Abortion rights of women versus the right to life of the foetus have been the focus of numerous cases before American and Canadian courts for decades. Frankly, in neither jurisdiction has the matter been satisfactorily settled. I think the reason is that no court has properly delineated those rights and how they must be resolved. I am going to try to tease out a better foundation for the law.

First, I have always believed that the right to privacy is an odd basis for the US Supreme court to strike down legal prohibitions against abortion as it did in the landmark case of Roe v. Wade. I always thought that was a weak position and could later be challenged by subsequent courts as in fact now recently happened in the Dobbs case.

In my view no one should be surprised. Privacy was always a weak foundation for such an important right and everyone should have been wary of it. As a result decades of women and their allies did not bother trying to persuade states to open up abortion rights because they felt they did not need the states on their side because they had the Supreme Court on their side. Now we know what a weak position that was. Frankly, the same thing has happened in Canada. There is no proper foundation to the right to an abortion. There is no constitutional protection for that right in Canada, just as there no longer is the United States.

Charles Fried, is a lawyer who formerly represented the United States under President Ronald Reagan. He has impeccable conservative credentials but now argues that Roe v. Wade is based not just on privacy, because an abortion is a medical procedure in a hospital involving many people. He now thinks the right to an abortion is based or grew out of, a decision of Justice John Marshall Harlan II in dissent in the 1961 of Poe v. Ullman, a case in which the court left standing a Connecticut law forbidding the use of contraceptives but Justice Harlan’s dissent provided what Fried then considered, and still considers to be the more solid “foundation of the law of privacy and personal dignity”. It is a combination of the two rights. It is a fundamental aspect of the dignity of women that they control their own reproductive processes. To him (and to me) that seems like a stronger foundation because it accords more with what people actually believe. They believe, that whether or not a woman may have an abortion should be determined by her alone. But how do I get to this position?

 When I was a young lad in university, I wrote an essay on the subject of abortion rights. I thought my argument was pretty sound at the time. I still think the basic idea was sound; I just think I could have expressed it with greater elegance. I will try my best to that now.

I had not at the time read a very valuable chapter of a book by Bertrand Russell. It was not written on the subject of abortion at all, but I think that is views can shed a powerful light on the dimly subject of abortion rights. I referred to his position in an earlier post and referred to it as “the Russell Principle” and the “Uncertainty principle.”

Russell talked about uncertainty in that essay and made some very important points that I think bear on this issue. My reasoning (which I still believe is solid) was based on what I believed was the fundamental principle of criminal law, namely, that we must only convict if it can be proved beyond a reasonable doubt (not absolutely) that the accused is guilty. Why is that the case. I would say the rationale for this is the more fundamental idea that we should not inflict a certain evil on people for the purpose of a good that is doubtful. The same applies to the act of prosecution itself. An action such a destroying a foetus should only be prosecuted if it can be established beyond a reasonable doubt, that the harm inflicted on the mother or physician is less than the harm avoided. Personally, I cannot be certain enough to justify prosecuting the mother or the physician.

The state has no right to impose its view on her and prevent her from getting this procedure. The state should not be able to impose on her the obligation to carry the child, at least up to viability. The state has the right to prohibit murder because it is certain that his is a harm which justifies the interference with personal freedom. There is no such certainty in the case of abortion as I argued in an earlier post.

I think it is imperative for those of us who enter the fray of the abortion debates to recognize and never forget that there is more one than side to that debate. We must recognize and even empathize with those who take a contrary view. In the fight over women’s reproductive rights versus the right of the foetus to life it is not a case where all sweetness and light is on one side. Of course, those who enter this debate usually strongly disagree. Their side is pure good; the other side is pure evil.

The late writer David Foster Wallace hit the issues squarely when he said, much more eloquently than I did in 1969 in my university essay. Wallace said in effect that the only coherent position was to hold both positions—i.e. pro life and pro choice. That has been my position for all these years, but naturally, I did not express it as well as Wallace did when he said,

“In this reviewer’s opinion, the only really coherent position on the abortion issue is one that is both Pro-Life and Pro-Choice…

Argument: As of 4 March 1999, the question of defining life in utero is hopelessly vexed.  That is, given our best present medical and philosophical understandings of what makes something not just a living organism but a person, there is no way to establish at just what point during gestation a fertilized ovum becomes a human being.  This conundrum, together with the basically inarguable soundness of the principle ‘when in irresolvable doubt about whether something is a human being or not, it is better not to kill it’, appears to me to require any reasonable American to be pro-life. At the same time, however, the principle ‘when in irresolvable doubt about something I have neither the legal nor the moral right to tell another person what to do about it…is an unassailable part of the democratic pact we Americans make with one another…and this principle appears to me to require any reasonable American to be pro-choice.

This reviewer is thus, as a private citizen and an autonomous agent, both Pro-Life and Pro-Choice.  It is not an easy or comfortable position to maintain.  Every time someone I know decides to terminate a pregnancy, I am required to believe simultaneously that she is doing the wrong thing and that she has every right to do it.  Plus, of course, I have both to believe that a Pro-Life + Pro-Choice stance is the only really coherent one and to restrain myself from trying to force that position on other people whose ideological or religious convictions seems (to me) to override reason and yield a (in my opinion) wacko dogmatic position.  This restraint has to be maintained even when somebody’s (to me) wacko dogmatic positions appears (to me) to reject the very Democratic tolerance that is keeping me from trying to force my position on him/her; it requires me not to press or argue or retaliate even when somebody calls me Satan’s Minion or Just Another Shithead Male, which forbearance represents the really outer and tooth-grinding limits of my own personal Democratic Spirit. “

Of course, this is precisely not how we currently think about things. As Katie Roiphe said, in an interview on Amanpour & Company,

“We tend to believe that people who disagree with us are lunatics, or they’e  evil, or they are kind of the scum of the earth…The idea that you might take the best argument of the other side and to just think about it. I am adamantly pro-choice myself but I think it is kind of important not to engage in the mob tribalism that has brought us to the situation where we have the Supreme Court that we have, where we had Trump elected and I think that that habit on the right and on the left is very toxic and very dangerous and the David Foster Wallace quote kind of opened the door for me when I read it because I did think wait, what about if we did stop for a second and listen to other people and listen to the arguments of the other side instead of immediately demonizing anybody who thinks differently from us.”

Of course, in this era of deep polarization, both sides are likely to unswayed by a position like this that sees some sense in the other side. Both sides prefer to think of the other side as inherently of the devil. No one wants to actually consider the position of the other, which they believe is obviously wrong.

This brings me back to the position that Charles Fried espoused, namely the centrality of dignity that ought to be present in this discussion. First, let both sides of the dispute see that the other side is entitled to their position. Their right to dignity demands that they have the right to speak their mind freely and respectfully. And they deserve to be heard.

Secondly, let the pregnant woman have her dignity. Let her make this enormously difficult decision. She is in the best position to do that, not us braying from the ramparts of political debate. I say, let the pregnant woman decide. I hope she chooses life, but if she chooses otherwise I intend to respect that decision.