[Professor Pakaluk delivered questions 1-14 of this text as a speech, sponsored by the Augustine Club, at Columbia University on February 1, 1995. Michael Pakaluk is currently an Associate Professor of Philosophy at Clark University. His address: The Augustine Club: augustine@columbia.edu
N.B.: Question 19 is bracketed because the form of its statement is only provisional.]
I assume that you think that we human beings have human rights. Your position, in fact, is that among the rights a human being has is the right to control one's reproduction. Well, at what point do you think that a human being, with human rights, comes into existence? Is it at birth, or earlier?
I could ask the question more concretely of you yourself: you have human rights--did you acquire them only when you were born? Surely you must have had them earlier, since premature babies are human beings with human rights, and the only difference between, say, a baby who is born prematurely by two weeks, and one who is still in the womb two weeks before term, is that the one is inside its mother, and the other is not; and the one that is inside, if taken out, will live just as much as the one born prematurely.
Then is it at what is called "viability" that you acquired human rights, i.e. when you were capable of remaining alive, if you were taken out of your mother? Or do you think it happened when your brain waves were first detectable (at about 6 weeks after conception)?
For the moment, I'll put aside the obvious objections to these criteria; for the question I really wish to pursue is the following. Whatever answer you give-- viability, brain waves, whatever--Why don't you oppose abortion after this time? I don't mean, simply, "why don't you refrain from seeking an abortion for yourself, or for a friend, after that time". I mean, rather, "why do you do nothing to stop those human beings with human rights--as you have concede--from being killed"? It is your view that, after viability, say, the fetus is a human being with human rights, equal in dignity and importance to you and me. There are 150,000 abortions in this country each year after viability. This is, on your account, a massive violation of human rights. Why do you do nothing at all to stop this? You are pro-choice, yes, but you are pro-choice, I presume, only for abortions which are not, on your account, violations of human rights.
Do you do nothing because you do not wish to impose your views on others? But of course then I could ask of you why you ever act morally, since that will always require that you impose your views? When you act against racism, for example, you similarly impose your view on others who disagree. Is it that you are uncertain--you merely believe abortion is wrong after viability, but you have little confidence in your belief? I wonder whether you truly have little confidence in it--and, if you do, whether you are at all justified in having little confidence. And I would note, furthermore, that this "lack of confidence" of yours, and this--shall we say--paralysis that you suffer, in not doing anything about what, on your account, is a gross violation of human rights, is itself a consequence of legalized abortion, of the abortion mentality, and constitutes an argument against legal abortion--because legal abortion has clearly numbed your moral sensibility, and that of others as well.
But--returning to the line of argument-- suppose it is the case that you lack confidence in your belief. I fail to see why that should hold you back, if the other person is not more certain. And I don't think it is the case that people who seek abortions after viability, or the physicians who do them, are more confident that what they are doing is right, than you are that they are wrong. Or perhaps it isn't a matter of confidence at all, but you simply regard your view about when a human being with human rights comes into existence as somehow something "purely subjective". But then, I wonder: why isn't your view about born human beings having human rights similarly "purely subjective"? If the view that rights begin to exist at a certain time is purely subjective, then the view that they continue to exist after that time must also be purely subjective. But then it seems that you do not really believe that there are such things as human rights, and, in particular, you cannot really believe that there is such a thing as a right to privacy or a right to an abortion--and your lack of confidence, and paralysis, in opposing those who would abort human beings after viability, should, at least, be matched by a similar lack of confidence, and paralysis, in opposing those who would prevent abortion before viability.
If you are to be consistent, your confidence in working for legal abortion before the time you think a human being comes into existence, cannot be greater than your confidence in working against legal abortion after the time you think a human being comes into existence--that is, if your view that viability marks the transition from not having rights to having human rights, is anything other than a mere rationalization.
Pro-choice people argue that the lack of consensus about when life begins implies that abortion should be legal until birth. By why only until birth? Why not after birth--that is, why do we not allow infanticide? My concern is: what keeps us from legalizing infanticide? Is it only because there happens to be a consensus that infants are human beings with human rights? But what if that consensus should change? And it is not naive to suppose it might change. There have been many cultures throughout history which have condoned infanticide, just as many cultures have condoned slavery and human sacrifice. There are philosophers who have argued that there are no good reasons for favoring abortion but opposing infanticide. And reasoning like that used to support abortion has already been used in many cases to argue for infanticide of Downs Syndrome children.
Well, suppose this way of thinking did become more widespread, and a sizable section of our population began to think that it is unfortunate but necessary at times to kill newborn infants. There would no longer, then, be a consensus. So would you concede that the lack of consensus on infanticide implied that infants should not be protected from killing--that the parents should have the right to decide, that it's "their decision", not anyone else's?
If you do concede this, then I would urge that it's not clear that you have any moral principles at all--since it seems you are willing to give up your moral beliefs, if enough people disagree with you. You would be, in effect, hostage to how others think. But if you wouldn't concede this--if you deny that a lack of consensus that it is wrong to kill infants would cause you to acquiesce in legalized infanticide--then why do you concede that a lack of consensus about preborn children implies they should not be protected? To put the point another way: if you lived in the United States in the 1950s, say, when abortion was considered as abominable as infanticide is today, you presumably would have denied that the wrongness of abortion hinged upon the consensus against it. So similarly you should deny today that legalized abortion follows from a lack of consensus against it.
But in general, why does any position, rather than any other, follow from a lack of consensus? Suppose someone were to argue as follows: "There is a lack of consensus about when human life begins; therefore, abortion should be prohibited throughout pregnancy." Why is this argument any more, or less, reasonable than the argument that:"There is a lack of consensus about when human life begins; therefore, abortion should be allowed throughout pregnancy?"
