February FREEDOM WATCH Online

Of all the recent issues that have separated us, none is more divisive than the debate over abortion. The division has taken on aspects of a Shakespearian tragedy in that many participants, on both sides, could otherwise have formed close alliances battling poverty, disease, environmental degradation, and violence. The fact that we don't have those alliances magnifies the tragedy. We need to find a middle ground.

If one strips away the rhetoric surrounding the issue - the allegations of baby killing, control of one's own body, etc .- and closely examines the abortion question, it quickly becomes apparent that the underlying issue is not about abortion but about the definition of when, exactly, a human being is created from the contributions of its parents. Is it when the egg is fertilized, when an infant is born, or somewhere in between? It took 20th century medicine and Roe v Wade to give that question the significance it has today, intertwined with science, religion, politics, and law. During our recent election a proposed amendment would have made the moment of conception the official start of life under Colorado's constitution. Although the amendment was soundly defeated we'll undoubtedly be revisiting the underlying issues again and again. It often seems that the so-called pro-lifers and advocates for choice occupy such mutually exclusive positions that no middle ground is possible. I think that there is a middle ground available based on concepts that most Americans already accept. To find it we need to start with the basic questions.

So when does human life begin? When did you come into existence? It's not an easy question to answer. It's the principle question of ontology, the field of metaphysics concerned with the nature of being. Philosophers have been arguing about it for well over 2,000 years. Until the twentieth century it was a largely scholarly question with little pertinence to anyone outside academia; but scientific and medical progress has brought it into the mainstream to the point where it has provoked passions leading, at times, to murder. What makes it such a difficult question is that it's not one that science can answer. Science deals almost exclusively with process; matters of cause and effect using systematic observation or experiment to determine the causes of natural phenomena. In this case, we're not dealing with a process, but rather a definition of what, exactly, is a human being.

It may be easier to re-frame the question using the concept of "moral standing." Something possesses moral standing if it has an intrinsic worth irrespective of its value or utility to humans. Something that has moral standing must have its welfare taken into account before any action is taken that affects it. There are varying degrees of moral standing. In western society a dog, for example, has a higher degree of moral standing than a steer raised for meat, but not as much as you or I, who would have the highest degree of moral standing. A building has no moral standing because its value is based entirely on its utility to people whether for commercial, emotional, or aesthetic reasons. The question of when, in the course of gestation, a human being "appears" could be understood in terms of the points in its development at which a fetus gains varying degrees of moral standing.

The responses to this issue range from the moment of conception to the initiation of self awareness. The answers are often grounded in theology with many people basing their answers on biblical passages. Biblical interpretation, however, is not a valid basis for establishing rules of law since it invariably pits the opinions of one set of believers against those of other believers, other faiths, and non-believers and ultimately fails the test of the First Amendment. In response, supporters of the "moment of conception" have claimed that their hypothesis is backed up by science. They argue that at the instant of fertilization a distinct individual is created because the resulting zygote contains all the DNA of a unique human identifiably different from its mother or father. Those facts are correct, but this argument relies on the idea that a "human being" with moral standing can be defined as a single cell containing a full set of chromosomes. That's far from a universally accepted definition since almost every cell in the human body, including those we routinely discard without a thought, meet those criteria, and given that 21st century bioengineering can theoretically be used to clone a new human. Another argument that's often used is based on potentiality: If left to develop, the zygote will become a human being, so destroying the zygote is akin to killing a human being. Taken to its logical extreme that argument also implies that, by not procreating to our maximum potential, we are killing human beings that would otherwise be born. None of this means that the "moment of conception" argument is wrong. It's perfectly correct based on the theology of its proponents. It's just a poor policy in a religiously diverse society to use the theology of a few to write laws binding on all.

One approach to answering the question of when a human being "appears" can be made by examining the other end of life's trajectory: death. There is, nationally, a high degree of consensus about the conditions necessary to declare death. In Colorado, an individual can be declared dead if "(a) He has sustained irreversible cessation of circulatory and respiratory functions; or (b) He has sustained irreversible cessation of all functions of the entire brain, including the brain stem" (Colorado Code 12-36-136). These determinations can be made with relative ease, and provide a fixed point at which an individual can be declared dead triggering all the subsequent legal and medical consequences. Those conditions are also widely accepted among most, but not all, Americans (see Terry Schaivo). The existence of either one of those conditions creates a boundary separating a living human being having moral standing from a set of human remains that are basically property with little moral standing. Even after that boundary has been crossed, many of the individual's cells, and indeed entire organs, are still alive and healthy and may be kept so indefinitely through artificial means.

A good case can be made for using analogous markers for designating the points that we can consider to be the start of moral standing for a human being "under construction." If one uses these criteria, a degree of moral standing would start between 6 and 8 weeks when the brain stem starts to function. At that point the fetus could be considered to have the moral standing similar to that of an individual diagnosed as being in a vegetative state. A higher degree of moral standing would be assumed between 24 and 36 weeks when, it is estimated, cortical activity associated with higher brain functioning, including consciousness, begins.

If these concepts were used as the basis of law governing access to abortion we might end up with a system that allows abortion for any reason up to eight weeks. Within that window, the moral and physical standing of the fetus would be equivalent to a patient with no brain function - a situation that, at the other end of life, would allow the discontinuance of life support measures. From 8 to 24 weeks the fetus would gain the moral standing of a patient with a functioning brain stem that lacks the cortical functioning enabling consciousness - a condition often called Permanent/Persistent Vegetative State (PVS). Although the treatment of PVS patients can still arouse controversy, most courts and medical authorities have allowed the discontinuance of life support for those patients, especially if supported by prior directives or the concurrence of next of kin. Applied to the question of the permissible abortion time frame, it would allow for abortion based on the decision of the mother although the fetus' increased moral standing should require more specific, and pressing, reasons for the procedure. After the 24th week, the fetal brain starts gaining the cortical growth needed for consciousness. An abortion decision after that point should have to pass a higher moral test, perhaps only if the mental or physical health of the mother were at great risk.

This proposal will obviously not satisfy individuals at the extremes of the abortion debate, such as those who insist that a human possessing the highest degree of moral standing is created at the moment of conception, or those who, in effect, claim that a fetus has no moral standing until after the moment of birth. I believe that neither of those positions is supportable by either the Constitution or logic. One is based on a parochial theological interpretation, the other flies in the face of what we know about human development. These are, I believe, irreconcilable positions. Perhaps using an approach based on moral standing could provide a way out to the middle ground, where most of us would prefer to be.