Kenneth Cauthen

Copyright © Kenneth Cauthen 1999. All rights reserved. 
One of the basic questions every society must face is which areas of behavior to leave to private choice and which to regulate in the interests of public good. Initially, it seems wise and just to give individuals as much freedom as possible to do as they please, consistent with an equal freedom for everybody else. But we also recognize the right and necessity for the state to limit freedom when its exercise harms other people, infringes upon their rights, or is detrimental to society as a whole. A simple example: we take it for granted that individuals should be free to go to the ice cream parlor and choose whether to have vanilla or chocolate or tutti-fruiti or whatever. However, we also assume that the state should prohibit individuals from forcing the waiter at gunpoint to serve up a dish of ones choice. The state rightfully limits freedom of choice with respect to armed robbery.

Libertarians invoke the principle of John Stuart Mill that an action that does no harm to other people is not to be the subject of state action and would exempt both the economy and individual behavior from extensive government regulation. Many conservatives believe that some matters of private behavior are moral matters of public concern and should be prohibited but are happy to leave a wide variety of economic choices and business matters free from government control. They would regulate the sexual behavior of individuals in accordance with conventional norms but argue for something close to laissez faire capitalism. Many liberals would leave many personal matters relating to sex, marriage, procreation (abortion), the ending of life (euthanasia), and the like up to individuals but contend for strong regulation of the economy and public life, especially where it affects women and minorities. Many populists would regulate certain matters of private behavior and some areas of business, especially to protect the poorer classes from corporations and the wealthy. The American Civil Liberties Union fights to protect individual liberties and offends many by their alleged neglect of the public good by virtue of supporting reprehensible individuals and causes. In comparison with 19th century, present-day law regulates private sexual behavior less and economic activity more. A hot debate at the moment is whether to permit unlimited spending by candidates for office under the Constitutional protection of "free speech" or to limit it to reduce the corrupting power of money in electing government officials and influencing legislation.

It is not always easy to draw the line between private and public. The advice of Mills would be good if only we knew when it applied. Certainly it should pertain to masturbation and sexual acts between consenting adults, as well as to choice of breakfast menus and preference in bath soap and deodorants. But what about "hate crimes?" Do we punish just the crime or the hate too? Should a homeowner who rents out part of the house be free to refuse to accept as tenants an unmarried heterosexual couple or two gays or lesbians? How many employees should a family-owned business be allowed to have without being subject to laws against discrimination based on race, gender, sexual orientation, religion, or nationality? Should motorcyclists be compelled by law to wear helmets? Should passengers in cars be required to wear seat belts? What kinds of gun control reduce violent crime? What kinds infringe upon individual rights? When do private decisions have relevant implications for social good?

No clear-cut principles can draw a line that is easily applied that does not get us involved in ambiguities and contradictions. We have to rely on good judgment in particular cases, keep adjusting rules in light of their consequences in experience, do a lot of muddling through, and live with a lot of compromises, inconsistencies, and logical puzzles. As is the case with all law, policies that seek to maximize individual freedom, limit social harm, and promote the public welfare runs into complexities in specific cases that tax our wisdom. Social engineering is a difficult art even when science contributes its best knowledge. A pragmatic approach that learns from and tests principles in experience is essential.

Abortion, drugs, and prostitution are splendid cases in which to explore the connections between private choice and public good. My biases are libertarian and liberal in terms of maximizing individual choice in personal life but more left-leaning in matters of economics, poverty, health care, and the like. Let me proceed to the devil in the details.

Some Mid-Range Principles

While we cannot fully eliminate the need for judgments to bridge the gap between general rules and the complexities and ambiguities of particular cases, it may be helpful to state some mid-range principles that will take us part of the way with respect to the scope of individual choice. A. The state should limit freedom of choice when the exercise of that choice will cause significant, irreparable or unnecessary harm to another person or persons. B. Freedom of choice should be curtailed when actions flowing from that choice have extensive social consequence in violation of widely held beliefs and values (e.g., the Mormons choice to practice polygamy).

Now let us look at the other side. 1. Freedom of choice should be allowed when the consequences are limited to those making the decision or have trivial, or beneficial or non-objectionable effects on others. 2. Freedom of choice should be allowed in those matters on which a plurality of views are held based on well-articulated principles rooted in the cultural tradition or in broadly-recognized moral, philosophical and religious beliefs. For example, the right to conscientious objection to war is recognized in the U.S. and several other countries.