If the former argument is a non sequitur, then so is the latter. It might be thought that, given a lack of consensus, the "easier" of two alternatives should be adopted, and it is easier on the woman to allow abortion than to prohibit it. But this consideration begs the question, by assuming that there is just one human being--the mother alone and not the child--with respect to whom we should judge the "ease" or "difficulty" of the two options. You might as well just argue outright, without this talk about "lack of consensus", that abortion should be legal--because only the interests of the woman need be considered. But if this is your view, then you very well cannot turn to the pro-life person and insist that it is wrongheaded for him to press for the illegalization of abortion, given a lack of consensus on the matter--because, again, you favor its legalization, given a lack of consensus, which is no more reasonable or unreasonable than favoring illegalization, given a lack of consensus.
You hold that women should be free to choose what they think is right regarding abortion: if a woman's conscience tells her that abortion is in her case permissible, then she should be free to choose to have an abortion. This position has plausibility, because it seems to show respect for the woman's conscience. But I wonder whether this is just an appearance. What do you think about cases where the woman's conscience tells her that abortion is not a good thing--because she thinks she is killing her baby--but she wants an abortion anyway. Why should these abortions be allowed?
You may object that these cases are rare, but in fact they are very common. Various polls have repeatedly shown that about 50% of Americans think that abortion is tantamount to murder, and this figure holds for women as for men; so we might expect that about half of the women seeking an abortion believe it is tantamount to murder. If you are still not convinced, and think that it would hardly be possible for a woman to seek an abortion on those terms, then you should consider the ample testimonial evidence to the contrary. For example, consider these passages taken from a book written by a pro-choice author (The Ambivalence of Abortion, by Linda Bird Francke):
(1) "At first I decided to keep the baby. I had had a prior abortion, which I hadn't told my husband about, which depressed me very much for months later....This time I couldn't help thinking it was a human being, a living being. At first my husband wanted to keep it, but as the weeks went by...he changed his mind. The new baby would interfere with everything. We want to move to the West Coast, for example. We were convinced that the abortion was the best thing rather than the right thing. If you asked me how I felt about abortion I would say I was against it. I feel very hypocritical."(pp. 140-141)
(2) "Women undergoing second-trimester abortions have cause to be disturbed. In many hospitals, for example, the fetus is expelled (the medical jargon is 'slipped') and left lying on the bed until the afterbirth is also expelled. There is a natural curiosity for the women to look at the fetus, a curiosity the nurses try to squelch. 'We tried to avoid the women seeing them,' says Norma Eidelman, who worked for a short time with second-trimester patients. 'They always wanted to know the sex, but we lied and said it was too early to tell. It was better for the women to think of the fetus as an 'it.'"(p. 53)
(3) "I really suffered from that. I was very much against abortion at the time. I thought I was killing a living thing. And it didn't help much to overhear them talking in the hospital when I had it, saying, 'Oh, it's a baby boy.'"(p. 120)
(4) "I come in tomorrow. I'm going to go through with it. I hope I feel better than I do today. I love the baby. I love my husband. I just think it would be better for him if I have the abortion. I'll get over it. I'm sure there'll be a lot of times when I'll think about it, but we got so many problems now. So many. I know I can have another baby someday. But it's this one I love now. I just love her so much .... "(p. 134)
(5) "When I see people having babies now, I envy them. I don't want to ever have another abortion. It's a very frightening thing. The injection hurt a lot. But mostly I thought about the baby when they were doing it. I thought, I'm killing another human being, but then I'd remember that it wasn't even formed yet. I had two sides going in my mind against each other."(p. 272)
In cases such as these, respect for the woman's conscience won't justify the abortion, but just the opposite: we would show respect for her conscience by opposing the abortion, just as her conscience does. And if we allow abortion in such cases, we allow people to do what they think is tantamount murder, and clearly to have large numbers of citizens commit what they believe is murder will destroy the moral fabric of our country. (This point holds whether abortion really is tantamount to murder or not: what is important is that many people think it is.) So shouldn't even someone who was "pro-choice" agree that it would be preferable to try to screen out cases of this sort, say, by asking a woman seeking an abortion to sign a statement saying that her conscience tells her there is nothing wrong with the abortion?
Of course, this is not being done now. The counselors at abortion clinics don't screen out these cases, since such their role is largely that of trying to quell any concerns a woman might have about her abortion. Clinic counselors tend to view these doubts of conscience as a nuisance. They think that the feelings of guilt are the problem--not the action which occasions the guilt. But we might even argue, from the fact that about half of the women who seek abortion think it is tantamount to murder, that abortion should be completely illegal. It hardly makes sense to keep legal a practice which tempts people so violently to override their own consciences, to their own and to society's detriment.
Pro-choice people claim that the current law about abortion in our country--or perhaps we should say the absence of law--allows everyone to follow his or her own conscience: people who are pro-choice can procure abortions, if they wish; and people who are pro-life are free not to have an abortion, if they wish. After all, there are no compulsory abortions in this country. "If you're against abortion," as the bumper sticker reads, "don't have one." But are pro-life people in fact allowed to act in accordance with their convictions? Did Roe v. Wade merely open up a space for a view that had no standing before--the view that abortion is in some circumstances permissible--or did it completely replace one view, the pro-life view, with some other view opposed to it--so that pro-life people could complain, with justice, that some alien and unjustified view has been imposed upon them?
Suppose there were a society in which it was forbidden to come to the assistance of children below the age of 7, when they were being attacked or were in danger. Suppose I lived in such a society, and I saw a 6 year old child drowning, but I couldn't act to save him, since I was prohibited by law from doing so, and I would have to spend years in jail and pay huge fines if I disobeyed.
