On December 3, 2013, The New York Times, The Washington Post, and other newspapers reported on two interesting lawsuits. The American Civil Liberties Union has filed suit against the U.S. Catholic bishops in federal court in Michigan, arguing that “their anti-abortion directives to Catholic hospitals hamper proper care of pregnant women in medical distress, leading to medical negligence” (The New York Times). The case involves a woman whose life was at risk from premature (eighteen weeks) labor at her Catholic hospital, where doctors did not tell her that the fetus could not survive, did not admit her for observation, did not tell her that continuing the pregnancy was a risk to her health/life, and did not mention abortion as a treatment option. In severe medical distress, she soon miscarried, and the fetus died. (Earliest fetal viability is twenty-three to twenty-four weeks of gestation.)
The second suit is a habeas corpus action filed by the Nonhuman Rights Project in a New York State court seeking “legal personhood” for a twenty-six-year-old chimpanzee. If corporations can have legal personhood, then why not a primate who can recognize himself in a mirror, learn standard sign language, invent and use tools, has self-awareness, and has other attributes we consider as those of human persons?
I have personally been involved with both of these issues for well over forty years. In 1974, I published a short novel, Eden II, on the theme of legal personhood for chimps. In the novel, attorneys for a chimp win a court ruling, following Roe v. Wade, that “the legal term ‘person’ was applicable to all beings functioning in the same general manner as the class of beings already recognized by common and statutory law.” Related to the other issue, I served for a while on the board of NARAL (then called the National Abortion Rights Action League) and for over thirty years on the board of the Religious Coalition for Reproductive Choice.
In May of 1987, Americans for Religious Liberty sponsored a conference in Washington, D.C., on abortion rights and fetal personhood, with presentations by Catholic and Protestant theologians, attorneys, and scientists. The papers were published in a book edited by Dr. James W. Prescott and me (Abortion Rights and Fetal ‘Personhood,’ Centerline Press, 1989). This led in turn to an amicus curiae brief to the Supreme Court in Webster v. Reproductive Health Services signed by twelve Nobel laureates, including DNA codiscoverer Francis Crick, and 155 other distinguished scientists. The brief concluded: “The neurobiological data indicate that the fetus lacks the physical capacity for the neurological activities we associate with human thought until sometime after 28 weeks of gestation. In other words, the capacity for the human thought process as we know it cannot exist before that time. Amici believe that these neurobiological facts support the chronology of development this Court recognized in Roe v. Wade.” In other words, being a human person is dependent on the capability for thought and consciousness. The amicus brief is included in John M. Swomley’s 1999 book, Compulsory Pregnancy: The War Against American Women.
Opposition to abortion rights by some Christians is based on the notion that human personhood begins at “conception” or fertilization. However, if persons are “created in the image of God” (imago Dei), this really makes little sense. As the deity of Christian tradition is not composed of flesh and blood, the “image of God” idea must refer to something like consciousness and will, which modern science, as the amici in the Webster case pointed put, is not possible in a human fetus until sometime after twenty-eight weeks of gestation. Note that about 90 percent of abortions are performed during the first trimester and over 99 percent by twenty weeks, with the remainder either before viability (at twenty-three or twenty-four weeks at the earliest) or, if after, only for serious medical reasons regarding the women’s life or health. Incidentally, when politicians of both parties in 2011 supported a “personhood at conception” amendment to the constitution of Mississippi, probably our most conservative and “Christian” state, the voters defeated it by 58 percent to 42 percent.
What is important to keep in mind is that the Republican and conservative assaults on women’s reproductive rights of conscience and religious freedom in Congress, state legislatures, the courts, and the media are in full swing and have enjoyed many successes in recent years. People of all religious and philosophical positions who value women’s rights, religious liberty and church-state separation cannot lower their guard for a moment.