On Terryl Givens and Abortion

October 20, 2020 by Sam Brunson

Yesterday Terryl Givens published what he characterized as “A Latter-day Saint Defense of the Unborn” at Public Square Magazine. He ultimately concludes that Latter-day Saints are obligated to oppose abortion and that there is basically no room for personally opposing abortion but supporting its legality and availability.

Givens seems completely sincere in his revulsion for abortion. But that sincerity has led him to pen (type?) a deeply misleading and unchristian jeremiad against his fellow citizens and fellow-Saints who take the opposite tack.

I’m not going to detail all of the factual and legal problems with his piece, though I will highlight a couple of what I consider to be the big problems. I’m also want to point out that the way he’s framed his argument undercuts any assertion that he makes it in good faith and that it demonstrates a huge lack of moral imagination.

Note that, as I respond to Givens, I’m not arguing that the church doesn’t have a clear position opposing abortion (with a small handful of exceptions). Its policies clearly proscribe members from getting, performing, or paying for abortions most of the time. I am arguing, however, that Givens is wrong that the church’s position requires Latter-day Saints to oppose legal abortion or to support legal restrictions on abortion.

Bad Faith

First things first: why do I say he’s arguing in bad faith? Well, his lead paragraph includes this:

I taught in a private liberal arts college for three decades, where, as is typical in higher education, political views are as diverse as in the North Korean parliament.

Granting that political liberals are overrepresented in academia, this doesn’t describe any faculty I’m aware of. If he believes that his colleagues’ views were identical, he hasn’t put in the effort to get to know or understand them. Moreover, bringing up North Korea—an authoritarian dictatorship where dissent can lead to execution—strongly hints that he’s creating a straw opponent, not engaging in good-faith discourse.[fn1]

Still, though he signals upfront that he’s not engaging in good-faith debate, I’m going to ignore his signals of bad faith take him at his word that he’s trying to engage with pro-choice Saints.

Wrong on the Law, Wrong on the Facts

The constitutional status of abortion isn’t my specialty, but it’s worth pointing out that Givens’s reading of the law gets it remarkably wrong. Most notably, the Roe trimester framework was essentially overturned in 1992’s Supreme Court decision in Planned Parenthood v. Casey. In that case, the Court upheld most of a Pennsylvania statute imposing limitations on abortion. The Court’s new standard asked, not what trimester of pregnancy did the abortion restrictions apply to, but whether they imposed an “undue burden” on women seeking pre-viability abortions. (For a broad, albeit slightly out-of-date, review of the state of the evolution of the right to abortion, read this.)

Givens claims that many states have imposed various restrictions, but the Supreme Court is the ultimate arbiter, and consistently invalidates most such attempts.

The problem is, he’s entirely wrong. Or rather, he’s right that the Supreme Court has struck down blanket bans on abortion. But the courts have been more than willing to countenance marginal changes in state abortion laws. In fact, the states are taking the Supreme Court’s most recent ruling—striking down a Louisiana restriction on abortion clinics—as a win. Why? Because the case changed the underlying legal standard for evaluating whether an abortion restriction comports with its constitutional jurisprudence.

In fact, just last week the Sixth Circuit upheld a Kentucky law requiring that abortion clinics have a hospital transfer agreement. So the idea that abortion regulation always fails in the courts is absolutely absurd.

Givens also claims that because of Doe v. Bolton, time limitations on abortion are effectively irrelevant (because of the slipperiness of mental and emotional health). That’s, how shall we say this, a poor reading of the case. In Doe, the court dealt with a Georgia statute criminalized abortion unless certain criteria were met. One criterion was that a doctor found an abortion necessary because, among other things, the pregnancy endangered the woman’s health. Ms. Doe argued that the Georgia statute was unconstitutionally vague in describing “health.” The Supreme Court held that it wasn’t unconstitutionally vague because “health” had been interpreted to include both physical and mental health. The Court did not, as far as I can tell, either require a health exception or require that that health exception include mental and emotional health. In fact, 26 states that ban abortions after a certain gestational period have an exception for life and physical health of the mother.

I get that the nuances of reading law are tricky. Lawyers spend 3 years of law school learning about how to read cases, how precedent works, and how statutory law works. That’s not to say it’s solely our domain. But you’ll find that most attorneys refrain from making absolutist statements about what the law is; Givens would benefit from that same type of humility in approaching U.S. law (or, rather, state law, since each state separately and independently regulates abortion, subject to constitutional requirements).

Moral Repugnance

About halfway through his article, Givens explains the roots of his opposition to abortion:

I am not personally opposed to abortion because of religious commitment or precept, because of some abstract principle of “the sanctity of life.” I am personally opposed because my heart and mind, my basic core humanity revolts at the thought of a living sensate human being undergoing vivisection in the womb, being vacuum evacuated, subjected to a salt bath, or, in the “late-term” procedure, having its skull pierced and brain vacuumed out.

Essentially, he finds abortion physically disgusting and, at least partly in consequence of that disgust, finds it morally repugnant. That in itself is fair: as humans we’re both rational and emotional. Moral repugnance based at least partly in physical disgust is a deeply human and deeply appropriate response. Still, where he’s grounding his argument largely in this physical disgust, it’s hard to argue with him because he’s not making a rational argument: he’s making a deeply personal argument that something disgusts him physically and morally and thus shouldn’t be legal.

Still, I want to respond, both rationally and emotionally.

The rational: to the extent that he wants to reduce the prevalence of abortion, his argument is oddly lacking in proposals for how to reduce the prevalence of abortion. In fact, his whole policy proposal seems to consist of: Make it illegal.

