The Legitimacy and Limits of Freedom of Choice
by Kenneth Cauthen
Dr. Cauthen is the John Price Grazer Griffith professor of theology at Colgate Rochester Divinity School/Bexley Hall/Grazer Theological Seminary. This article appeared in the Christian Century, January 1-8, 1981, pp. 702-704. Copyright by The Christian Century Foundation; used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted and Winnie Brock.
The controversy over abortion is frequently reduced to a battle of slogans. "Abortion is murder." "Women should have the right to control their own bodies." Liberals generally are aware that the former assertion is open to question. Thoughtful liberals recognize the limits of the latter claim. But my impression is that the people with whom I usually find myself in alliance are not equally cognizant of the shortcomings of a third claim, which goes under the heading "freedom of choice." My concern here is with the pro-choice argument, although I hope the social and ethical principles I cite may provide a framework in which other partial appeals may be evaluated.
Should a woman with an unwanted pregnancy have the freedom to choose an abortion for herself, or should the state forbid abortions to everybody? This issue is part of a class of problems related to the extent of individual freedom permissible in relation to. the state’s right to limit freedom for social and moral reasons,
The Tension Between Freedom and Limits
Let me begin by stating that a good society will do three things: (1) It will protect and promote the welfare of all its citizens. (2) It will provide a range of freedom for individuals as extensive as possible compatible with equal freedom for all other persons. (3) It will provide rights, opportunities, protections and rewards to all on an equal basis and will not discriminate against any person on irrelevant grounds. These are principles that most Americans would generally accept. But within any society that seeks to be just and good, a tension will inevitably arise between individual freedom and the right of the state to limit freedom for moral and social reasons.
Initially, it seems wise and just to give individuals as much freedom as possible to do as they please, consistent with an equal freedom for everybody else. But we also recognize the right and necessity for the state to limit freedom when its exercise harms other people, infringes upon their rights, or offends accepted moral principles. A simple example: we take it for granted that individuals should be free to go to the ice cream parlor and choose whether to have vanilla or chocolate or tutti-frutti or whatever. However, we also assume that the state should prohibit individuals from going to the ice cream parlor and forcing the waiter at gunpoint to serve up a dish of tutti-frutti. Armed robbery is a crime. The state rightfully limits freedom of choice with respect to armed robbery. It permits freedom of choice between vanilla and tutti-frutti when the ice cream is going to be paid for.
A good many of the issues that baffle us today have to do with the tension between individual liberty and social legislation limiting freedom of choice. If I own a business and want to hire people to work for me, do I have freedom of choice with respect to the persons I will employ? Suppose I am prejudiced against Jews, blacks, women and southerners. Do I have a right to employ only white northern gentile males? The legislative consensus of our society is that we do not have this freedom.
Other issues are even more difficult. When does "affirmative action" to hire minorities become "reverse discrimination" against majorities? The answer is not easy.
We have recently been reading about the case of Chad Green. The courts ordered chemotherapy for two-year-old Chad -- a conventional medical treatment for leukemia. The parents objected; preferring to rely on the unproven effects of the drug Laetrile, they fled Massachusetts and went to Mexico. The child eventually died. Does the state have the right to decide the appropriate medical treatment for children against their parents’ wishes? Most people would probably say, "Well, it all depends." But depends on what?
Mary Northern, an elderly woman, was taken from her home in Tennessee by the police. Her feet had been frostbitten and then burned while she was trying to thaw them by an open fire. Gangrene set in. The doctors tried to persuade her to have her feet amputated to save her life. She refused. The courts ordered the operation anyway, against her will. Did Mary Northern have the right of choice with respect to her own legs and her own life?
In Pittsburgh a judge ordered a man to explain why he should not be forced to give 21 ounces of bone marrow to save the life of his 39-year-old cousin. A doctor testified that removing the marrow presented a minimal risk for the donor and offered the recipient a 50 per cent chance to live. Because they were close relatives, the transplant was likely to be successful. Does the state have the right to force a person to give a part of his or her own body to save the life of another? Or should the individual have freedom of choice?
Conflicts arise between individual freedom of choice and the right of the state to protect and promote the welfare of all its citizens. Let me state some principles that may help us mediate between the range of state action and the scope of individual choice: (1) The state should limit freedom of choice when the exercise of that choice will cause significant, irreparable or unnecessary harm to another person or persons. (2) Freedom of choice should be curtailed when actions flowing from that choice have extensive social consequence in violation of widely or universally held beliefs and values (e.g., the Mormon choice to practice polygamy).
