As the question of abortion moves to state legislatures, it’s worth addressing some common arguments against protecting unborn children under the law.
As the question of abortion moves to state legislatures, it’s worth addressing some common arguments against protecting unborn children under the law.
A fter Dobbs v. Jackson, the legal question of abortion now moves to state legislatures. Here they will face a jurisprudential question — that is, a moral question about what we as a political community should do. What does justice require of us as a political community in regard to procured abortion?
This question, of course, depends on what abortion is, and more particularly on whether abortion kills a human person. If human embryos or fetuses are human persons, then justice requires that the state treat these human beings in the same way it treats other human beings, including protecting them from being deliberately killed. (Dobbs did not directly address the issue of whether human embryos and fetuses in fact are human persons. It addressed only Roe’s claim that a fundamental right to abortion is implicit in the right to privacy or in the Constitution. It left to legislators the question of whether fetal life is innocent human life, or the life of a person.)
Of course, situations can occur in which the interests of the unborn child conflict with the interests of other people. Neither the Dobbs case nor any traditional state laws against abortion (including those now coming back into force) deny that, and I discuss some points about this below.
Are human embryos and fetuses human persons possessing basic rights? The question can be divided into two parts — are they human organisms, and, if so, are they persons with basic rights?
Well, what kind of evidence indicates that other small human beings — say, a six-week-old baby — are human organisms? A human infant does not yet have the types of attributes or actions — self-consciousness or making free choices — that seem to distinguish humans from other animals, but it’s obvious that they are human organisms.
This is because it’s obvious that the human infant is both a distinct living being — for she performs various actions directed to her own distinct survival and flourishing, and a whole human individual — unlike, say, mere human tissue or human cells — because she is growing in a human manner, actively developing herself to the mature stage of a human organism. And so no one doubts that an infant is a distinct human individual, albeit at an immature stage.
But these same basic facts are equally true of the human embryo or fetus. We can consider a few facts of reproduction to see this. At fertilization a sperm (that is, a male sex cell) joins with an ovum (a female sex cell); each of these ceases to be, and their constituents enter into the makeup of a new and distinct organism — initially, a one-celled organism — generated by their union.
This new organism, the embryo, now residing in the ampulla of her mother’s fallopian tube, is distinct from any cell or part of the mother and from any cell or part of the father. For (much like the six-week-old infant) she acts independently, developing herself in accord with her own distinct genetic and epigenetic program, growing in her own direction, toward her own survival and maturation. The embryo’s development is very rapid in the first several weeks. For example, as early as eight or ten weeks of gestation, she (now called a fetus) has a fully formed beating heart, a complete brain (though not all of its synaptic connections are complete, nor will they be until sometime after the child is born) and a recognizably human form. She cries, and even sucks her thumb.
Second, this singular organism is obviously human: She has the genetic makeup characteristic of humans, is a product of humans, and develops along a human trajectory.
And third — and perhaps the most important point so far — the human embryo is a whole human being, not functionally a part, such as human tissues or human cells are. For, by a continuous process of internally directed growth, this new being actively develops herself toward the mature stage of a human being. There is no stage after fertilization at which there occurs a fundamental change in the developmental trajectory. What this shows is that at fertilization a whole, albeit immature, human organism comes to be. This new human being, provided she has a suitable environment and nutrition, will actively develop herself through the fetal stage and then through the infant stage, the toddler stage, and on to adulthood, the same being at every stage.
So, the facts that show that a six-week-old human infant is a human being are all of them just as true of the human embryo or fetus: She is a distinct, whole, though immature human organism, the same kind of being as you or me, only at an earlier stage of development. So, as is attested by virtually every embryology or developmental-biology textbook, the human embryo or fetus is a human organism, and the same human organism that will later crawl, then walk, then talk, and so on.
However, some argue that, although the human embryo or fetus is a human being, he or she is not a person and that only persons have basic rights. Some who have proposed this argument hold that, while the human organism comes to be at conception (fertilization), the person — you, I, he, she — comes to be at some later time. In other words, on this view, the human organism (which comes to be at conception) is one thing, while the human person, the “I” or “he” or “she” (which comes to be at some time later) is another. On this view, you and I somehow have or possess our bodies or organisms, we aren’t organisms.
This view is mistaken. We are not conscious centers that possess or reside in bodies. Rather, we are bodily beings — organisms of a specific kind (sentient and rational). When I write a sentence on a piece of paper, expressing my thoughts, it must be the same agent, the same “I”, that thinks (a self-conscious act) and that grasps and guides (a bodily act) the pencil. The “I” that is conscious is the same being, the same agent, as the “I” that is bodily. So what I am is a complex entity that is both self-conscious (refers to himself as “I”) and bodily at the same time, not a self-conscious subject inhabiting a body. Since what I am is a particular type of organism, then I came to be when this organism — the organism I am — came to be. Thus, it makes no sense to say that this human organism came to be at one time but that I, the person, came to be at a later time. Just as you and I once were adolescents, and before that toddlers, and before that infants, so you and I once were fetuses and, before that, embryos.
