In The Washington Post fact-checker section, Michelle Ye Hee Lee reported on her investigation of the question, “Is the United States one of seven countries that ‘allow elective abortions after 20 weeks of pregnancy?’” In her words, “This statistic seemed dubious at first, because it seemed extreme for just seven countries out of 198 to allow elective abortions after 20 weeks of pregnancy. But upon further digging, the data back up the claim.” The law of the United States on abortion is more extreme than almost every other nation on earth.
Yet, in their fifty-nine-page Texas Law Review article, “Abortion: A Woman’s Private Choice,” Erwin Chemerinsky and Michele Goodwin argue that US abortion law is not radical enough. They hold that we need to act now not only to preserve the law as it stands but to expand abortion rights. How do they justify this view?
According to Chemerinsky and Goodwin, there is no consensus about when human life begins, nor does science clarify the matter.
Why leave the choice as to abortion to the woman rather than to the state? First, there was then, and is now, no consensus as to when human life begins. As Professor Tribe explains: “the reality is that the ‘general agreement’ posited . . . simply does not exist.” In other words, “Some regard the fetus as merely another part of the woman’s body until quite late in pregnancy or even until birth; others believe the fetus must be regarded as a helpless human child from the time of its conception.” Moreover, according to Professor Tribe, “These differences of view are endemic to the historical situation in which the abortion controversy arose.” The choice of conception as the point at which human life begins, which underlies state laws prohibiting abortion, thus was based not on consensus or science, but religious views.
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In their article, Chemerinsky and Goodwin show no awareness of the relevant scientific research about the beginning of an individual human being’s life. Patrick Lee and Melissa Moschella recently summarized standard scientific evidence here at Public Discourse. Sarah Knapton, the Science Editor of the Telegraph, notes, “Human embryos have been kept alive in a petri dish for an unprecedented 13 days, allowing scientists to finally see what happens in the mysterious days after implantation in the womb.” Only if human embryos are already alive can human embryos be kept alive for longer than ever before. It is not a sign of intellectual rigor for Chemerinsky and Goodwin to simply ignore scientific evidence.
Nor is it a sign of intellectual rigor to distort your opponents’ positions. Chemerinsky and Goodwin write, “Legislatures could cloak religious objections to abortion in secular arguments (and often they do this) by claiming that potential human life exists at the point of conception.” No pro-life advocate claims that abortion is wrong because it kills potential human life. Rather, critics of abortion hold that abortion kills an actual human being with potential.
Chemerinsky and Goodwin’s misrepresentation continues: “According to this line of argument, absent an abortion, all or the overwhelming majority of pregnancies develop fetuses to term and produce babies. This is woefully misguided and inaccurate.” After extensive reading of the literature on abortion, I know of no one who holds this position. Chemerinsky and Goodwin go on to critique this straw man by noting:
roughly 10%–20% of known pregnancies will spontaneously terminate, resulting in miscarriages. Moreover, two-thirds “of all human embryos fail to develop successfully,” and terminate before women even know they are pregnant. Even in the most controlled, hormone-rich circumstances, such as in vitro fertilization—over 65% of the embryos end in demise. According to the most recent Centers For Disease Control and Prevention (CDC) data on this issue, only 23.5% of implanted embryos result in normal live births (for women over thirty-five years old, the chances of pregnancy resulting in live birth are dramatically lower). In other words, there is not a probable chance that but for an abortion there will be a baby resulting from conception. Instead, there may be a reasonable chance—but clearly no more than that—that there will be a baby but for an abortion.
This is a red-herring argument. Embryos that spontaneously abort before women even know they are pregnant are completely irrelevant for the abortion debate, since abortion cannot be chosen until pregnancy is known. Likewise, the fact that only 23.5 percent of implanted IVF embryos result in normal live births is irrelevant for the abortion debate. Women who go to the trouble and expense of implanting IVF embryos are women who want to be pregnant. Might some of these women change their minds mid-pregnancy? Perhaps, but such abortions are possible only if the embryos do not spontaneously miscarry. If Chemerinsky and Goodwin are correct that 10 to 20 percent of known pregnancies spontaneously terminate, that leaves 80 to 90 percent of known pregnancies continuing to live birth. In other words, there is an excellent chance that a known pregnancy will result in a newborn unless an abortion takes place.
Chemerinsky and Goodwin’s argument from spontaneous miscarriage is a red herring for another reason. The probability of survival of an individual is irrelevant to the question whether that individual has the right to live. In some times and places, a majority of newborns died. In some times and places, a majority of AIDS victims did not survive. The probability of an individual’s survival is irrelevant to the question whether that individual has basic human rights.
After their examination of a straw-man version of one pro-life argument, Chemerinsky and Goodwin conclude, “When examined closely, as we have here, Professor Tribe’s argument that there is no secular basis for a prohibition on abortion and contraception makes profound sense.” It is not simply that Chemerinsky and Goodwin misunderstand the pro-life view as articulated in the scholarly literature. Entirely missing from their analysis is any engagement with, or any indication that they are even aware of, the many secular arguments advanced against abortion by scholars such as Don Marquis, Elizabeth Anscombe, Robert P. George, Patrick Lee, Francis Beckwith, and others. In ignoring such authors, Chemerinsky and Goodwin provide an ostrich defense of abortion. It is easy to think Roe’s conclusion is “unquestionably correct,” when one simply ignores the questions raised by critics.
Chemerinsky and Goodwin show little evidence of familiarity with the relevant literature even in terms of defenses of abortion. They write, “Although everyone can agree that an individual capable of surviving outside the womb should be protected, consensus never will be reached as to the status of the fetus.” Many defenders of abortion disagree. Michael Tooley, Peter Singer, Alberto Giubilini, Francesca Minerva and others have defended both abortion and infanticide on the grounds that both the newborn and the prenatal human being are not “persons” in the ethically relevant sense.
An argument repeated in “Abortion: A Woman’s Private Choice” is that criminalization of abortion is especially burdensome to poor women and that a disproportionate number of the poor are minorities. If abortion is made illegal, rich white women will still be able to obtain abortions by going abroad.
Indeed, the rich have an easier time evading all laws than do the poor. If O.J. Simpson were an economically disadvantaged, unknown person, he would probably have been convicted of murder. Rich people can fly to other countries for the sake of evading U.S. law against child prostitution, but it hardly follows from this fact that we should decriminalize child prostitution. Rich white women are less likely to get traffic tickets than poor black women, but we should not therefore abolish traffic laws. Legal justice should be blind to race and to class, but this is a problem for the legal system in general and, therefore, irrelevant for laws about abortion specifically.
In sum, Chemerinsky and Goodwin’s defense of legal abortion does not take into account, let alone engage and refute, scholarly arguments from a pro-life perspective. They highlight the risks that women will encounter if abortion is criminalized and ignore the harms that women encounter because abortion is decriminalized. They repeat the claim that childbirth is more dangerous than abortion and ignore evidence to the contrary. They even seem unaware of philosophical defenses of abortion in tension with their view. Chemerinsky and Goodwin’s article on abortion attacks straw men, employs red herrings, and ignores relevant evidence.
In other words, “Abortion: A Woman’s Private Choice” is very much in the spirit of Roe.