freedom are pitted against perceptions of the origins and value of human life.

That dichotomy is further complicated by the fact that reproductive rights and roles are heavily weighed upon one-half of the population and not the other. Women have traditionally been tasked with the duty to bear and care for children, if not for biological reasons, then for societal ones. As concepts of equality and women’s rights have developed over time, questions regarding reproductive rights have become increasingly pertinent to the larger gender discussion.

In many Western countries, women have more opportunity than ever before. Some believe that abortion and other reproductive rights determine whether or not a woman has access to these economic opportunities. As Lilly McGee with the League of Women Voters explains, for women...our basic freedoms hinge on our ability to control our reproductive health. Our physical and psychological wellbeing, financial resources, capacity to gain and maintain employment, and even our ability to eat certain foods are all dependent on our reproductive choices.¹

This book will start by covering various historical positions on the issue of abortion in Western Civilization. From there, I will discuss Griswold v. Connecticut, one of the foundational cases necessary to the reasoning found in the Roe decision. Roe v. Wade itself (the case that had recognized a constitutional right to abortion) will then be discussed in detail, along with the dissenting opinions. I will then wrap up the legal discussion with modern legal developments. After discussing the legal aspects of abortion, I will develop a moral analysis framework using Jonathan Haidt’s Moral Foundations theory, which will help explain why people disagree on this issue.² I will then discuss the medical aspects of abortion and apply the moral framework previously developed. Following that, I will then apply legal and medical knowledge by putting the concept of abortion on trial, where I will present the arguments of a prosecutor and defender. You will be the jury. From there, I will provide debate techniques and advice to both pro-life and pro­choice advocates. This journey will conclude with closing thoughts about the future of this issue and our country.

First, some background and details on the purpose of my book. What makes me qualified to even talk about this stuff? At the time of this writing, I recently graduated from the Santa Barbara College of Law, a California State Bar accredited law school. Although it may not be as famous as Harvard or Yale, getting my juris doctor degree was certainly a challenge. However, abortion is about more than just the law. Throughout this book, I rely heavily on external sources from various fields of expertise to more fully present all aspects of the abortion issue, including the legal, moral, and medical components.

I have written this book not to argue for one position or the other, but rather to expand the depth and scope of the reader’s understanding of the legal and moral reasoning behind each side. This book is for everyone who is interested—from the most passionate advocates on either side to those who have not yet formed an opinion. My goal is to provide a comprehensive understanding of the historical, legal, medical, and moral aspects of this issue.

Although this book is about abortion, it is also about us being thinking, moral creatures and why we disagree. Why is there a moral debate on this subject? For the purposes of this book, I don’t care what your own positions or opinions are. I just want you to think.

Accordingly, this book is not only about what people’s positions are, but why they hold their positions. While we have what is functionally a two-party system in the U.S., the abortion issue actually has many more sides. I intend to discuss not only the legal aspects of the abortion issue, but also the philosophical and historical contexts that frame the issue.

Personally, I have very strong feelings and biases about abortion, but I am not going to discuss my own opinions in this book. I have no intention of deceiving you. The goal of this book is not to convince you one way or the other about the issue. It is to demonstrate what motivates each side to hold their respective positions and to understand those positions more fully. This book is a commentary on the legal and ethical issues of abortion, not an argument for a particular position. Although my biases will inevitably creep in, my actual opinion on the matter is not relevant to the larger points I will be making. I will not be proposing solutions either, as this book is about what has led us to our current situation and why we disagree, not about how to get out. I will leave the solutions up to you.

I believe that the philosophical beliefs and principles under­pinning the debate—albeit, controversial—are such that the average adult can understand them. It is my intention to explain those philosophies in the plainest language possible to facilitate that understanding. These philosophies and perspectives will then be applied to the historical, medical, moral, and societal aspects of abortion.

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1 Lilly McGee, There Is No Equality Without Reproductive Rights, League of Women Voters, last updated September 29, 2021, https://www.lwv.org/blog/there-no-equality-without-reproductive-rights.

2 Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Vintage Books, 2012).

