In last week’s Newsletter, Untangling the Issue of Abortion, I stated that “abortion comes under the rubric of Moral Law and medical ethics translated into Positive Law constitutions and statutes.”

The People of the United States must decide what Moral Law tells us about abortion and where the lines are to be drawn regarding legal duties and responsibilities around a developing human being still in the womb and the rights of the mother and father associated with that life.

The Supreme Court of the United States decided to take the issue away from the People when it decided that abortion was a Constitutionally protected “right” within the first three months of pregnancy, a shared “right” with the State in the second three months of pregnancy, and an extinguished “right” in the last three months of pregnancy. Roe v. Wade (1973).

Subsequent decisions have upheld the ruling and enlarged the “right” to abortion through birth. The procedures used, the businesses created, and the funding of abortion that includes all taxpayers has forced the public into a difficult and highly charged conversation. It is not a settled issue.

WHAT HAVE PHILOSOPHERS AND THEOLOGIANS SAID OF ABORTION?

In his History of Animals, Aristotle (384 BC – 322 BC) discusses human reproduction in detail. He talks of natural abortions occurring within the first week as “effluxions” that are unknown to the mother.   He thought males developed more quickly than females and that there could be abortions up to 40 days for males and 90 days for females.

Thomas Aquinas, (1225-1274) following Aristotle’s lead, thought sperm acted on menstrual blood to produce first a vegetative soul, then an animal soul, and finally a rational soul. At this point of “animation,” a fetus could not be discarded.

For the Roman Catholic Church, conception and ensoulment occur as a single event in human creation. Christ was ensouled immediately. It is the position of the Church that purposeful abortion after conception is the killing of a human being.

WHAT IS THE RELATIONSHIP BETWEEN ABORTION AND OUR RULE OF LAW?

Abortion, if not a naturally occurring event, is within the strictures of Moral Law. Moral Law within each person tells us what is right and what is wrong conduct – often called conscience.   The conscience is developed in each person as part of his or her nature and nurtured as values within the family. Moral law is primarily taught privately, with or without religious affiliation, but it is also codified in Positive Law as statutes, ordinances, and rules. It is also reflected in state Constitutions and in our federal Constitution, all of which are part of Positive Law.

Early in American history Moral Law was also taught at school so that voluntary compliance with shared moral values was reinforced in the hopes that over time these values would be ingrained in an individual as a moral or ethical core. What our society defines as “right” and “wrong” is the essence of the 10 Commandments of Judaism and the 2 Commandments of Christianity regarding rightful or principled conduct.

Unwritten Law governs how the issue of abortion is discussed in our society. One is not allowed to unnecessarily infringe on the sensibilities of others with painful and ugly language or behavior.

Natural Law is promulgated by God but known to man through reason. These rules have no connection to Positive (man-made) Law or to Canon (religious) Law. They are intrinsic and unalienable to each person. Among these rights are the right to life, liberty and the pursuit of happiness.

WHAT ARE SOME OF THE PARAMETERS TO BE CONSIDERED IN FASHIONING APPROPRIATE POSITIVE LAW REGARDING ABORTION?

1. If abortion is a moral issue it is first a private or family matter. Unless violently assaulted, if sexual intercourse produces a pregnancy, intercourse is a choice. That choice for both the mother and father is part of the value system of the family and the moral core of each participant. If minors are involved parents must be involved, also, or a proper private substitute for the parents found. Government actors are not proper parental substitutes in their official capacities.
2. The important question to ask is – When is there a human being? Not a person, but a human being. Within our Rule of Law, a fetus is not a person, and is not recognized as having Constitutional rights as a person. However, a human being is different, so determining when a fetus becomes a human being is critical in fashioning Positive Law.
3. Conflicting rights should be respected. Public funds, whether directly funding or funding through charitable organizations, allocated for conduct in conflict with Moral Law for many citizens, violates the promise of Equal Protection of the Law. 

Moral Law in America is not the same as religious law. This is not a conflict between Church and State. Our society developed the idea, in loose agreement with the Scottish philosopher Francis Hutcheson, that each human being has an instinctive moral sense. This moral sense includes the practical as well as the theoretical and is translated as self-interest transferred to the common good.

This moral sense regarding abortion informs us that abortion should not promote profit. It should not include wholesale killing, selling aborted tissue, donating aborted tissue, composting aborted tissue, or any other conduct that disrespects a human being in the womb. Common sense informs us about prevention and changes to accommodate new scientific knowledge.

In untangling this issue, each American citizen can come to a personal conclusion about the parameters of conflicting rights and expect that the conclusion of the majority will be reflected in state statutes that also respect religious and moral views.

This is the appropriate jurisdiction for fashioning Positive Law regarding abortion, though the real jurisdiction for conduct involving an anticipated human being lies within the moral core and conscience of each adult American. In a nutshell – One Body – Many Lives.