These two sets of principles are in tension with each other, but they help us get a bit more specific. In the final analysis, intuition and judgment have to bridge the remaining distance between general principles and a particular case. That is where the battle is frequently fought, because our final application of principles puts some of us in conflict with others who come out at a different place.

With respect to abortion, consider the relationship of a mother to a child or fetus. Does the state have the right to prohibit a woman from terminating an unwanted pregnancy by abortion in the early stages - say, the first trimester of pregnancy? Or should freedom of choice lie permitted?

The decision finally comes down to two points related to the two principles I have stated. How do we regard the status of the fetus? At what point does a developing embryo or fetus acquire the full rights and status and protection of a person? Those who believe that full human life begins at the point of conception rightly conclude that the state should forbid freedom of choice with respect to abortion. For them, abortion is murder. It is comparable to taking the life of a five year-old child. Those who believe that the full rights of personhood are not acquired until later stage of pregnancy or at birth can agree that terminating an unwanted pregnancy in the early stages is a morally defensible option. It serves the legitimate rights and purposes of the potential mother without unduly infringing upon the legitimate rights of others. Therefore the woman should have the freedom to choose an abortion.

2. A second issue involves tension between two of the principles elaborated already. The anti-freedom-of-choice advocates hold to one of them, freedom-of-choice advocates to the other. As stated earlier, the state should restrict freedom of choice when the exercise of that freedom has extensive social consequences violating widely held beliefs and values. Those who say that freedom of choice should not be allowed in the case of abortion can appeal to this principle. I also indicated that the state should permit freedom of choice on matters where a plurality of views are held, based on well-articulated principles in the cultural tradition or on widely recognized, philosophical or religious beliefs. Pro-choice advocates can appeal to this principle.

To summarize, the view that freedom of choice should not be permitted in the case of abortion is based on two principles: (1) Abortion does grievous, irreparable and unnecessary harm to the developing fetus, regarded as deserving the full rights of personhood. (2) It violates widely held beliefs and values in our society and has extensive social consequences. Those who advocate freedom of choice in the case of abortion base their argument (or could do so) on two principles. (1) It serves the interests of the mother and does not do grievous or unnecessary harm to another person since the fetus is not in fact or claim a fully actualized person. Not to allow it would have extensive negative social consequences. (2) A plurality of responsible views are held in our society about the morality of abortion, and the state should not force everyone to live by the standards of one segment of society in this case.

First, it should be recognized that those who would forbid freedom of choice are taking a political view consistent with their moral view that abortion is murder. Second, those who advocate freedom of choice have a weak case in the absence of a position on the humanity of the fetus. Freedom of choice is not a moral option for the state to choose if indeed the embryo or fetus is regarded as an "unborn child." Only if the full personhood of the developing fetus can be denied on responsible moral grounds can the freedom-of-choice option arise as a fully defensible social policy.

Those who are willing to base their argument permitting abortions entirely on the plurality-of-views doctrine should ask themselves questions like the following: Suppose some people thought it permissible for mothers to kill their persistently disobedient, incorrigible teenagers (cf. Deut. 21:18-21). How many people would be required to hold that view before we should grant freedom of choice in this case? Some people believe (often on theological grounds) that it is all right to discriminate against blacks and women or at least think they should be able to if they want to. How much weight is to be given the plurality-of-views doctrine in this area as a basis for granting freedom of choice to discriminate? Some liberals want freedom of choice with respect to abortion but deny it when it comes to racial and gender discrimination. 

Personal Conclusions

My own conclusion is that a case can be made for permitting legal abortions by free choice in the early stages of pregnancy. But I believe that the case is much stronger if it is made on both grounds. Abortion does not violate the rights of a person with full status. A foetus has much actual value and even greater potential value and should be aborted only for good and sufficient cause and not for trivial reasons or mere inconvenience. Moreover, the further the pregnancy proceeds the greater must be the grounds for terminating it. Full personhood emerges over a period of time. It is not present at the moment of conception. The second ground is that divergent views are held by responsible people arguing from well articulated moral points of view rooted in cultural traditions recognized by society.