Now let us look at the other side. (1) Freedom of choice should be allowed when the consequences are limited to those making the decision or have trivial, or beneficial or nonobjectionable effects on others. (2) Freedom of choice should be allowed in those matters on which a plurality of views are held -- views based on well-articulated principles rooted in cultural tradition or widely recognized moral, philosophical and religious beliefs. For example, the right to conscientious objection to war is recognized in the U.S. and several other countries.
Now these two sets of principles are in tension with each other, but they help us get a bit more specific in trying to decide whether the state should prohibit or permit freedom of choice on certain matters. In the final analysis, intuition and judgment have to bridge the remaining distance between general principles and a particular case. That is where the battle is frequently fought, because our final application of principles puts some of us in conflict with others who come out at a different place.
Finally, let us come to the question of abortion itself. Consider the relationship of a mother to a child or fetus. We would all agree that the state should permit a mother to choose whether she will use Pampers or cloth diapers. We would all agree that the state should not permit a mother to kill her five-year-old child for persistent disobedience. The principles I have stated above will serve very well to tell us why the state should permit choice with respect to diapers and to prohibit it with respect to murder. Now for the tough one. Does the state have the right to prohibit a woman from terminating an unwanted pregnancy by abortion in the early stages -- say, the first trimester of pregnancy? Or should freedom of choice be permitted?
A Basis for Decision
How shall we decide? The question now finally comes down to two points relating to the principles I have stated.
1. How do we regard the status of the fetus? At what point does a developing embryo or infant acquire the full rights and status and protection of a person? Those who believe that human life begins at the point of conception rightly conclude that the state should forbid freedom of choice with respect to abortion. For them, abortion is murder. It is comparable to taking the life of a five-year old child. Those who believe that the full rights of personhood are not acquired until some later stage of pregnancy or at birth can agree that terminating an unwanted pregnancy in the early stages is a morally defensible option. It serves the legitimate rights and purposes of the potential mother without unduly infringing upon the legitimate rights of others. Therefore the woman should have the freedom to choose an abortion.
2. There is a second issue, involving a tension between two of the principles elaborated already. The anti-freedom-of-choice advocates hold to one of them, pro-freedom-of-choice advocates to the other. As I said earlier, the state should restrict freedom of choice when the exercise of that freedom has extensive social consequences violating widely or universally held beliefs and values. Those who say that freedom of choice should not be allowed in the case of abortion can appeal to this principle. I also indicated that the state should permit freedom of choice on matters where a plurality of views are held, based on well-articulated principles rooted in cultural tradition or widely recognized moral, philosophical or religious beliefs. The pro-choice advocates can appeal to this principle.
To summarize, the view that freedom of choice should not be permitted in the case of abortion is based on two principles: (1) Abortion does grievous, irreparable and unnecessary harm to the developing fetus, regarded as deserving the full rights of personhood. (2) It violates widely held beliefs and values in our society and has extensive social consequences.
Those who advocate freedom of choice in the case of abortion base their argument (or could do so) on two principles. (1) It serves the interests of the mother and does not do grievous or unnecessary harm to another person since the fetus is not in fact or claim a full person. (2) A plurality of responsible views are held in our society about the morality of abortion, and the state should not force everyone to live by the standards of one segment of society.
Since my appeal here is primarily to freedom-of-choice advocates, let me suggest two pertinent conclusions from this discussion. First, it should be recognized that those who would forbid freedom of choice are taking a political view consistent with their moral view that abortion is murder. Second, those who advocate freedom of choice have a weak case in the absence of a position on the humanity of the fetus. Freedom of choice is not a moral option for the state to choose if indeed the embryo or fetus is regarded as an "unborn child." Only if the full personhood of the developing fetus can be denied on responsible moral grounds can the freedom-of-choice option arise as a fully defensible social policy. Some pro-choice advocates ignore or avoid this point because it complicates the arguments.
Those who are willing to base their argument permitting abortions entirely on the plurality-of-views doctrine should ask themselves questions like the following: Suppose some people thought it permissible for mothers to kill their disobedient five-year-olds (cf. Deut. 21:18-21). How many people would be required to hold that view before we should grant freedom of choice in this case? Some people believe (often on theological grounds) that it is all right to discriminate against blacks and women. How much weight is to be given the plurality-of-views doctrine in this area as a basis for granting freedom of choice to discriminate?
A weak case can be made for permitting abortions on the grounds that responsible people disagree on the matter. A stronger case would include a defense of the incomplete humanity of the fetus. A person who believes that abortion is wrong is on shaky ground in granting others the option to practice it solely on the basis of freedom of choice. Either abortion must be shown to be a special case, or freedom of choice must be allowed in other cases where a person calls for state action to enforce his or her convictions. I am convinced that there is no position on this issue that does not have highly objectionable consequences. Clarity and consistency are well-nigh impossible, no matter which option we choose. But that is all the more reason for us to think as clearly, coherently and deeply as we possibly can.