I was busy with Thanksgiving plans for about five days and was surprised to see that so much reasonable conversation had happened in the meantime on my previous two posts. There are definitely areas of agreement. I would like to thank those who suggested that I take a closer look at medical information on the subject of fetal viability and public opinion of the second trimester. I confess that I had an incorrect impression of where public opinion lies on the second trimester, and thought I was in the minority there. Taking that information into account made the solution come closer to where I was hoping it would go. I’m going to try this one more time. With this information in mind, it will hopefully be a bit more clear.

Non-Starters

The current state of the Abortion Debate is stalemate. We as a nation are not asking ourselves the right question. This is evident in how evenly divided our nation has been on the question for the past 35 years. Does life begin at conception? Does the woman have a choice? Both questions are non-starters.

Of course it’s life. As is often pointed out by Pro-Life advocates, even Pro-Choice advocates concede that it’s life. Broad agreement on that point, however, has not led to consensus on abortion.

Most polls put the number of people who believe abortion should be illegal in all cases somewhere between 10 and 20%. Link. That means 80 to 90% of Americans are against banning abortion completely. The question of whether or not it’s life is a non-starter even within the Pro-Life movement. Many Pro-Lifers believe that abortion should be permitted in cases of rape, incest, and to save the life of the woman. Such positions are inconsistent with the core Pro-Life argument.

And of course the woman has a choice, but not absolutely. Most polls put the number of people who believe abortion should be legal under any circumstance somewhere between 20 and 30%. That means that 70 to 80% of America are against absolute choice. The question of whether or not the woman has a choice is a non-starter within the Pro-Choice movement as well.

Just as both of the current arguments need to be put to one side in order to rethink the abortion debate, so too must Roe vs Wade be reversed. It is a spacious ruling made on flimsy constitutional grounds that set the precedent for judicial activism. It politicized judicial appointments and continues to lower the dialogue in this country. It also stands in the way of any road to consensus in this nation.

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This isn’t about the hard-liners*

It is a given that there will be hard-liners on both sides who won’t accept any solution short of the totality of their own goals, but this shouldn’t be about catering to an them. As I said in the previous post:

The numbers are different depending upon the survey, but essentially 30% of America is Pro-Life, 30% is Pro-Choice, and 40% are somewhere in the middle. These percentages have wobbled back and forth a bit during the past 35 years but are basically unchanged. Neither argument has enough support to become the majority opinion in this country and there is no reason to believe this will change in the next 35 or the next 100 years.

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The basic plan on both sides is to pack the courts with judges who are sympathetic to their views. That’s a fine plan, but it only works until the other side is able to regain the majority. Gaining such a majority in the courts would be difficult and that majority would be lost as the pendulum swings the other way. That’s because of that 40% of America that’s in the middle on this. You may not like that, you may curse their names, but you won’t ever advance your goals without them.

The point is to find a solution that would be acceptable to the crucial majority in the middle. The debate has catered to the hard-liners for the past 35 years. That has not helped this nation find a solution that the majority of Americans could live with. 80 – 90% disagree with the Pro-Life hard-liners and 70 – 80% disagree with the Pro-Choice hard-liners.

Sooner or later a consensus has been reached on every issue that our nation has dealt with, but it is difficult to see such a thing occurring with abortion. The point is not to find a solution that will make everyone happy– that would be literally impossible – but to find a solution the majority of Americans can live with.

In order to be acceptable to Pro-Choice advocates, the answer would need to afford an opportunity to choose. Abortion would also need to be restricted more than it already is in order to be acceptable to Pro-Life advocates. Above all any solution would need to be on firm constitutional grounds, otherwise it becomes another lighting rod that polarizes the country like Roe vs Wade.

Citizenship and the Right to Life Liberty, and Pursuit of Happiness

Abortion is not addressed in the Constitution as such, but a fair reading of the 10th Amendment indicates that both the state and the people may have the power of abortion. The only justification for the state to become involved in order to prohibit abortion entirely would be to defend the life, liberty, and pursuit of happiness of a new citizen.

