Politicians and “persons”

By Ken Burrows

In 2017 a federal Sanctity of Human Life Act was proposed to declare that human life begins at fertilization, giving fetuses all the legal “attributes of personhood.” Similarly, the recent Alabama Human Life Protection Act specifically equates the terms “unborn child” and “person” in its aim to make nearly all abortions illegal. Maneuvers like these have politicians arrogantly defining a nuanced concept like personhood by their limited perspective only, when the fact is that religious, philosophical, and legal authorities far more studied on the topic have struggled with personhood definitions throughout history.

It’s unmistakable that religious beliefs about abortion are the main drivers for restricting it, using the claim that fetuses are babies or persons. When she signed Alabama’s new law, Governor Kay Ivey said the measure confirms that “every life is a sacred gift from God”—openly flouting the American principle that religion is not a legitimate basis for secular law. The National Pro-Life Religious Council (NPRC) declares a goal of making “biblical teaching” about life paramount, which the NPRC says includes a belief that a fetus is a “human child.” But not even people regarded as religious icons offer such an unconditional definition of personhood. Consider Saint Augustine, a prominent thinker of the early church, some of whose teachings are revered to this day. He stated that “ensoulment” (being endowed with a soul) was the marker of personhood but went on to say no one knows the point during fetal development when ensoulment occurs. Therefore, he said, “It is not safe for humans to presume they can pronounce on it.”

In the legal arena, Roe v. Wade recognized that the U.S. Constitution does not define “person” literally and stated: “In nearly all instances, the use of the word is such that it has application only postnatally,” with no prenatal application. That’s why the Court in Roe concluded that the state’s interest in protecting potential life becomes “compelling” not at conception but at the point of “viability,” because the fetus at this point presumably has the capability to live outside the womb. Therefore, concluded the Court, there are “logical and biological justifications” for the state to assert its interest at this point. But the Court said this interest must be balanced against pregnant women’s rights, so limitations on those rights must be narrowly drawn.

Positions on abortion held by major religions are varied. The Pew Research Center reports that five religious denominations support abortion rights with few or no limits; another three support rights with some limits; and seven oppose abortion rights with few or no exceptions. (Pew found several other faiths have no clear position.) So religiously driven anti-abortion legislation not only violates secular law principles but also picks winners and losers among differing religions. Even conservative courts have rejected such preferencing. James Madison, father of the Constitution, wrote in 1785 that employing religion in these ways to determine civil policy is “an unhallowed perversion.”

So what’s the answer? Recall the wisdom in Roe. The Supreme Court there relied on “logical and biological justifications,” not anyone’s religious tenets or sentiments, in demarcating when fetal life merits protection. Legislators and other politicians today should work from a similar basis of reason, and not simplistically assert that embryonic “persons” exist at conception as justification to impose their chosen beliefs on all.

Published in the June 5-11, 2019 edition of the Colorado Springs Independent with the quotation below.

We should be free from having someone else's religion practiced on us.”

--- John Irving