PART I

THE HISTORY AND

LEGAL CALCULUS

OF ABORTION

Chapter 2

THE HISTORY OF ABORTION AND REPRODUCTIVE PUBLIC POLICY

To properly understand the current context of the abortion debate, it is important to understand how we got here. Roe v. Wade, which was decided in 1973, governed the practice of abortion in the U.S. up until 2022, when it was overturned by Dobbs v. Jackson Women’s Health Organization.³ It can be difficult to understand the context in which those decisions and similar decisions were made, almost 50 years after the fact.

Furthermore, many of the current arguments and reasoning found in the debates today can be traced back to two major influences on Western Civilization: the Greco-Roman tradition and the Judeo-Christian tradition. Therefore, in order to more fully understand modern arguments regarding the abortion issue, it is important to understand the history of reproductive public policy and philosophy.

Greco-Roman Traditions of Abortion, Exposure, and Reproductive Public Policy

The Greco-Roman tradition focuses heavily on the societal benefits of reproductive controls. The emphasis here appears to be that of the collective health of society or economic security of the parents, which took precedence over the existence of those who are considered to be born inferior, deformed, or pose an undue economic burden.

One of the common methods of dealing with unwanted children at the time was known as exposure. The scholar H. Bennet considers exposure to be a form of economic infanticide as a system recognized by law and society, under which it was possible for a man of wealth and standing to order his legitimate children to be abandoned, presumably to die, simply because he had enough already or for some other reason did not care to accept the responsibility for their rearing.⁴

Although Bennett places a heavy emphasis on the father’s economic motivation for exposing an infant, exposure played a major role in reproductive public policy, as it was believed that children who were weak, deformed, or inferior would have negative effects on society.

Aristotle in Politics, Book 7, describes a public policy designed to prevent deformed children from being raised and recommends regulation to prevent such children from being reared. Further, he also places a limit upon the lawful use of abortion for children conceived in violation of the regulations.

As to exposing or rearing the children born, let there be a law that no deformed child shall be reared; but on the ground of number of children, if the regular customs hinder any of those born being exposed, there must be a limit fixed to the procreation of offspring, and if any people have a child as a result of intercourse in contravention of these regulations, abortion must be practised on it before it has developed sensation and life; for the line between lawful and unlawful abortion will be marked by the fact of having sensation and being alive.⁵

Here, Aristotle’s recommended laws prevent any child, regardless of how they were conceived, from being raised if they are deformed. The alternative to raising a child is to expose the child by abandonment to the elements to allow them to die. Aristotle goes on to recommend laws limiting the procreation of offspring based on the age of the parents.

And since the beginning of the fit age for a man and for a woman, at which they are to begin their union, has been defined, let it also be decided for how long a time it is suitable for them to serve the state in the matter of producing children. For the offspring of too elderly parents, as those of too young ones, are born imperfect both in body and mind, and the children of those that have arrived at old age are weaklings. Therefore the period must be limited to correspond with the mental prime; and this in the case of most men is the age stated by some of the poets, who measure men’s age by periods of seven years — it is about the age of fifty. Therefore persons exceeding this age by four or five years must be discharged from the duty of producing children for the community, and for the rest of their lives if they have intercourse it must be manifestly for the sake of health or for some other similar reason.⁶

Although many of today’s discussions regarding abortion focus on the rights of the individual, Aristotle’s recommended public policies do not address individual rights, and in fact seem to be motivated entirely by the goal that no deformed child shall be reared. Aristotle goes on to recommend legal limits to sexual intercourse, a public policy that many modern Americans would find to be an unacceptable breach of personal liberties.

On the surface, the prevention of the rearing of deformed children may have been important in societies or families with limited resources. Children had very limited productivity until adulthood. Using familial and societal resources to support deformed children, who would presumably mature into non-productive adults, would be a waste of the limited resources. The societal impact argument is a common argument that arises today in modern societies, although in a slightly different context.

The other major reproductive public policy justification we see in Aristotle’s writing is a limitation on the practice of abortion for pregnancies that occur as a result of intercourse in violation of the regulations. As stated by Aristotle, Abortion must be practised on it before it has developed sensation and life.⁷ This limitation appears to be grounded on the idea that abortion may cause pain to a being that has sensation and life and should be avoided. However, concerns regarding sensation and life appear to be secondary considerations in light of the law that no deformed child shall be reared.

