The American Prospect, or whoever writes its subheadlines, considers the arguments I make in The Party of Death “scary.” Neil Sinhababu, also known as “the ethical werewolf,” deserves credit for being brave enough to tackle them. He deserves further credit for doing so without indulging in any ad hominem attacks, cheap shots, or speculations about my motives.
He focuses on the seventh chapter of the book, in which I make the basic argument for the pro-life position. As Sinhababu notes, this chapter is a small part of the book. But as he also notes, its arguments “are used to justify the evaluative judgments [made] throughout the book.” If my arguments in this chapter (and the related arguments in chapter 15, which he does not address) are incorrect, the rest of the book loses much of its force (although parts of its political analysis may remain useful in some value-neutral sense).
In The Party of Death, I argue that the central issue in the debates over abortion, lethal research on human embryos, infanticide, and the like is whether all members of the human species count as persons with a right not to be killed. Sinhababu does not try to sidestep this question by pretending that human beings at their earliest developmental stages are something other than living human organisms. Rather, he straightforwardly defends the view that not all living human organisms are persons with rights.
Before considering the substance of his critique, let me note one feature of its rhetoric. Sinhababu twice suggests that “liberals and other ordinary people” think about these issues the way he does, for example by believing that “the moral status of something depends on what mental capacities it has.” But if it is a point in his favor that “ordinary people” agree with some of his premises, then it is a point against him that very few of them agree with his policy conclusion, which is that birth ought to be the line between having a right to life and not having one. Only about ten percent of the population believes in a right to abortion that extends all the way through pregnancy. Given that about a fifth of the population classifies itself as liberal, it does not seem correct to suggest either that many “ordinary people” or even that most liberals favor a right to eighth-month abortions.
Sinhababu makes two principal arguments against the pro-life position. The first is that it treats membership in the human species as a necessary and sufficient condition for personhood and a right to life, and thus leaves hobbits, aliens, and kittens out in the cold. This line of argument supplies him with a nice closing line: “To ground moral status in biological humanity is to shrug at the enslavement of hobbits, the slaughter of kittens, and the destruction of all life beyond earth.”
Let’s take hobbits and intelligent extraterrestrial life first. Sinhababu’s argument would be valid if I indeed treated biological humanity as a necessary condition for a right to life. Instead, I treat it as a sufficient condition. I argue that any being with a rational nature has a right to life, and explicitly mention, in a footnote, that aliens could count. It is possible that I sometimes speak slightly loosely of humanity as a necessary condition for the right to life. If so, it is only because my book considers a universe in which hobbits and extraterrestrial life do not, to our knowledge, exist. For practical purposes, these cases don’t matter.
The status of hobbits or aliens would depend, as ordinary people all agree, on their capacities. So does the status of human beings. But what kind of capacity are we talking about? It cannot be that human beings (or any other beings) have value because they have the immediately exercisable capacity to perform mental functions (or to laugh, sing, love, or mourn). Plainly people who are asleep, under anaesthesia, or in reversible comas have value.
The capacity we should value is the radical capacity (that is, the basic natural capacity in root form) to perform mental functions, etc. As I write in the book, “Even human beings in the embryonic, fetal, and infant stages of development” have this capacity “because of the kind of beings they are; because they have a human, and therefore rational, nature. They have the capacity to develop themselves by a process of internal self-direction to the point at which the basic natural capacity is immediately exercisable.” (I add in a footnote: “Disease, genetic defect, accident, and violence can of course block the development of this capacity in particular human beings, but these possibilities do not call its existence in those beings into question.”) I continue, “And they have this radical capacity equally, because they are equally human beings.”
Thus not only do my arguments provide protection for Frodo Baggins’s right to life; they provide more protection for hobbits or aliens than Sinhababu’s do. Even immature or handicapped hobbits or aliens would deserve protection on my views — as, again, I mention in a footnote — while they would not on his.
As for kittens: I do think that the killing of animals can be defended under conditions that would not justify the killing of human beings. Euthanasia for pets, for example, does not raise the same concerns as it does among humans. But it does not follow from my case for the right to life that any sort of cruelty to animals is morally justified, or that the law should allow any such cruelty to be committed.
Sinhababu’s second argument concerns the continuously varying nature of mental functioning. I argue that it is an improper criterion for having a right to life because it is impossible to identify, without arbitrariness, the minimum amount one would have to have to qualify; and it is impossible to provide an account of the equality of basic human rights among people with different amounts of the quality.
But we often base rights on continuously variable mental qualities. Two-year-olds don’t have the right to vote because they lack the required rationality, maturity, and political awareness. All of these mental qualities increase on a continuous scale. Testing everyone for these qualities before letting them vote is impractical and open to abuse, so we let people vote when their age allows us to assume that they have these qualities. Determining the beginning of the right to life may be weightier than determining the beginning of the right to vote, but there’s no obvious reason to do it in a radically different way. Birth provides a clear and natural line for the inception of a right to life. It also fits into our general scheme of rights nicely, marking the point when any fetal right to life and a woman’s privacy rights over her body are disentangled.
But surely the reasonable conclusion from the comparison of the right to vote and the right to life isn’t that error in the assignment of rights is generally tolerable. It is that the right to vote isn’t as basic a human right as the right not to be deliberately killed. That is why we feel justified in restricting the right to vote for reasons having nothing to do with age or even with rationality. We might deny a right to vote to someone because, for instance, he is serving time in prison for a felony (or simply because he isn’t a citizen). For the same reason, we would consider a partly democratic society that practices slavery less just than a wholly non-democratic regime that does not.
Let me put it another way. A human being can be treated justly without being accorded a right to vote. Imagine an immigrant who, for his own reasons, resides in the United States for his entire adult life yet, again for his own reasons, never applies for citizenship. He can’t vote; yet there is no injustice. On the other hand, no one whose right to life is not honored by the state in which he resides is treated justly.
The right to vote is, of course, important, and it can be unjustly denied. When we deny the vote to a human being on the basis of their putatively inferior worth or dignity (or some dressed-up version of that basis), we are denying it unjustly. When we deny it to two-year-olds, however, we do so because they do not yet have the capacities to exercise it intelligently and responsibly. At a certain point, of course, we will have to draw a line: It could be at age 16, or at age 23. There are pros and cons all along the spectrum, and the only moral requirement is that we draw it on the basis of those pros and cons, and not on the basis of any judgment according to which some human beings have fundamental worth and dignity and others do not (or some have it in full measure and others have less of it).
The line-drawing, within the broad moral bounds established by the right to have one’s fundamental and equal dignity respected, is essentially a prudential matter. It is a prudential choice between morally acceptable but incompatible options where the common good requires that a choice one way or the other be made. (Obviously, the fact that some 16-year-olds are wiser and more responsible than some 30-year-olds is irrelevant to the question. The prudential considerations favoring a uniform rule based on age overwhelm any considerations militating in favor of, say, trying to test people to assess their maturity, wisdom, responsibility, etc.)
Sinhababu has made a good-faith effort to refute me. But his most solid arguments are directed against positions I never took, and he has weak arguments against ones I did.
– Ramesh Ponnuru is an NR senior editor and author of The Party of Death.