Abortion: Bringing back the sanity

Perhaps no issue so fully defines the culture war as the debate over abortion. In the next several posts I'll be discussing this issue and I'm going to try to bring both sides of the debate back to a level of sanity which both pro-life and pro-choice extremists have abandoned.
In this post, I want to simply lay a historical groundwork for the debate, discuss what roe v. wade did and did not do, so that we are proceding with accurate information and not the distortions of history on both sides of the debate.

First, the practice of abortion is ancient. The Egyptians in dynastic days practiced it as did the Persians. Persian Law exacted severe punishments for abortion. However, in spite of the sanction in the Hippocratic Oath, Greek and Roman cultures were tolerant of the practice. When punished, it was largely based on the violation of paternal rights. In other words, the father claiming that he had been deprived of his offspring. It was not considered murder by any means.

The Hebraic Law is silent on the practice of voluntary abortion. The only reference to it in scripture is found in Exodus 21:22. The verse reads in the King James:

(Exo 21:22) If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine.

The Contemporary English Version clarifies this scripture:

Suppose a pregnant woman suffers a miscarriage as the result of an injury caused by someone who is fighting. If she isn't badly hurt, the one who injured her must pay whatever fine her husband demands and the judges approve.

Neither of these treats the "abortion" as murder. Nothing is said at all about voluntary abortion that I can find.

Likewise, the early church did not consider life to begin at conception as most modern pro-life advocates do. They believed that the soul entered the body at some point about the 16th to 18th week when the mother begins to feel movement. This was called "The Quickening." and was used from ancient times through the 19th century indetermining proscription of abortion and/or it's penalties.

Under common law, abortions performed before "the quickening" were not considered actionable. In fact, in America, the first law banning abortion was enacted in 1821 in Connecticut, but it wasn't until 1860 that state criminalized abortions before quickening. The law in New York in 1828 made abortion before quickening a misdemenor, but after quickening, it became a felony. Such distinctions remained in American law up until the 1950's when the distinction by time was phased out. By the late 1960's, though, many states were liberalizing their abortion laws so that by the time of Roe v. Wade abortion was legal under certain restrictions in about 1/3 of the states and women who wanted an abortion could usually obtain one legally simply by traveling to another state.

In January 1973 Roe V. Wade was decided. In many ways it took a step back to the laws that postulated a "quickening" occurring some days or weeks into the pregnancy. Contrary to popular belief, Roe did not legalize abortion in all cases throughout the pregnancy. Here is the text of the critical court order:

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in waysthat are reasonably related to maternal health. Pp. 163, 164.

(c) For the stage subsequent to viability the State, in promoting its interest in thepotentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

In other words, during the first trimester, the traditional period before the "quickening" the woman and her physician have virtually unfettered ability to choose to abort the fetus. After the first trimester but before viability, the state may regulate abortion based on the health of the mother. Once the fetus could live outside the womb, the state could regulate or ban abortion completely.

So, even conservative theologians over the centuries have debated when life begins and that debate has been reflected in the abortion laws up until the first half of the 20th century when abortion laws began to predicate that a fertilized egg was a living being with a soul. This is a belief that was not shared by the ancients nor by the early church.

Now, they may have been wrong. One can build a case that life begins at conception. One can postulate that the soul enters when the sperm connects with egg. Although, it is hard to really maintain that when one considers how many fertilized eggs never reach maturity. It would seem that God would not set up a reproductive system which destroys so many souls. The concept of "the quickening" I personally find compelling. The difficulty I find is that I'm not sure when that happens. That is one reason why I personally on a moral basis oppose abortion at any stage of development. However, I can see a legitimate argument that such a quickening is unlikely to occur in the first trimester.

We will be critiquing the Pro-Life assumptions in the next posting, but not to worry, the pro-choice people get theirs in the following. After that, I'll present a "reality check" on what it likely to occur with abortion laws in the future. Finally, I'll present my "solution" to the problem. So, please don't shoot me until you read the whole series.