Posted on March 6, 2019 at 7:06 AM
By Steve Phillips
There has been considerable reaction to the recent passage
of a New York State law a regarding abortion. It has been celebrated by those
who support a woman’s choice to have an abortion at any time and for any reason
and strongly opposed by those who believe that a human fetus has a life that
should be greatly valued because he or she has been created in the image of
God. The new law basically changes two things in the previous New York State
abortion law which led the way in the legalization of abortion prior to Roe v.
Wade. One is that it expanded those who can legally perform and abortion in the
state to include nurse practitioners, physician assistants, and midwives in
addition to physicians. I will not be discussing that here. The other changes
have to do with the circumstances under which an abortion may legally be done
after 24 weeks gestation.
The 1970 law stated that an abortion could be done legally
for any reason prior to 24 weeks, but only to protect the life of the mother
after 24 weeks. Why 24 weeks? 24 weeks gestation was considered to be the limit
of viability for a fetus in 1970. Today it would probably be more like 22
weeks, but they didn’t change that. What has changed in the new law is that
abortion is considered legal after 24 weeks if there is an absence of fetal
viability after 24 weeks or to protect the life or health of the mother. This significantly
expands the cases in which abortion after 24 weeks can be considered legal. Roe
v. Wade already expanded it in the second way. In that decision the Supreme
Court ruled that the state could have an interest in the life of the fetus
later in the pregnancy that it did not have early in the pregnancy but limited
that interest by saying that a state could not say that an abortion was legal
if it was done to protect the life or health of the mother. A companion
decision made at the same time stated that the health of the mother should be
interpreted very broadly to include the emotional well-being of the mother.
That left us with the current situation in which the United States has the
broadest definition of a legal abortion in the world.
The thing that I find most interesting about the new law is
that it keeps the distinction between abortions done before and after 24 weeks
and that it adds the condition that an abortion after 24 weeks can be legal in
the absence of fetal viability. If the law is going to say that an abortion can
be legal at any time during the pregnancy based on the mother suffering
emotional distress, why would those making the law be concerned about fetal
viability? I think that what is being said by those who have written and passed
this law is that until a fetus is capable of living independently of his or her
mother the life of that fetus has absolutely no value other than the value
conferred by his or her mother. They want that to be contained in the law even
if it actually makes no practical difference regarding the legality of
abortion. Why is that so important?
I think it is important because the fundamental underlying
issue regarding the permissibility of abortion has to do with how we determine
who is a person who we are obligated to treat as we would want to be treated
ourselves. It is essential for those who support the moral permissibility of
abortion and therefore its legality to say that a fetus is not such a person.
The best way to do that is to say that an individual is only a person with full
moral status when that individual has certain capabilities that are like ours.
One of those capabilities which can be fairly clearly defined is viability. If
people can be convinced that they should look at capabilities such as viability
to determine who we are obligated to treat like ourselves it will distract them
from the alternative way of determining that. The alternative is to say that
every human being, or every member of the human family, no matter what their
level of development or capabilities is a person that we should treat as we
would want to be treated ourselves. That means that every human being who is
weak, helpless, and marginalized has equal value with the strongest and most
privileged of human beings. That is the position of those of us who believe
that every human being is important because we have been made in the image of
God. That includes everyone who is dependent including those who are dependent
to the point of being unable to survive outside their mother’s womb.