It would obviously be false to say that, in such a society, I was free to live in accordance with my conviction that children are precious and have dignity. But similarly it is false to say that, in our society, pro-life people are free to live in accordance with their conviction that unborn children are precious and have dignity. The reason for this is that, if I believe that another human being has dignity, then that belief implies that I help him and save him from harm. But people who believe that unborn children are precious and have dignity are forbidden to act this way on their behalf. What I wish to draw your attention to in this regard is a very important sort of reasoning, which lies at the center of morality--I mean the process by which we reason from our particular case to all similar cases, and conclude that all such cases should be treated in a similar way.
For example, suppose I fall sick and spend a week in the hospital, and I notice how thoughtless and inconsiderate some people are towards me. It is the most natural thing in the world, and correct, to draw a general conclusion from this, and to decide that all sick persons ought to be treated in a certain way. Again, suppose I am a parent, and I notice how important it is that my child learn to read well--this might lead directly to my taking a more active interest in my child's school, because I see that other children are exactly like my child, and it is equally important that they, too, learn how to read. Finally, suppose I am a pregnant woman, or the husband whose wife is pregnant, and I am pro-life, and I see the dignity and preciousness of my child in the womb--so that I would resist to the death anyone who threatened to harm that child. By a process of reasoning like that in the other two cases I mentioned, I should conclude that any child in utero is equal in dignity and preciousness to my own, and that I should work to prevent the destruction of such children.
So the question I wish to pose to pro-choice people is the following, conditional question: If you were pro-life, then wouldn't it be right for you to be concerned as well for other unborn children, and not just for your own? Wouldn't this be consistent with everything else you know about morality? (After all, it would be absurd to suggest that you were in favor of "the right to choose" only for yourself, and not for people similarly situated, generally.) If you grant, then, that, if you were pro-life, you might very well try to stop abortions, say, by sidewalk counseling, or pickets, or even rescues, then you must admit that these activities are part of the pro-life view, and, if you hold, furthermore, that both pro-life and pro-choice views should be allowed, shouldn't you oppose any restrictions on these sorts of pro- life activities?
How should we regard a forced abortion of a pro-life woman's fetus? This happens, of course, in China every day. It also happens occasionally in the United States--there have been several cases reported of husbands or boyfriends who in effect force a woman to have an abortion, either by coercing her to go to the clinic (these cases are perhaps not so rare), or by attacking her directly. For example, one jealous husband, after he found out that his wife was pregnant by another man, tracked her down when she was in her 7th month, and violently reached up into her uterus and caused a fatal miscarriage. Another man beat a pregnant woman on the belly with a baseball bat to kill the unborn child. (These cases are grotesque, but what an abortionist does differs only in manner, not in end.) Should such men be prosecuted for murder?
If the law concerning abortion should be designed so that "everyone can act in accordance with one's own beliefs", then presumably just as the law lets some people procure an abortion, because their beliefs allow it, so it should let the women in these cases, if they are pro-life, bring charges of murder, because their beliefs require it. So our view ought to be that, if a man were to force a pro- life woman to have an abortion, the man should be liable to prosecution for murder. In fact, the California Supreme Court recently rule in just this way: it decided that an assault on a pregnant woman that kills her fetus, even before viability, is murder. But if this is our view, then we may ask: How can the question of what the man did--whether he committed a murder or not--depend upon how someone else besides the victim, the woman, happens to regard the action? And how can the woman's mere assessment of the status of the fetus--whether she regards it as a human being or not--change the fetus's status, from being something who can be a murder victim (if the abortion is forced), to being a mere lump of tissue (if the abortion is voluntary)?
Or, if the woman's belief that what the man did was equivalent to murder is enough reason to prosecute him for murder, then why isn't it the case that the woman who believes her abortion is murder but goes ahead with it anyway--the cases of guilty conscience we discussed before--why shouldn't such women similarly be liable to prosecution before the law? For what could possibly be the difference between her husband or boyfriend killing the child, against her will, and an abortionist killing the child, against her conscience?--But if you find these consequences objectionable, and so you wish to say, instead, that a man who forces a pro-life woman to have an abortion cannot be prosecuted for murder: then clearly your are maintaining that the law should not allow the woman to "act on her own beliefs", since she believes that her child was murdered, but she cannot prosecute for murder. What you are saying, then, is that the woman's child can have no greater status than a piece of property, even if the woman, her husband, and all her family are pro-life.
Suppose a man and woman have intercourse, she becomes pregnant, and the man, who is pro-life, thinks of the fetus as a human being, but the woman gets an abortion. Why is the abortion not tantamount to murder in this case? Why is it only the female parent's opinion which determines the status of the child?
Both man and woman are parents, and the woman carries the child. Yet surely to be a parent, a generator of the fetus, a procreator, is to have a closer relationship to the fetus than merely to contain the child physically. And we can raise the question, again, of whether in fact such a husband is allowed to live out his pro-life convictions in our society. It is not even clear that the husband is "free not to have an abortion", as the bumper sticker alleges, if his wife wants to have one. What if his wife is set on aborting every one of his children?
You might say, in response, that it's the husbands fault if she is, because he should have been careful not to marry anyone who would do such a thing. But suppose his wife didn't have those beliefs when they married, but later changed her mind. You might say, then, that he should simply divorce her, if he does not like what she is doing. But why is the burden only on him? Why can't we say, similarly,to the wife, that her husband's opinion ought to have equal importance with her own, so that if they can't both agree to procure an abortion, then she can't get one-- and if she doesn't like that, then she should not have married him, or should get a divorce?
But suppose--to continue an earlier line of thought-- that the reason the woman has sole right to decide to have an abortion is that the status of the fetus somehow depends upon how she chooses to regard it: thus, the fetus is not a child until the mother decides that it is, say, at some point later in pregnancy. But then a consequence of this is that the man, through having intercourse with the woman, does not conceive a child. Rather, he conceives only a fetus, and the fetus at some later point becomes a child, only because of the woman's deciding that it is. But then the man's role in intercourse is not a cause of a child. He brought into existence only a fetus, and it was the woman's decision to "continue the pregnancy through term" that made it a child.