Why no support for, for example, free access to high-quality contraception? A Brookings study found that access to high-quality contraception reduces both unwanted pregnancies and abortions. An NCBI study found that access to high-quality contraception led to a statistically-significant reduction in abortions, repeat abortions, and teenage birth rates. And a Washington University in St. Louis study found that access to free contraception reduced abortions by 62-78% as compared to the national rate.

To the extent we want to end abortions, rather than just ban abortions, it’s worth looking at providing free contraception. Not only is it tremendously effective, but it doesn’t face the same sort of constitutional impediments that direct regulation of abortion does.

The moral disgust: you know what I consider disgusting? Unnecessary maternal death. The NCBI reports that unsafe abortion accounts for about 13% of maternal deaths. That adds up to about 47,000 women dying each year (plus roughly 5 million who suffer from temporary or permanent disability). The vast majority of these unsafe abortions occur in countries where abortion is severely restricted.

You know what else I consider morally repugnant? Racial inequality. The Institute for Women’s Policy Research reports that access to legal abortion significantly increase Black women’s educational attainment (in part because prior to Roe, Black women had less access to contraception). The Institute also reports that access to abortion has increased women’s labor force participation (and especially increased Black women’s labor force participation).

In addition to the racial inequality component, there’s a socioeconomic inequality component: 75% of abortion patients in 2014 had incomes of less than 200% of the poverty line, and nearly 50% were below the poverty line.

You know what else I find deeply troubling? The state exercising its coercive power to force women to stay pregnant for 9 months. Especially since the state has significant non-coercive tools at its disposal to reduce—significantly—the prevalence of abortion.

Is abortion disgusting? Sure. Am I a fan of abortion? No. But any weighting that ignores the costs of pregnancy and the benefits of abortion to women and to women of color isn’t doing a fair weighting. Moreover, where there are avenues for reducing abortion that don’t require coercive state power (and, while I mentioned access to contraception, how about access to health care for pregnant women? how about access to health care after birth? how about family leave policies? how about a decent social safety net to provide for women who choose to carry their babies to term?), why default first and solely to the coercive power of the state?

To the Latter-day Saints?

Although he claims to be making a Latter-day Saint defense of the unborn, his argumentation is almost entirely devoid of Latter-day Saint content. In fact, the only specific references I saw were his fairly pro forma dismissal of arguments from LDS-based thoughts on agency and his assertion that the church’s countenance of abortion in certain circumstances should be read narrowly. Nothing from scripture, nothing, in fact, from LDS church leaders.

What is the church’s official policy position on abortion? You can read the whole thing here, but a relevant excerpt (the part that Givens seems to be addressing) is this:

The Church opposes elective abortion for personal or social convenience. Members must not submit to, perform, arrange for, pay for, consent to, or encourage an abortion. The only possible exceptions are when:

* Pregnancy resulted from forcible rape or incest.

* A competent physician determines that the life or health of the mother is in serious jeopardy.

* A competent physician determines that the fetus has severe defects that will not allow the baby to survive beyond birth.

Even these exceptions do not automatically justify abortion. Abortion is a most serious matter and should be considered only after the persons responsible have consulted with their bishops and received divine confirmation through prayer.

Givens reads these exceptions as relating to agency. A woman who has been raped didn’t deliberately risk pregnancy and so shouldn’t have to face the consequences of that. A woman who deliberately had sex, by contrast, must “accept responsibility for the natural consequences of choices willfully made.”

I’m skeptical of that reading, for at least two reasons. The first is that the church’s express exceptions don’t, in fact, reflect an agency/non-agency distinction. Life of the mother and viability of the fetus have no relationship to whether a woman had consensual sex or not. And further, the church doesn’t teach that we have to bear the natural consequences of what we do. That, in fact, is the whole point of the Atonement. And of one of Pres. Monson’s favorite stories about Big Tom taking Little Jim’s licking. In fact, while we believe that exercising agency has consequences, we also believe that sometimes “the way of the wicked prosper[s].” Not every consequence necessarily has to flow directly and immediately from our actions and, thanks to the Atonement, not every consequence will flow. At the very least, though, our belief in agency and its consequences doesn’t inherently require that sex lead to babies.

Moreover, Givens doesn’t engage with the consequences of the church’s policy. Yes, the church says its exceptions aren’t automatic—abortion is still only permissible after divine confirmation. But at that point, the church has no issue with abortion.

And that lack of issue with abortion—albeit in rare and exceptional circumstances—anticipates the availability of safe and legal abortion.

In fact, the church doesn’t seem to have spent a lot of thought on abortion until Roe v. Wade. A search at the LDS General Conference Corpus shows that before the 1970s, conference speakers mentioned abortion 8 times. The mentions exploded in the 1970s, then kind of trailed off.

The Moral Imagination

In the end, Givens exhibits a tremendous lack of moral (and policy) imagination. He has decided that abortion is bad, that because it is bad, there is no way to support a woman’s right to have an abortion, and that it’s not worth pursuing other routes to reduce the prevalence of abortion. He also seems to think that the answer is so clear that he doesn’t have any obligation to accurately represent the law or the facts on the ground, and that he doesn’t need to engage in respectful dialogue with those who disagree with him

The thing is, the question isn’t black and white, as he putatively acknowledges. There is no easy answer, in spite of what Givens would have us believe. I find abortion troubling as, I believe, most people do. But I also find a world without legal abortion troubling. The solution, I believe, is not to ban or criminalize abortion, but to create a society in which abortion is virtually unnecessary because women and men can prevent unwanted pregnancies and, if those pregnancies occur, women can still access the education, employment, and other resources that they need.