Taken as a whole, Aristotle’s public policy recommendations appear to create a hierarchy of interests that must be considered. At the top is society, which is to be benefitted most directly by the law that no deformed child shall be reared. The middle of the hierarchy consists of people who engage in sexual intercourse according to Aristotle’s age stipulations and includes non-deformed children. Those who would engage in sexual intercourse beyond the reproductive regulations based on age are subject to the law restricting the abortion of any such offspring to the period before it has developed sensation and life.

The middle of the hierarchy also consists of those who have developed sensation and life, who are afforded protection from abortion. The characteristic of having developed sensation and life presumably occurs before birth, since Aristotle is discussing this characteristic in terms of a legal limit to abortion. However, there may arise a scenario in which the child who has developed sensation and life is protected from an abortion only to be born deformed, at which point the child would be at the bottom of the hierarchy. The bottom of the hierarchy consists of deformed children, who are prohibited from being reared by the law and are presumably subject to exposure/abandonment and death.

Reproductive public policy was formally integrated into both Roman law and at least one version of the Roman founding mythology.

Dionysius of Halicarnassus wrote in Roman Antiquity:

By these institutions Romulus sufficiently regulated and suitably disposed the city both for peace and for war: and he made it large and populous by the following means. In the first place, he obliged the inhabitants to bring up all their male children and the first-born of the females, and forbade them to destroy any children under three years of age unless they were maimed or monstrous from their very birth. These he did not forbid their parents to expose, provided they first showed them to their five nearest neighbours and these also approved. Against those who disobeyed this law he fixed various penalties, including the confiscation of half their property.⁸

Here, Romulus (the mythical founder of Rome)⁹ dictates reproductive public policy for the benefit of Rome (the city) as a whole. All male children and first-born females were protected, provided that they were not maimed or monstrous from their very birth. Notice how Aristotle made no reference to the gender of the children from a public policy standpoint, whereas Romulus seems to prefer males.

While Roman citizens were required to bring up all their male children and the first-born of the females, Romulus also forbade them to destroy any children under three years of age unless they were maimed or monstrous from their very birth. That edict would mean that if a child was born who was not a male, was not a first-born female, and was not maimed or monstrous, Romulus’s policy prevented that child from being destroyed until three years of age. Imagine yourself as a Roman child, being so excited for your third birthday. Your dad might not be using that knife to slice the birthday cake!

Presumably, the implementation of Romulus’s policy would mean that a law-abiding Roman would be permitted to destroy any females, except the oldest, after they turn three years of age. This policy essentially gave Romans a limited degree of decision­-making in family planning, a subject that was not discussed in Aristotle’s policy.

Another notable feature of Romulus’s policy is the procedure by which children were to be determined to be maimed or monstrous prior to the parents’ abandoning the child to die of exposure to the elements. The parents would need to take the child to their five nearest neighbors, who would have to agree that the child was maimed or monstrous before the parents would be permitted to abandon the child. Such verification procedure was missing from Aristotle’s policy.

Notwithstanding the reproductive public policy of mythical Romulus, as described by Dionysius of Halicarnarssus, Roman law did indeed contain reproductive public policy. In the Twelve Tables Law, Table IV pertained to Paternal Power, which dictated that A notably deformed child shall be killed immediately.¹⁰

While Romulus’s policy forbade them to destroy any children under three years of age unless they were maimed or monstrous from their very birth, which sounds optional, Table IV required the destruction of deformed children. Romulus’s policy simply stipulated the protection from destruction for certain categories of children, while permitting it for others. Table IV created an affirmative duty toward destruction for a notably deformed child. The distinction would likely be meaningless in application, however, since parents would have heavy economic incentives to expose or destroy deformed as well as otherwise unwanted children anyway.