But if so, it is not clear why the man should have any responsibility for the child. How could the woman bring a claim for paternity support against him? After all, he could rightly reply: "You decided to regard the fetus as a child; so the child is your responsibility." In short, here is the dilemma: It is often claimed that the right to an abortion is a part of the right to control one's own reproductive life. But then it seems that the decision to abort should be made jointly, by both the father and mother. If we say that the mother alone can decide to have an abortion, then we ought equally to grant that the husband alone can decide that the pregnancy should end in abortion -- at least he should be able to decide that he "aborts" the child, in the sense that he would have chosen abortion (if the woman had agreed), and so he has no responsibility to care for the child.
So it seems that either we grant the father an equal role in the abortion decision, or we must conclude that fathers cannot be held responsible for their offspring. If total responsibility for abortion rests with the mother, then total responsibility for birth should rest with her also. (This question points to the connection between the practice of abortion and paternal irresponsibility.)
Suppose a woman who wanted an abortion were first to observe her unborn child through ultrasound technology. In such images, the hands and feet of the child are typically discernible, and even within the first trimester, it is common to see the unborn child sucking his or her thumb. I ask the pro-choice person: why aren't such images shown to woman, as part of informed consent preceding abortion?
You might respond that the images are not relevant, but how do you know whether they are relevant to her or not? I think, rather, your view is that such images are too relevant, that very few women who saw them would choose to have an abortion. If this is your view, it is in fact confirmed by experimental data: studies have shown that a kind of rudimentary mother-infant bonding takes place when pregnant women are seen ultrasound pictures and listen to their unborn child's heartbeat. And this is the reason why ultrasound facilities have two sets of explanations, one for women who are seeking abortions, another for women who are carrying the pregnancy to term.
Now, would you oppose a law requiring that a pregnant woman see ultrasound images of her fetus before she gets an abortion? Or let's make the law weaker: it merely requires that she be given the option of seeing those images. If you oppose such laws, then how are you pro-choice rather than pro-abortion? Again, is it because you think that many women would be swayed from having an abortion? But then either you are imposing your views on them (because you have decided in advance what sorts of considerations they should take to be important), or you are pro-abortion rather than pro-choice (because you think that the most important thing is that the women get abortions, not that they choose to get them on the proper ground).
And why isn't your position manipulative and deceitful? In general it is deceitful to withhold information from someone, if you know that, if you released it, the other person would act very differently. For example, if I am a physician and I know that a certain operation has some chance of causing paralysis, and I know that my patient may very well not agree to have the operation, if he knows this, and I don't tell him, then I have deceived and manipulated him. And this seems to be how pro-choice people act, who are opposed to informed consent.
If you think abortion should be allowed, can you consistently maintain that there any human rights at all? Human rights are presumably rights that belong to us in virtue of our being human--that is why they are called "human" rights. They are prior to decision or convention, precisely because they depend upon our nature. We have them simply because we are human beings, not because of an acquired characteristic or accomplishment. But if the fetus has no rights, then there are no human rights, because the fetus is clearly a human being, and if there were rights that followed from simply being human, the fetus would have them. If there are no human rights, then of course the so-called "right to privacy" or "right to an abortion" is also not a human right.
So you cannot consistently deny the right to life of the fetus, and assert the right to privacy of the mother. Talk of brute power, or domination, or "getting your way", if you wish, but don't misuse the language of human rights, which you in practice reject. In fact we need to ask the more fundamental question: What distinguishes a claim of expediency or self-interest from a claim that one has a right? You claim that there is a right to an abortion, but why should anyone believe this? Why aren't you just saying: "I want this, so you should give it to me?" (And it is a curious fact that the idea that there is a right to an abortion seemed to arise at just the same time as the sexual revolution. Before 1970, no one had ever asserted that there was a right to an abortion. From the point of view of history, it might appear that this rights claim has more to do with the people conceiving a child in circumstances in which a child would be unwanted--and abortion happens to be an effective remedy. But this is far from establishing any "right".)
But what is a right? Exactly how many rights are there? Why is the right to an abortion one of these rights? --Can you give an argument for your view, or is it mere assertion?-- How can there be a human right that only women have, but not men? Are there any other rights that only one sex possesses? And if abortion is a "necessary evil", as it seems almost everybody grants, and hence in some sense wrong, then--to raise a question that Lincoln asked Douglas about slavery-- how can there be a right to do a wrong? Are there any other rights that we know of that have this feature?
But suppose we say that the so-called "right to an abortion" is not a human right,prior to convention or human decision. It is therefore a consequence of human law: we could even say that the Supreme Court created this right, in 1973. But if that is the case, then we cannot argue that abortion should remain legal because there is a right to an abortion. That would be an entirely empty argument, equivalent to saying that "abortion should be legal because abortion is legal."
Does the following seem to you a reasonable statement of the pro-choice view?:
If each person will only agree to mind his own business, and leave his neighbors alone, there will be peace forever between us... I am now speaking of rights under the constitution, and not of moral or religious rights...It is for women to decide ... the moral and religious right of the abortion question for themselves within their own limits.... I repeat that the principle is the right of each woman to decide this abortion question for herself, to have an abortion or not, as she chooses, and it does not become a pro-lifer, or anybody else, to tell the her she has no conscience, that she is living in a state of iniquity... We have enough objects of charity at home, and it is our duty to take care of our own poor, and our own suffering, before we go abroad to intermeddle with other people's business.
I arrived at that quotation by taking one of Stephen Douglas's defenses of slavery, and substituting "abortion" for "slavery"; "woman" for "state"; and "a pro-lifer" for "Mr. Lincoln."