Still, someone might object that, even though you and I once were embryos or fetuses, we were not valuable as subjects of rights at that time but that we became subjects of rights only at some later time. On this view, you and I did come to be in our mother’s wombs, but we did not acquire basic rights until much later. On this view, we are subjects of rights not in virtue of what we are but in virtue of some additional attribute (for example, self-consciousness, or an immediately exercisable capacity for that).
There are several problems with this position. I will mention two. First, if it were correct, then it would follow that human infants are not subjects of rights, for infants do not yet have self-consciousness or the immediately exercisable capacity for that. If this view were correct, it would be morally permissible to kill infants, subject to parental approval. Of course, some philosophers (such as Michael Tooley and Peter Singer) do bite the bullet here and say that intentionally killing infants can be, subject to parental approval, morally right. But most people still see that infanticide is unjust, and a position that logically leads to it must be mistaken.
The second problem is that, if this view were correct, then it would be hard to see why it was wrong to kill a human being who is in a coma. A human being may be in a coma for several weeks. During that time he is very much like an embryo or fetus. He lacks the immediately exercisable capacity for self-conscious acts, or for any type of higher mental acts. The clearest reason why it is wrong to kill a human being in a coma is that he is the same kind of being as you and me. He is an individual possessing a human nature — a nature that orients him to having self-consciousness and shaping his life by deliberate choices, though it will take him some time and assistance to actualize his inherent potential.
But this same point is true of the unborn human being. Thus, just as it would be wrong to kill me if I were in a coma, though lacking the immediately exercisable capacity for self-consciousness, reasoning, and so on, so it is unjust to kill unborn human beings, because they are human beings, the same kind of being as you or me. Since you and I are valuable as subjects of rights by virtue of what we are (human beings), and what we are now came to be in our mothers’ wombs, it follows that you and I were subjects of rights in our mothers’ wombs. And the same is true for every human embryo or fetus.
So there are two persons whose interests must be considered in abortion cases: the woman’s, but also those of the unborn human being. Even so, some argue that the mother’s interests must always prevail over the child’s and that therefore abortion should not be illegal. However, to subordinate a whole class of human beings to the interests of others is contrary to the basic principle requiring that all human beings be treated as equal in dignity, that all human beings should be equal before the law. Indeed, if the mother’s interests did always take precedence, and if that justified having the embryo or fetus killed, by the same logic killing infants or toddlers could also be justified. Killing an infant whose care suddenly became burdensome could be justified by the same reasoning — but this is absurd.
The law rightly prohibits all deliberate killing of human individuals except in extraordinary circumstances such as self-defense, and self-defense involves thwarting an assailant’s intentional attack. But of course an unborn individual could have no such intention. (And causing a death incidentally, as a foreseen side effect, is permitted only when life itself, or an interest comparable to it, is in imminent danger.)
Finally, someone might object that abortion should be permitted because laws against abortion create unequal conditions for women. Without access to abortion (it is argued) sexually active women will be subject to the burdens of pregnancy and the immediate responsibility for child care in a way that men will not and that women will therefore be less in control of their destiny.
However, this argument too is unsound. It is true that laws against abortion have a different impact on women than they do on men. However, from the fact that a law might have different impacts on different groups, it does not follow that the law is treating these groups differently, or that the law is unjust. In the 19th century, laws against slavery impacted a Southern plantation owner differently than they impacted others, but the laws were not for that reason unjust.
In reality, men have just as much a moral responsibility to care for and support the children they help to procreate as do women. True, because women and not men carry and give birth to children, men can escape their real responsibilities much more easily than can women. But it is no solution to this situation to encourage women to have their children killed as a means of making themselves just as able as their male partners — or at least more able — to walk away from a pregnancy. The fact that only women gestate and give birth to babies is an important fact. There may be many things we as a community should do because of this fact, but encouraging the killing of unborn human beings is not one of them. Three classes of persons are impacted by abortion or its availability: children, women, and men. Allowing the killing of innocent members of the first group for the sake of equality between the second and third groups is not justice.
Moreover, the claim that the abortion issue is essentially a clash between the rights of women and the rights of the unborn is misleading: It does not actually help women to persuade them to have their child killed; rather, it harms them perhaps as much as it harms the unborn children who are killed. And the experiences of many, many women confirm that abortion only exacerbates for themselves what may be already a very critical situation.
Two persons are involved in abortion cases, and the interests of both should be considered and respected. Equal protection of the law is not only a constitutional but also a jurisprudential and moral requirement.