The argument from freedom of choice alone is weak. Those who advocate legal abortions on this ground frequently are in the forefront of those calling for coercive state action to prohibit freedom of choice to those who would discriminate against women or blacks or homosexuals. In so doing they are in danger of being inconsistent and arbitrarily selective in choosing where the state should or should not permit freedom of choice. Those who argue that from the moment of conception the full rights of personhood are present are consistent in arguing that the state should prohibit abortion. if the embryo or foetus is indeed an "unborn child," freedom of choice is not a moral option with respect to abortion, for abortion is murder. Only if the full personhood can be denied on responsible moral and philosophical grounds is legal abortion a permissible social policy. Some pro-choice advocates tend to ignore or avoid this question because it is so controversial. Abortion as a private matter of conscience and of public policy, indeed, presents us with painful dilemmas. There is no solution that does not have unwanted but unavoidable consequences.

Consider three people. The first believes strongly that abortion is the unwarranted termination of innocent life. The second believes that human life is a process that begins at conception but that full personhood with all the associated rights emerges sometime late in pregnancy. The third really doesn't know what to believe. The second and third individuals may consistently advocate legal abortions and freedom of choice for individuals. But is it not inconsistent for the first person to take the freedom of choice option? Yet many who write freedom of choice resolutions for churches and other groups do just this. Some of them say, "I personally believe that abortion is wrong, but I don't want to force my beliefs on those who disagree with me." Would the same person also say, "I personally believe it is wrong to discriminate against women, blacks, and homosexuals in matters of employment, but I don't want to force my beliefs on those who disagree with me"? Is there a relevant distinction between a willingness grant freedom of choice in the abortion issue but not in matters of discriminatory hiring? If there is, the inconsistency may only be apparent. A person who believes both are wrong might argue like this: "I am convinced that the defense of racial or sexual discrimination in hiring is based on inferior grounds, on prejudice that is without moral warrant. However, while I finally reject it, I have respect for the view that the foetus is not a fully actual person and thus for the position that abortions are permissible in the early stages of pregnancy for good reason. Hence, I am willing to grant freedom of choice in the case of abortion and not in the case of discrimination in employment."

It is superficial to see the issue simply as a matter of some people trying to use the coercive power of the state to force their own views on others. That is the argument that segregationists in the South used when federal troops forced integration of schools. All legislation forces the will of some on others in the absence of unanimous opinion. The crucial question is whether there is a sufficiently strong social consensus on the matter or abortion to justify enforcing majority views on dissenting minorities. Such consensus does not guarantee the rightness of the policy, but a democratic society cannot function any other way. Decisions always have to be made by societies about practices which are thought to cause intolerable harm to non-consenting persons. The issue is whether there is strong enough agreement to establish a community standard to be enforced by the power of the state. My point is simply that the moral status of the foetus cannot be ignored in sole preoccupation with the freedom of choice argument. Genuine uncertainty about this issue on the part of a person or dispute within a group can be a basis of advocating universal freedom of choice. Certainty about its immorality (because it harms an actual or potential person intolerably) on the part of a person or group is inconsistent with an advocacy of universal freedom of choice. If a person or group is deeply convinced that abortion and legal segregation of the races in schools both do intolerable involuntary harm to persons, how can that person or group agree to permit freedom of choice in the first case but not in the second? It cannot be done consistently unless there is a relevant distinction between the two issues that justifies a different outcome.

If the group in question is the society as a whole functioning as the state, the same principle holds. The difference is only that the government holds a monopoly on coercive power and can enforce its decisions. If the nation through its democratic processes determines that conflicting but morally defensible positions are held on the abortion issue, then freedom of choice may be legitimately granted. However, if the moral consensus of the country, strongly felt, is that racial discrimination is not based on morally sound arguments, even if many people hold them, then it is legitimate to enforce majority views on dissenting minorities. The assumption here is that contrary conclusions may rest on plausible and defensible grounds rooted perhaps in differing philosophical, religious, or cultural traditions. Let us be clear, nonetheless, that national moral consensus does not guarantee moral rightness. Moreover, a consensus may change. That is the risk democracy takes in letting the people rule. Neither does permitting freedom of choice to individuals guarantee that all women who choose abortions will do so on morally sound grounds even as defined by national moral consensus, much less by moral truth as such - which nobody infallibly possesses.

