Religion & Law

I have never been a fan of Roe v. Wade, as my first fumbling effort at legal scholarship showed (108 Harv. L. Rev. 495).  At the same time, I have never felt totally at home in the pro-life movement.  One reason is the totally unnuanced rhetoric often employed by some pro-life advocates, such as the insistence that Obama voters need to justify their vote in heaven to the victims of abortion.  (If so, then Bush voters should do the same to the children killed by American bombs during our preemptive war in Iraq.)  Another example is the tendency to call the legalized abortion regime a "holocaust," which I heard again during last week's anniversary of Roe.  I realize that the term predates World War II (originally referring to a burnt sacrifice), but it only became seared in the public consciousness as pertaining to the slaughter of human life in the wake of the Jewish genocide.  The abortion regime in this country is horrible, but it is not the Holocaust.  Portraying it as such contributes to our tendency to ignore the hard choices and more complicated moral (and legal) considerations that lurk behind our easy abortion labels.

First, the mothers who choose abortion often feel as though they have no other choice, and admittedly, the choices they face often are not easy ones.  I do not think that choosing to kill their unborn children is the answer, but choosing that answer does not make them the moral equivalents of the Nazis, and neither does our government's willingness to permit them that choice. 

Second, and this is where I may be treading into more controversial waters, killing a twelve year old is worse than killing a six week old fetus.  They are both wrong, make no mistake.  But if there was a clinic in our town where mothers were dropping off their twelve year olds to be killed, I highly doubt that any of us would be content to remain in the comfort of our law school offices, writing an article now and then about the need to overturn Roe.  We would be blocking the clinic entrances, physically rescuing the children, overthrowing the government that allowed this to happen.  There are a few who take this same attitude toward legalized abortion, but not many, and we view them as extremists.  In my view, we do care -- and should care -- more about killing the twelve year old because the twelve year old is self-aware, capable of suffering, cognizant of his existence and of loss.  I sound like Peter Singer, I realize, but I reject his conclusion that attributes like these (along with the loss felt by those who love the person killed) are the only reasons to protect human life.  I think we should protect human life, period.  But I think the development of a particular human life brings even more reasons to protect it.  And I think almost all of us act as if this last sentence is true, even if we fear the consequences of admitting it.  Abortion clinics are a moral blot on our society; recognizing that fact should not prevent us from acknowledging that gas chambers are worse.