I've done the same with the following response from Lincoln:
The doctrine of freedom of choice is right--absolutely and eternally right--but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a fetus is not or is a human being. If it is not a human being, why in that case, she who is a human being may, as a matter of freedom of choice, do just as she pleases with it. But if the fetus is a human being, is it not to that extent, a total destruction of freedom of choice, to say that it too shall not have freedom of choice itself? ... If the fetus is a human being, why then my ancient faith teaches me that 'all men are created equal;' and that there can be no moral right in connection with one human being's aborting another.
Doesn't the similarity between your defense of abortion, and Douglas' defense of slavery, bother you in any way? Does it raise in your mind any suspicions at all that you might just be on the wrong side?
There is another argument against abortion, analogous to an argument of Lincoln. Lincoln said, famously, that "as I would not be a slave; so I would not be a master". He also remarked that, although he had heard many people defend slavery as a good thing, he had never yet met a man who wanted to become a slave himself. So we can ask: Does anyone wish that his mother had chosen abortion for him? And, if not, then how can he consistently wish that any mother choose abortion for anyone else?
Developing the analogy with slavery, we might wonder how abortion is at all compatible with the idea that all human beings are equal. After all, it is inconsistent with equality that one person have his fundamental rights conferred upon him by someone else. Indeed, the phrase "conferring fundamental rights" has the appearance of an oxymoron. Consider how this worked in practice in the antebellum United States: when a white man freed a black slave, the black man would be "free" and enjoy "rights", yet even so, he would not, and he could not, be equal to the white man, for his freedom was originally granted to him by the white man. The reason for this is that, when one person grants rights to another, the former is a superior, the latter is an inferior, and they remain so, in spite of their both having rights, and even if this granting of rights is legally irrevocable.
Similarly, as we saw, in our current practice of legal abortion, the unborn child has rights only if they are granted by the mother. For if the mother wishes to have an abortion, then the child has no rights, and its death is considered inconsequential; but if the mother wishes to continue her pregnancy, then an attack on the child is considered unlawful and even murderous. Hence the child--and presumably also the adult who grows from the child--has rights only because they have been originally granted by the mother. But this, as we have seen, is incompatible with the fundamental equality of all human beings.
As a consequence, even though it may not be consciously recognized or understood, it must be practically impossible that people who are pro-choice regard the following generation as equal in dignity and worth to them. And I would suggest that many of the evident problems of the post-Roe v. Wade generations of children arise from this.
Developing the analogy with slavery even more, we can ask: Why isn't legal abortion outright discrimination? I think "discrimination" occurs in its clearest form when someone bases a decision about another person's rights, privileges, or position, on some arbitrary and irrelevant feature of that other person. In its clearest form, perhaps, discrimination is practiced by one class of human beings against another, and the class that practices it benefits from it. For instance, if white persons, for their own advantage, treat blacks differently from whites, and deny them human rights, privileges, or positions, because of their black skin color, they are practicing discrimination.
But if we look at legal abortion objectively, doesn't it satisfy this description? By legal abortion, one class of human beings--born human beings--deny human rights and the protection of the law to another class of human beings--unborn children--because of a feature inessential to our humanity, viz. whether one is living inside or outside one's mother's womb. The difference between being unborn and being born seems just as accidental to a human being as the difference between having white and having black skin--as does the criterion of viability, which is arbitrary, external to the unborn child, and a function of the sort of medical technology available in the mother's community. (Abortion is thought to be justifiable before viability, because up to that time the fetus is completely dependent upon the mother. But why should someone's being completely dependent upon another imply that he or she can be killed? Suppose a mother and her newborn baby are stranded on a desert island. The baby is completely dependent upon her. How does it follow that the mother has a right to kill the baby?)
Suppose we bracket for the moment the idea that the unborn child is a human being with human rights. Let's suppose that these things are uncertain, which in fact they are not. Even so: wouldn't legal abortion be contrary to responsible principles of decision under uncertainty? If it were true that we "don't know when human life begins," it would follow, of course, that we don't know that the fetus is not a living human being; that is, we don't know that abortion is not morally equivalent to murder. But isn't that precisely what we ought to know, before allowing abortion?
An analogy: there is a discarded refrigerator box in my yard; and I wish to practice shooting with a my new archery equipment. Before shooting arrows at the box, I am both morally and legally obliged to make sure that there is no child playing in the box, and without this certainty, I shouldn't proceed. The reason is that it is wrong even to do something which might be tantamount to killing another. But pro-choice people admit that abortion might be tantamount to killing another--because they admit that we don't know that life doesn't begin before abortions take place. So then, until you reach greater clarity, shouldn't you agree that it is morally wrong, should also be legally wrong?
But it is important that we not overstate our degree of ignorance. We know that the thing in the womb is alive: it has a heart beat from 2 weeks after conception; it has detectable brain waves from 6 weeks--and abortions don't take place before 6 weeks. So the thing in the womb is, at least, a living animal. And it might very well, from an early period, be capable of feeling pain--certainly it moves and responds to stimuli, and movement and perception, it might be argued, must be couple with some rudimentary ability to feel pleasure and pain. So then, I assume that you think that people ought to be compassionate towards animals. Perhaps you are even a vegetarian and opposed to killing animals on principle. How, then, can you consistently support legal abortion?
In every abortion the fetus is cut into pieces, ripped or torn apart, or poisoned. No one would want to treat a small kitten or puppy in that manner, nor does the law allow to do so, so why should we allow anyone to treat immature human beings in that way? Imagine that, instead of paying money for an abortion, the price was to take a newly born puppy, the size of a peanut, and put it in a meat grinder. This an action quite comparable to what takes place in an abortion. How many people would pay that price? Then is it only the hidden character of abortion that makes it seem acceptable?
