Lifewatch: The Eight Week Solution

I suggested last month that the pro-life movement ought to invite prospective candidates for office to ponder the strategy of the Modest First Step: It was one thing for candidates to commit themselves to a grand constitutional Human Life Amendment that they know has no chance of passing — and then remain silent on the subject for the rest of their campaigns. It was a rather different matter to say that, of course, we are seeking eventually the protection of all human life from its earliest moments, but that we are going to start now, in this campaign, with this modest first step — whatever it happens to be. I suggested, also, that the pro-life movement has developed a virtual inventory of such modest first steps. These measures could command a broad consensus within the public and relieve the sense of panic among politicians, who seem remarkably fearful about talking on this subject, for a class of people so much given to talking.

Over the next several months, I will report on some of the Modest First Steps that would be recommended by leaders in the pro-life movement. These are people who have absorbed themselves in this issue, many on a full-time basis, for the last 15 to 20 years. They have also had the occasion to consider the question after a lengthy seasoning in politics, which means that they can bring to this reckoning an ear tuned to the arguments that are apt to be taken seriously.

Over the last few months, there has been an interesting convergence of proposals on the part of people who have not been associated with the national right-to-life groups. And indeed, in one case, the proposal sprung from an accomplished writer who had been detached up to now from the controversy over abortion. The latter is James Q. Wilson, a distinguished political scientist, and past president of the American Political Science Association. In the January issue of Commentary, Wilson offered a piece called “On Abortion,” which marked a notable step for Commentary. This was the first piece in Commentary that has called for restrictions on the “right to an abortion” and a scaling down of that unmodulated license created in Roe v. Wade.

Wilson suggested that a woman who was considering an abortion should be brought into a room containing “266 photographs … one for each day of embryonic or fetal development.” She would be shown what the child in her womb might look like (“as near as we can tell”), and she would be advised that “you should know this before you make a final decision.” That is to say, the decision would still rest with her; it would still hinge on her own consent and judgment after she had been “informed.”

But with much hedging and indirection, and with ample allowances for “exceptions,” Wilson would actually restrict abortions after a gestational period of eight to ten weeks. Wilson works on the maxim that “people treat as human that which appears to be human.” And at eight weeks, he thinks that the natural sentiments of the public can be recruited on behalf of the unborn child. At the ninth or tenth week, the fetus would exhibit “local reflexes,” such as swallowing or squinting or moving its tongue. At the eighth week, fingers and toes are discernible. By this point, then, the evidence of the senses would suggest, even to people of the most clouded perception, that the being in the womb is a “child.”

Of course, those who have heard something about the advances in embryology over the last 200 years will know that we have some astoundingly precise information about the nascent being and its human attributes, even before it lands at the uterine wall. In all strictness, we do not need to see the child sucking its thumb in the womb before we know that we have an offspring of Homo sapiens. Still, Wilson has not been the only one drawn to this “eight-week solution.” The new Republican governor of Virginia, George Allen, settled upon this position as a moderate stance in his campaign last fall against a Democrat described as “radically pro-choice.”

Just how much Allen actually spoke about this issue is not clear to those of us removed from the scene, since not much news on this point seemed to make it out of Virginia. Nevertheless, the rationale for Allen’s position was explained recently in the National Review (December 27), in a piece by Frank Fischer (a physician), Richard Wilkins (a professor of law), and Steven Hemler (the founder of the Tri-cities chapter of Tennessee Volunteers for Life). The writers were quite clear that the formula of “eight weeks” was not “satisfying as a long-term goal to those who oppose abortion for moral reasons.” But it had the advantage, they thought, of a “short-term goal … acceptable to the majority of Americans.”

Again, the advantage lay in an appeal to the kind of evidence that registers instantly with most people: “Brain-wave activity is consistently present [by eight weeks, though the heart has been beating since three weeks after conception] … the heart, kidneys, liver, stomach, and other organs are functioning and all external bodily parts are formed.” At the same time, nothing in this inventory would suggest that the child, before this point, was anything less than human. As the writers avow, “this proposal does not contradict the pro-life tenet that human life begins at conception. It merely establishes the most currently attainable point for beginning legal protection.”

But there is where the argument begins to slip: in the subtle suggestion that the claim of the law to protect the child is somehow marked by these gross features — by the current state of our equipment in recording electrical activity in the brain, or by the shifting perceptions of the public on the beginning of human life. Of course, it should be precisely the aim of the law to induce a shifting of those perceptions. The rationale of staking out these moderate positions, or taking these first steps, is to encourage the public to take the next step … and the next: If we can protect the child at the point of viability, why not a week before; or if at eight weeks, why not at six weeks? If we could suddenly leap past all of the arguments over trimesters and viability; if we could find a consensus in the country to protect the unborn child at eight weeks — and if we could actually begin forbidding some abortions — who in the pro-life movement would not rejoice?

But the problem with the “eight-week solution” is that it has an implausibly wide reach, while it runs the risk of teaching the wrong lessons. It supposes that politicians, who have been reluctant to speak about restrictions on abortion even in the last weeks of pregnancy, would find it easier to make a leap and begin pondering restrictions on abortions only a few weeks after a pregnancy test. A boon if it could happen. And yet, as ambitious as this plan may be, it may not help to plant the right principles. In the sweep of conviction necessary to enact the rule of “eight weeks,” there is an immanent danger that the public will talk itself firmly into the argument of the proponents: that this is indeed the most reasonable way of establishing, in the law, the beginning of human life. The problem at the root is that the law would finally be based here on what the child in the womb happens to “look like” to most people — and not on the commanding fact of what that child, ineffaceably, is. The protections of the law would not hinge then on the nature of the child; they would be contingent, rather, on the state of the onlookers, on the question of what the rest of us “perceive” when we look upon the sonogram of the unborn child.

The redoubtable Immanuel Kant once warned that even if we were unanimous in our feelings on any subject, that unanimity of sentiment would still not provide the ground of a moral judgment. If the whole country suddenly found itself concurring in a preference for frozen yogurt, nothing in that unanimity of feeling would provide a ground for making the yogurt compulsory. If 99 percent of the people in this country achieved a consensus in the perception that life begins at 7-9 weeks in the womb, nothing in that consensus would provide a ground on which to impose that judgment on the woman who looks at the ultrasound and reports that she, at least, “sees” nothing she regards as human.

Still, to the proponents of the “eight-week solution” we can only say: God-speed. If this proposal actually takes hold on the imagination of politicians and becomes the ground of legislation, some of us would do handstands. But the drawbacks in the scheme remind us of the warnings put out by other leaders in the pro-life movement: namely, that it may be wiser to offer restrictions on abortion that do not depend on the age of the child but on the wrongness of the ground for the abortion. If it is wrong, say, to destroy a child because she happens to be a female, that wrongness would not be altered at any point by the age of the child. And as the surveys suggest, most people in the country turn out to be sensitive to this kind of reasoning. In this season of reflection, then, it is worth returning to the friends who have offered this counsel and remind ourselves of the reasons they have urged upon us.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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