The sperm and egg are property of the man and woman. At some point the sperm and egg undergo a process whereby they constitute a new citizen. The point where it becomes a citizen couldn’t be during the first trimester because 60+% of Americans believe that abortion should be legal during that time. On the other hand citizenship needs to be gained no later then the end of the second trimester because 60+% of Americans are opposed to abortion during the third trimester.

The 14th Amendment offers clarity on who counts as a citizen. As I said previously:

The key word there is ‘born’. As a practical matter we do not abort children a day before they would naturally be born because it is obvious the child is capable of surviving outside of the womb. A child that is capable of surviving outside the womb should be considered the same as having been born, with regards to citizenship, because it is capable of doing so.

With current medical technology a child has a 50% chance of surviving if it is are born in the 24-25th weeks. Before that the survival rates drop off. There are cases, however, of survival at 21 weeks. See chart.

If citizenship is gained as soon as the fetus is capable of surviving outside the womb (even if it’s not outside yet – the key word is “capable”, here) then given current medical technology a fetus should gain citizenship no later then 20 weeks. Allowing benefit of doubt to the fetus we could reasonably say the fetus gains citizenship earlier.

Between 60 and 70% of Americans are against abortion in the second trimester and the number of abortions during that period bear that out. Only 1.4% of abortions occur later then the 20th week, and 11.3% of abortions occur after 12 weeks. Link.
Most Americans are already willing to give the child benefit of doubt at 12 weeks.

Given that most women don’t know that they are pregnant until the 6th to 8th week of pregnancy that would give them at least a one month window to have an opportunity to choose. That is really all most people want and something Pro-Choice advocates could very well live with.

Granting benefit of doubt regarding Citizenship would at the very least render abortion illegal during the last half of pregnancy. At the limits of public opinion, it would also render abortion illegal during both the second and third trimesters. The net result of this would be about 155,000 fewer abortions per year by rendering abortion illegal after the 12th week.

Property Rights = Reproductive Rights

Many Pro-Lifers would not be happy with restricting abortion to only the first trimester, but instead of trying to ban it outright they would get farther by settling for making abortions harder to gain. In the first trimester there are still rights to protect.

The reigning argument of Pro-Choice advocates is that a woman owns her own body and that it is her right to do with it as she pleases. They are already making the argument that property rights equal reproductive rights. It would be wise of Pro-Life advocates to accept that she does own her egg and may do with it as she pleases, and insist that it should be carried to the logical conclusion that a man owns his own sperm and may do with it as he pleases as well. Their genetic properties are intertwined. To destroy one is to destroy the other.

Pro-Life advocates should insist that before a woman can have an abortion that she receive permission from the man to destroy his property. Such permission is not guaranteed. Some will consent, some will persuade the woman not to have an abortion, and some will refuse.

The primary exception to this rule would, of course, be rape. The rapist forfeits his Reproductive Rights in the act. One of the few things that the majority of Americans can agree on is that a woman who has been raped has a right to an abortion.

Many of those who are not Pro-Life are predisposed to finding this argument reasonable due to it being argued for so long. Again, the net result would be fewer abortions.

Parental Rights

The second exception to the Property Rights argument would be in the case of a minor. Parental Rights trump Property Rights with regards to abortion. Parents have the right to raise their children how they see fit and their permission is needed for any other medical procedure their child may undergo.

It only follows that a parents knowledge and consent be gained for any abortion to occur. Variations of this argument are already in play. See map.

http://en.wikipedia.org/wiki/Image:MapofUSminorabortion_laws.svg

Twenty-one states currently require the knowledge and consent of at least one parent.

Making that law in the other 29 states would again result in fewer abortions.

Pro-Rights

Taken together these positions are neither Pro-Choice nor Pro-Life. The common theme among these arguments is Rights: a Citizens Right to Life, a Citizens Right to Property, and Parental Rights. Hence the name Pro-Rights.

Both Pro-Choice and Pro-Life advocates are in a war of a piece here a piece there, but eventually both want the whole pie. Both are right to believe in the slippery slope argument because that’s exactly what each side is hoping for. With a Pro-Rights solution there is no slippery slope, only the common ground that the majority of Americans could live with.