Why is an abortion traumatic, but an appendectomy is not? If the fetus really is just a clump of tissue, why should there be any fuss about abortion? Indeed, if an abortion were in reality just like an appendectomy, how would it be possible for pro-life people to get others agitated about it? The very fact that there is a dispute at all about abortion seems to show that the pro-life view is correct and that abortions should not be performed.
Why is it that doctors are allowed to do abortions? Even if abortions should be legal, shouldn't they be performed by some other sort of agent? Just as we do not allow doctors to administer injections for capital punishment, shouldn't we also bar doctors from doing abortions? The reason for this is that doctors should not engage in actions that are contrary to the aims of the practice of medicine, and these are to heal and relive pain. But someone who performs an abortion does neither of these things: he kills a living being; creates pain; and acts violently against the natural process of pregnancy.
Suppose a genetic marker for homosexuality is found, and a test is devised for this, and couples begin to abort fetuses with this marker. Should this practice be made illegal? If so, then why not sex-selection abortions also? And why not abortions for handicaps? But if some abortions are wrong and should be illegal, this implies that abortion is not in every case to be allowed simply because it was decided upon by the mother. But then aren't there also other reasons for abortion that are clearly unacceptable?
Suppose the Supreme Court had decided in Roe v. Wade that the Constitution states that abortion must be illegal, that any law which allowed abortion was unconstitutional. What would your reaction have been? But the constitutional basis for a decision of that sort would have been just as strong as the constitutional basis for the actual holding of Roe., that any law which restricts or prohibits abortion is unconstitutional.
Suppose that, in decided some case, the Supreme Court decides to dispense with argument and legal reasoning and instead rolls dice to decide whether a laws is unconstitutional. Would its decision in that case have had any authority? But what if the Court doesn't role dice but also gives no constitutional reasons for its conclusion? In fact it gave no reasons in Roe v. Wade: the substance of the decision can be summed up in the bald assertions: the right to privacy contains the right to an abortion; the state has no legitimate interest in fetal life until viability.
But why does such a decision have authority? How does such a decision count as an instance of constitutional government-- that is, government in accordance with some previously agreed upon rules for ordering public life? And why does the mere authority of the Supreme Court have any weight? Pro-choice people are concerned that the views of a particular religion not be imposed on the country as a whole, even through legislation. Why is this? Why does this seem to us to be incompatible with our form of government.
The reason is that such legislation would be based solely on religious authority, and therefore it would be arbitrary, to someone who was not a member of that religion, and we could not reasonably expect him to consent to it. For example, if the Pope were to rule that Catholics must stop eating meat on Fridays, and Catholics who were in the majority in a certain city passed a law that meat could not be bought, sold, or consumed on Fridays, this law would be arbitrary, to someone who did not accept Papal authority, and we could not reasonably expect such a person to consent to it.
But why doesn't an arbitrary decision by the Supreme Court have the same character. What is the difference, if the authority is religious or secular? --The important thing is that, in both cases, the decision is arbitrary. To this you might object that all Americans do and should accept the authority of the Supreme Court to decide constitutional matters. But the proper reply to this is that the Court must give reasons in the exercise of its authority, so that it is clear that the its decisions are based in the constitution, and not in the opinions of members of the court. Certainly the constitution does not give the Supreme Court the authority to decide constitutional matters apart from any recognizable appeal to the Constitution.]
Don't your views on abortion depend upon your religious view? But then wouldn't the separation of church and state require that you not try to make others live by your religion?
Opposition to abortion need not be based on religious views. The most fundamental reason why abortion is wrong is that it is contrary to the principle of the natural equality of all human beings. This principle is not religious; in fact, it lies at the foundation of our form of government.
This point may be made clearer if we make the following distinctions. A belief may be called religious for one of three reasons:
Clearly the pro-life view is "religious" in the first sense for many people. But this is obviously a metaphorical sense of the word "religious", and many political and moral views are "religious" in this sense. It would be absurd to object to a view simply because it was passionately held.
The pro-life view is not essentially religious in the second sense. Of course it is possible to state and defend the pro-life view using religious terms, so that it seems as though the view necessarily has religious content, e.g. someone might argue that all of us are children of God, or made in the image of God, or the property of God, or that life is a gift of God, so that as a consequence abortion is very wrong. But the pro-life view can be more than adequately stated using moral principles that are generally accepted and which even seem to be fundamental in a free and democratic society. The pro-life view may instructively be compared with the civil rights movement in this respect: many of the leaders of the civil rights movement were Christian ministers who argued against segregation and discrimination on religious grounds. Nevertheless, the reforms they were urging could be defended also on non-religious grounds. In general, religious people understand justice religiously; non-religiously people understand it non-religiously. But what counts as justice is the same for both.
It follows that the pro-life view is not religious in the third sense: to see that abortion is wrong, it is sufficient to use ordinary moral and political reasoning; there is no need to appeal to special sources of religious insight and revelation, such as the Bible. True enough, the Bible does teach (through what it implies) that abortion is wrong; likewise it teaches that theft is wrong. And there are undoubtedly some people who don't steal or seek abortions only because the Bible teaches this. Yet this fact is irrelevant to the sort of question which must be considered in a debate about public policy, viz. whether theft is unjust, whether abortion is unjust . Suppose we adopted this principle: if the Bible teaches that X is wrong, then we cannot outlaw X, for then we would be imposing a religious view on society. It would follow, absurdly, that we couldn't outlaw murder, theft, perjury, assault, and rape, since the Bible teaches that all of these are wrong. But what holds in the case of these other injustices holds also in the case of abortion. The view that abortion is unjust cannot be dismissed as "a religious view" simply because the Bible and Christian teaching hold that abortion is wrong.