In contrast to modern discussions that advocate as being pro­choice, many of the Greek and Roman policies discussed above didn’t take the mother’s wishes into consideration. Women in those times did not have the same rights as men in Greco-Roman society, with Table V of the Twelve Tables Law going as far as to require that women have male guardians, stating Women, even though they are of full age, because of their levity of mind shall be under guardianship.¹¹

In addition to the references above, there are also notable archaeological examples of the Roman practice of exposure, most notably the sites at Ashkelon, Israel, and Hambleden, England. The Ashkelon site contains the bones of nearly 100 infants, found in a late-Roman/early-Byzantine sewer beneath a bathhouse. The skeletons found at the site did not have any deformities, and the skeletal and dental evidence indicates that the infants died shortly after birth. The lack of skeletons from different age groups and the high concentration of infants who died shortly after birth both seem to indicate that the infants were deposited in this sewer as a part of local custom or public policy. DNA analysis of the remains indicated a larger proportion of male skeletons to female skeletons, which seems to go against the Roman cultural preference for male children. Some experts theorize that the Ashkelon site was actually part of a brothel, and that some female infants were kept to be raised as prostitutes to work in the brothel. The abandonment of infants at the site may have been a last resort for prostitutes who became pregnant as a result of their work, but other experts reject the brothel theory entirely.¹² Although there is much disagreement among experts regarding the details, the discovery of the remains is consistent with the theory that the abandonment of unwanted infants was an accepted custom.

The other major site is in Hambleden, England. This site, which was a Roman villa, contained 103 burials, 97 of them infants, three children and three adults.¹³ Like those at Ashkelon, the infants were in the same age group, and were likely born just shortly before their death. Simon Mays, a human skeletal biologist who studied the remains found at Hambleden, stated the following:

I think it was a routine way parents could make choices about family size... You don’t need a special explanation; it was part of a widespread phenomenon.¹⁴

Jill Eyers, the archaeologist who brought Mays into the project, believes that the site may have been a brothel.

Why were they doing this at this site? It doesn’t make sense. This site was exceptionally wealthy—they could have kept babies—so it wasn’t because of the poverty. There were no natural illnesses that would affect just the little ones, the newborns. There is no logical reason we can think of, except maybe it was a brothel.¹⁵

Both scenarios proposed by the researchers seem to indicate that the practice of exposure or abandonment was an acceptable custom during the Roman era. Their conclusions are consistent with the literature previously discussed.

Jewish Laws regarding Abortion

The Jewish laws regarding abortion are more ambiguous than the Roman statutes previously cited. Rather than explicitly address the issue of abortion, Jewish authorities must rely on other concepts found in the Torah and Talmud.

(Note: Before proceeding, the source cited below represents the views of a specific subset of Jewish people. There is diversity among the Jewish faithful, and this citation should not be considered applicable to the Jewish faith universally. I chose this source for citation because it demonstrated a type of reasoning that displays a reliance on religious texts for drawing policy conclusions.)

The paper Abortion: The Jewish View by Rabbi David M. Feldman was adopted as the Majority Opinion of the Rabbinical Assembly in 1983 and describes the sources and reasoning upon which abortion decisions must be made.¹⁶

In his writing, he cites Exodus 21:12, which states that Whoever strikes a man so that he dies shall be put to death. Likewise, he cites Leviticus 24:17, which states, Whoever takes a human life shall surely be put to death. Feldman states that Rabbinic law has determined that human life begins with birth.¹⁷ Thus, since human life begins at birth, the protections against homicide for newborn infants begins at birth, but the previously cited statues (Exodus 21:12 and Leviticus 24:17) will not apply before birth.

Feldman also cites Exodus 21:22 to distinguish between the punishment for harming a person who has been born as opposed to harming a prenatal being.

If men strive, and wound a pregnant woman so that her fruit be expelled, but no harm befell [her], then shall he be fined as her husband shall assess, and the matter placed before the judges. But if harm befell [her], then shall you give life for life.

Here, Feldman observes that the law only allows for monetary compensation for causing a woman to miscarry, and not the death penalty, were the fetus considered a person. Feldman continues: Though the abortion spoken of here is accidental, the verse is still a source for the teaching that feticide is not a capital crime (since even accidental homicide cannot be expiated by monetary fine).¹⁸ Feldman deduces that since the punishment for inducing miscarriage is different from that of homicide, there must be a difference in the moral value of an adult human being versus that of an unborn child.

Unlike Greco-Roman tradition, which focused on the health of the state and society and made determinations based on the condition of the fetus or child, prominent Jewish authorities focus on the well-being of the mother and the physical condition of the mother to determine the outcome. As stated by Feldman:

If a possibility or probability exists