ONE CONTENTIOUS ISSUE

There is probably no more contentious issue a teacher can bring up in class than the issue of abortion rights.  This writer can personally attest to the emotions this issue can surface in the classroom.  Should it be avoided due to this reaction on the part of students or is there a way to handle it?  And by handling it, can a teacher have students discuss the elements of it including how the issue relates to federalist values with the order Philip Selznick identifies as a “pillar of reason?”[1]

          Of course, this federalist concern is what makes these questions relevant to this blog.  So, any treatment of it should first point out how the issue is a federalist one.  There is more than one concern along these lines, but here, in this posting, one will be emphasized.  That is, this issue either reflects harm that can be done to a person’s sense of dignity and integrity or, more central, to his/her right to life.  Either way, this issue involves very central federalist values.  And a lot of this issue revolves around definitions, the definition of life, of personhood, and of rights. 

This posting targets the bi-categorization of what is at stake.  Does an abortion deny life generally or does it deny life to a person?  The “right-to-life” proponents – that is, those against abortion rights – claim that an abortion is tantamount to murder.  It extinguishes life from a human being.  The right-to-choose people – that is, those that argue a woman should have the right to determine what happens to her body – claim that an embryo or a fetus, to various gradations, is not a person. 

This last claim needs a bit more clarity.  That is, according to the claims of the right-to-choose camp, a human entity must be mature enough as a fetus or must be born to be a legal person – “person” is the term the Constitution uses to designate a human entity worthy of recognition in terms of rights.  This all sounds very legalistic and devoid of the humanity involved.  But when one speaks of rights, especially when the rights of parties are in conflict, that’s what tends to happen.

This posting will not take a stand on the issue.  The purpose of the blog is avoid doing so when the question cannot be comfortably settled by classifying it clearly as being a federalist related issue or problem.  As the above definitional ideas demonstrate, one can be pro-federalist on either side of the issue and, in effect, the parties do not agree as to the federalist stakes involved. 

Therefore, using this issue in the classroom should make this factor clear and well-known.  What this posting seeks to provide are facts that affect how one views this issue and, in turn, how it affects the quality of federalist rule.

The first fact this writer feels is relevant is a portion of the First Amendment to the US Constitution.  It reads, “Congress shall make no law respecting an establishment of religion …”  It immediately goes on to state “… or prohibiting the free exercise thereof …”  But it is the first phrase that seems to be relevant.  How can a government “establish” a religion?  Can it do so by legislating a religion’s moral precepts? 

Some think yes, while some disagree.  Those who disagree cite the role religions play in expressing culturally accepted moral precepts that people believe law should advance.  In terms of the latter role, for example, surely religions state murder is immoral.  Should that not be considered by lawmakers when considering banning murder? 

In Reynolds v. United States, 1879, the Supreme Court upheld a federal law banning bigamy (another behavior generally believed to be immoral), but the decision was not clear as to whether the decision was based on a religious rationale.  That Court more than hinted that such a law had enough secular consideration behind it to legitimately ban bigamy and therefore its rationale is not limited to a purely religious belief.[2] 

Subsequent cases listed by the Bill of Rights Institute show a clear recurring theme; law cannot be dictated by religious precepts or religious interests – they cannot also hinder people from believing or abiding by religious precepts assuming those beliefs do not counter constitutionally legitimate laws.[3]  Either way, laws seem to need secular reasoned rationales to pass constitutional muster, especially when they prohibit citizens from pursuing their life’s choices.

So, how does this relate to the abortion issue?  The question for a class, therefore, would be:  is a woman seeking an abortion aiming to commit an act that is or should be illegal?  And, is the terms of the illegality sufficiently secular, as opposed to sectarian, or, by being so central to traditional religious beliefs (seen as a form of “murder”), does this behavior constitute an exception to the general determination of the courts?  Is it the belief that upon conception, the embryo is given a soul by God and, therefore, is a full-fledged person?

Another line of inquiry that is relevant has to do with the right-to-choose argument.  Those who argue this position seem to be relying on certain aspects of the gestation process an embryo or fetus undergoes.  For if the ultimate concern is whether one is dealing with the rights of a person – minus any religious claims – then it seems reasonable that the test is how closely that entity – an embryo or a fetus – takes on the attributes of a person during gestation and when do they happen?

In this, David Brooks provides useful information.[4]  He reports:  at the fetus stage, a fetus grows 250,000 brain cells a minute and by birth has 20 billion brain cells.  He/she develops early in the fetus stage taste buds which can recognize sweetness and garlicky flavors from mother’s latest meal.  The fetus, at five months (out of nine) will begin to withdraw from pain.  By the third trimester, the fetus’ eye movement indicates he/she is probably dreaming during sleep.  It isn’t until the third trimester that he/she indicates any consciousness even of his/herself.

“Herold [the name Brooks gives his exampled case] spent nine months in the womb, growing and developing, and then one fine day, he was born.  This wasn’t a particularly important event as far as his cognitive development was concerned, though he had a much better view.”[5]  Of course, gestation is noted for a whole slew of developments, some being extremely complex.  But what teachers should ask students is:  if being a person is the criterion, as the right-to-choose people argue, then of these developments, which are most relevant to the concern over whether a fetus is a person?

The Supreme Court has answered that question with the determination that at the third trimester of gestation, the fetus has unqualified right to be considered a person.  Extreme measures – such as the endangerment of the mother’s life – need to be in place for that fetus’ life to be legally terminated.  But a one-month fetus or even a five-month fetus is not considered enough of a person to be granted unquestioned rights of a person.  Is this a correct standard or the application of a correct standard? 

Some argue that not even a fetus of any age should be granted those rights.  What do students think, if they can get pass the religious standard to consider such a question?  But even religious people should consider this question because it helps them know and understand where the right-to-choose people are coming from. 

Similarly, the right-to-choose people should know and understand the reasoning of the right-to-life people.  Even if it is difficult, given the importance of the issue, helping students to do this – either way – falls within the responsibility of civics instruction.  At least, it seems to this writer, that is the case for any civics teacher that accepts federation theory to guide his or her efforts.

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[1] Philip Selznick, The Moral Commonwealth:  Social Theory and the Promise of Community (Berkeley, CA:  University of California Press, 1992).

[2] “Religious Liberty:  Landmark Supreme Court Cases,” Bill of Rights Institute, n.d., accessed November 7, 2019, https://billofrightsinstitute.org/cases/ .  One should note that this was a federal law, not a state law which usually legislates over police power issues; i.e., laws protecting the welfare, safety, justice, morals, order, and health of state’s citizenry.

[3] Ibid.

[4] David Brooks, The Social Animal:  The Hidden Sources of Love, Character, and Achievement (New York, NY:  Random House, 2011).

[5] Ibid., 31.