But religions differ on abortion. Some religions actually would mandate that a woman have an abortion in certain circumstances, e.g. some rabbis think that a woman is obliged to have an abortion if her life is at stake. You would be denying religious freedom to people of those religions if abortion were illegal. If pro-life legislation went into effect, wouldn't ministers and rabbis would be sent to jail for their views on abortion?
Even religious practices can be outlawed if they bring about serious harm to others. For example, there have throughout history been many religions which have mandated human and especially child-sacrifice: an Aztec priest was actually required to sacrifice a human being once a day. But this practice would be illegal, and should be illegal in our country. Not all religious practices can be tolerated: those that involve serious injustice must be made illegal.
If abortion is taking the life of a human being, then it is a grave injustice, and those religions (and in fact they are very few in number) which actually mandate abortion in some circumstances would have to be limited by the law in that respect.
In any case it should be noted that there are dozens of priests and ministers who are in jail right now because of their views on abortion. They believe that their religion requires them to act in non-violent ways to hinder the practice of abortion. The law currently decides against them and sentences them to jail. It seems that, unfortunately, disagreement by religious people over abortion is deep and fundamental, so that however the law is decided, some sincere persons will end up going to jail. But it is mere self-deception to think that current laws avoid this consequence.
Isn't it ludicrous to say that a newly fertilized egg is a person, equal in dignity and importance to you and me?
Note first of all that this is not a reasoned objection but rather something like an exclamation. No doubt some people find this idea ludicrous; but others evidently do not. From these obvious facts we cannot conclude either that the fertilized egg is a person or that it is not.
In any case, the pro-life position is more accurately expressed as the view that a fertilized egg is a human being, and that that--namely, its sharing our nature--is what gives even a fertilized egg a moral significance and indeed a certain human dignity. If by "person" you mean simply a "human being," then of course the fertilized egg is indeed a "person"--this is not ludicrous at all. If, however, by "person" you mean an actually thinking and self-aware being, then of course a fertilized egg is not a person. But then neither is a newborn baby a person in this sense. And it is clear that our rights and dignity do not depend upon our being "persons" in that sense.
But that a "fertilized egg" is "one of us"--is a part of the human community--needs to be approached from the first-person case. You yourself were once an unborn child, before that an embryo, and before that a fertilized egg. If something had been done to damage that "fertilized egg", then something would have been done to damage you. For example, an alteration bringing about a birth defect would have brought about a birth defect in you.
Next approach the question from the point of view of a mother. Suppose you are a mother looking upon a newborn baby. You reflect on how that baby was moments ago living within your womb. You reflect on how you were concerned early on in pregnancy with what you ate, since you were aware that most birth defects arise early on in development. Your thinking that everything went well for the embryo is just your thinking about the baby before you.
In fact it is not impossible, nor even difficult, to come to regard even a very immature human being, an embryo or "fertilized egg," as having dignity and great significance. Of course we know that some people consider it ludicrous to regard a fertilized egg as a human being. But the real question here is: Must it be ludicrous so to regard it? Is it possible for each of us to come to regard a human embryo as part of the human community? Is this view of things available to all of us? And I believe that, upon serious reflection, it is clear that this is possible for us, that this viewpoint is available to us.
If a fertilized egg is a person, and killing a fertilized egg is outlawed, then some forms of birth control will have to be outlawed-- the IUD and some forms of the pill--because these work by killing the fertilized egg. Also, scientific research on human embryos would have to stop."
The argument under consideration is simply this: suppose some method of birth control works by somehow destroying the early embryo. Wouldn't this method have to be outlawed, if abortions are? And how could this be right?
But why should we think that all forms of birth control have to be legal, whatever their nature and however they work? Why should this be a fixed point in the debate? What's so objectionable about ruling out some forms of "birth control," if they are in fact abortifacient? One might just as well argue: "abortion is used by many women as a form of birth control; so if abortions are illegal, then a form of birth-control will have to be made illegal, which can't be the case."
Again, why should we think that all forms of research have to be legal? There are of course tight safeguards regarding research on human subjects. What's absurd about extending this kind of regulation even to experiments on immature human subjects? Note also that there are very few experiments on human embryos which couldn't be carried out in some other and essentially equivalent way without employing human embryos at all.
If the pro-lifers have their way, then won't we end up living in a totalitarian state, with Pregnancy Police checking up on suspiciously missed periods, just as they did in Romania when abortion was outlawed?
For the most part, people already act as though the unborn child is a human being. Generally, if a woman decides to "have her baby", she speaks of the child in her womb as "my baby"; she tries to eat well; she saves the ultrasound picture of her child and shows it to friends; and so on. Indeed, it is natural and even easy to regard the child in the womb as a member of the human community. The one exception to this general practice is abortion, in which the unborn child is treated as a non-entity and a mistake: the fact of its existence is denied, as though it could be taken back or revoked.
Pro-lifers simply call attention to this self-deception, this inconsistency, and urge that even unborn children who are unwanted and slated for destruction be regarded as having the same intrinsic dignity and value as the unwanted child. Thus, it is not burdensome to regard the unborn child as an equal human being; our society would to a large extent already have achieved this simply by bringing an end to abortion. Pro-life legislation should be conceived of as the generalization, to society as a whole, of a way of regarding the unborn that is already practiced by those who are pro-life. And this way of life is not burdensome.
The objection that pro-life legislation would be totalitarian fails to take into account that the pro-life movement does not aim merely to pass laws; rather, it is a movement of reform which aims to change the mores and culture of our society. In order to evaluate correctly the character of pro-life laws, it is necessary to imagine them as adopted by a society in which the majority of persons have freely adopted pro-life mores. For such a society, pro-life laws would reflect their ideals of the human community and would not be totalitarian.