In short, a weak case can be made for permitting abortions on the grounds that responsible people disagree on the matter. A stronger case would include a defense of the incomplete humanity of the fetus. A person who believes that abortion is wrong is on shaky ground in granting others the option to practice it solely on the basis of freedom of choice. Either abortion must be shown to be a special case, or freedom of choice must be allowed in other cases where a person calls for state action to enforce his or her convictions. There is no position on this issue that does not have highly objectionable consequences. Clarity and consistency are well-nigh impossible, no matter which option we choose. That is all the more reason for us to think as clearly, coherently and deeply as we possibly can. [1]

The Current Debate

Much of the public debate about abortion is dominated by the extremists. Advocates on either side argue as if they had the whole truth. For one side, it is simply murder. For the other side, it is a matter of a woman having control over her reproductive capacities. Any policy that appears to either side to compromise their fundamental convictions in slightest is immediately challenged as if everything precious to them is being threatened. Some pro-life proponents identify the fetus as an "unborn child." Some pro-choice supporters minimize the moral status of the fetus. The easy division of people into pro-life and pro-choice camps shows how complex issues are reduced to simple labels and slogans.

The emergence of new life is a continuous process that proceeds over a period of nine months. Designating a specific point at which a potential person becomes an actual person is impossible. It is not simply the question as to whether human life is present from conception on. Clearly life processes are taking place, and certainly it is human life. The question is when a complete person emerges with the fundamental rights that persons have. Let us note that this is not scientific issue but a philosophical and moral one. Science may provide data relevant to the answer but science as science cannot provide the answer. If physicians venture an opinion, they are taking a philosophical and moral position, not making a scientific judgment. The specification of what constitutes a person is not a question that science as science deals with.

No answer is fully satisfactory. The general rule that the further along in the process, the stronger must be the justification for abortion may be correct. But this principle offers little exact guidance. This fact points to the strength of the conservative view that conception itself is the point beyond which no interference is permissible. However, not to recognize the difference between a freshly fertilized egg and a viable fetus is unconvincing. Several conclusions follow.

(1) It would help if both sides recognized the complexity of the problem and that those on the other side are not necessarily lacking in insight or integrity.

(2) The only completely satisfactory solution to the abortion problem is to prevent unwanted pregnancies. Once an undesired conception occurs, an emergency arises that introduces complexities, difficulties, and compromises one would prefer to avoid but cannot.

(3) Some abortions may be justified, but all abortions are to be regretted and involve a compromise of values.

(4) Justification for abortion must always be serious and never trivial. Its casual or routine use as a backup for contraception is indefensible.

(5) The slogan that abortion should be legal, safe, and rare is probably as good a compromise as the situation allows.

(6) Pro-life advocates ought to promote effective birth control methods. Pro-choice advocates ought to encourage sexually responsible behavior, including abstinence. What if they joined hands in a common crusade against unwanted pregnancies?

Even if we got agreement that abortion ought to be legal, the problems would not end there. Should unmarried teenage girls, e. g., be compelled to secure parental permission? Regardless of which side the law takes, some good will result, and some harm will be done. It would help if all parties would recognize that many measures that might be taken to limit abortion have both positive and negative sides. This would not enable us to escape from having to make discomforting choices, but it would facilitate making a tolerable settlement.

A reasonable compromise is made difficult by the zealots on both sides who insist on defining the issue in extremist terms. In the middle are a large body of citizens who are troubled by abortion but who think that to make it illegal would have even more disastrous consequences. We need to hear more from those in the middle who are sensitive to the conflict of values involved. The views of Americans have not changed significantly over the past quarter of a century. Let us resolve this issue since further debate is not likely to change enough minds to shift the balance of political power. It would help if the opposing parties would engage in conversations based on mutual respect to work out an endurable compromise that neither likes but that is appropriate for such an agonizing dilemma. Alas, in today's "in your face" climate, the prospect for that is rather dim.


[1] Some of the material in the preceding section is adapted from my article "The Legitimacy and Limits of Freedom of Choice," The Christian Century (July 1-8, 1981), 702-4, and from my Process Ethics (Lewiston, NY: Edwin Mellen Press, 1984), 268-74. 
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This is one of a series of essays on this site. For the rationale behind them and for a complete list of topics, see:
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Interpreting the Bible Today
The Authority of the Bible
Using the Bible with Integrity
Natural Law and Relativism
What is Truth -- and Does it Matter?
A Doctrine of God
Trinity: God, Christ, Spirit
God as Masculine and Feminine
Theodicy: the Problem of Evil
The Many Faces of Evil
Christ and Christians
A Critique of Niebuhr's Christ and Culture
The Incompatibility of Christianity and Civilization
Christian Ethics
The Ethics of Belief
Morality, Belief, Relativism
Capital Punishment
Physician Assisted Suicide
Theology and Ecology
Religion and Politics
Church and State
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Last Updated: Friday, June 1, 2001,  2:00PM