In any case, it should be noted, out of fairness, that any moral ideal whatsoever could conceivably give rise either to reasonable and liberal legislation or to bizarre, totalitarian legislation. It is not a fair objection against a movement based on an ideal, that its aims could be contorted into a totalitarian cast. For example, concern for the environment is a praiseworthy ideal. There are liberal laws that might reflect this concern, e.g. a mandatory recycling program. Likewise there are laws of a totalitarian character which might be devised to further this ideal, e.g. "litter police", who invade your house and search for non-recyclable containers; or "light bulb police," who conduct examinations to be sure you never leave light bulbs burning unnecessarily. Of course such laws are ludicrous, and it would be frivolous to object to the environmental movement, on the ground that environmentalism must lead to these sorts of totalitarian laws. Similarly, laws implementing "pregnancy police" are ludicrous, and it is frivolous and unfair to object to the pro-life movement, on the ground that its ideals must lead to totalitarian laws.
I think we can all agree that totalitarianism is bad; pro-lifers hate totalitarianism as much as anyone else.
Aren't pro-lifers inconsistent when they say that abortion is tantamount to murder, but then shrink from advocating the prosecution and punishment of the millions of women who have gotten abortions?
This is not necessarily inconsistent. There are various ways in which the two views alluded to might be held consistently:
Isn't the pro-life view sectarian? It is a narrow, conservative view, that can only be attractive to members of the religious right.
Strictly, a viewpoint is conservative if it seeks to preserve the status quo . In this literal sense, it is the "pro-choice" view, of course, that is conservative, and the pro-life view is, rather, progressive. The "pro-choice" position wants to preserve business as usual, but the pro-life view aims at a far-reaching reform of the ideals and policies of our country.
The term "conservative" could also mean a certain view of the nature and limits of government--that less government is generally better and that people should be "left alone" as much as possible. This view, in its extreme form, is often called "libertarianism", and when applied to economic matters, it is strenuously resisted by those who call themselves "liberals." Yet, curiously, the "pro-choice" view is conservative in this sense: it is essentially a libertarian view, since it urges that pregnant women should just be left alone to do what they wish, free from any government interference, regardless of the nature and character of the act of abortion.
Once again, a view may be called "liberal" rather than "conservative" if it is rooted in principles and ideals typical of the liberal political tradition. That tradition begins with late medieval speculation about contract theory and is articulated in modern times by J. Locke and then (though more controversially) J.S. Mill. Liberalism in this sense is egalitarian and benevolent . Its central principle is the natural equality of all human beings, and it is marked by the expansion (rather than restriction) of the scope of the moral community. Without doubt, the pro-life view is "liberal" in this sense, and the "pro-choice" view is illiberal. The pro-life view is grounded on the idea that it is the humanity of the unborn child which makes him or her the equal of anyone else in society, i.e. it forcefully asserts the natural equality of all human beings. Furthermore, the pro-life view aims to extend the scope of moral concern to children before they are born, whereas the "pro-choice" view is caught up with drawing lines that exclude some human beings from moral consideration.
Well, then, aren't pro-life people inconsistent, and not really pro-life, because although they oppose abortion, they don't oppose capital punishment or the killing of animals?
It is true that superficially, executing a criminal, slaughtering an animal, and performing an abortion seem to be of a piece. Each action is an act of destruction; each is an act of harm; each involves killing a living thing. The question of consistency would therefore seem to be equally pressing for someone who opposes capital punishment, or who opposes killing animals, but who is not similarly opposed to abortion.
If it is wrong to kill a guilty murderer, isn't it wrong to kill an innocent and vulnerable developing human being? If the murderer should be given another chance, shouldn't the unborn child? If the murderer's life is worth living and not hopeless, isn't the unborn child's also, no matter how desperate or difficult his or her circumstances may appear? Likewise, if it is wrong to kill an animal, isn't it wrong to kill the fetus, which is certainly an animal? If convenience, comfort, or even serious self interest do not justify slaughtering an animal, how can they ever justify an abortion? Clearly it is inconsistent to be opposed to capital punishment or animal killing, and yet to favor the "right to choose."
But a pro-lifer who favors capital punishment, does not recognize animal rights, and opposes abortion is not in the same way inconsistent. For this combination of views follows consistently from the adoption of the principle that "it is always wrong to take the life of an innocent human being." Because it is wrong to take the life of an innocent human being, abortion is wrong, since abortion involves the destruction of an innocent human being. Because a criminal convicted of a capital crime is not innocent, it is not always wrong to take his or her life through capital punishment. Because an animal is not a human being, it is not always wrong to take the life of an animal. This is a perfectly consistent set of views, which all can be accounted for given the stated principle.
Why would it be wrong to kill human beings but not animals? The reason has to do with equality: a killing is not an act of equality -- the killer is superior, the killed is inferior, because the life of the killed is controlled by and indeed terminated by the killer. Thus killing is incompatible with human equality and therefore unjust. Human beings are in fact equal; killing is incompatible with this equality. But human beings and animals are not equal. Although human beings and animals are alike in sentience, i.e. they can both feel pleasure and pain, human beings are superior in that they have superior powers of knowledge and desire, in particular, they have the ability to reason and the ability to aim at the good of another. So it is not necessary for human beings to treat animals as equals; in fact, it is wrong for them to do so, since they are not equals.
The distinction between human beings and animals is important for our purposes because it makes it clear that human beings are set apart by their capacities and potential. A human being is a thing which has the capacity to think, which has the capacity to aim at the complete good of another. Our value as human beings lies in our potential, not in our achievements. And this is why it is appropriate to think of the unborn child as having value and in fact as being the equal of any human being. For human equality is an equality in capability of reasoning, and the unborn child has this capability. True enough, this capability is not at all realized--but then, neither is it realized in the case of a newborn baby. A newborn baby has no distinctive human abilities which the unborn child does not have.
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