Free Pro-Life Advocate Training

Image result for care-netIf you are serious about defending the unborn, protecting the most defenseless members of our families, and preserving the right to life, then please consider signing up for this free 6-session course series from Care-Net. You’ll get a study sheet and videos for each suggest, as they walk you through the history of abortion in America, the key arguments for and against abortion, and give some important strategies for taking a life-affirming stance in your home, at your church, in your community, and wherever you go. You too can be confident in your ability to defend the unborn: Care-Net’s Pro-Life Advocate Training

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Is Abortion a Legal Contradiction?

Abortion is, of course, a serious issue fraught with moral tensions, hard choices, and a bevy of questions about human rights. It’s easy to see how abortion policy can raise a challenge for our legal system, not to mention for individual and social ethics. But, does abortion constitute a legal contradiction? Does abortion choice policy somehow antagonize the very legal and judicial system whereby abortion-choice has become a fortified social policy?

Recently, a friend named Johnny asked this very question.  Referring to the Unborn Victims of Violence Act (H.R. 1997), he argues that it’s inconsistent for the legal system to treat unborn babies as murder victims in one law, and then excuse the same killing across the rest of abortion-choice policy. He then asked for resources to help build his argument. I agree with Johnny, and I’m pretty excited about this line of argument. While I’m not a lawyer, there are a lot of reasons to agree with him. I could not help but respond to him.

My response

Johnny, I think you have several options for arguing that our legal system contradicts itself [in regards to] abortion. The case you mentioned, the Unborn Victims of Violence Act (H.R. 1997), linked below, is one of the best reference points to build your case. Here are some of the contradictions/inconsistencies that come to mind, for me:

1. Federal-vs.-State inconsistency: the federal law may be understood to imply a presumptive right of protection for children-in-utero whereby any inconsistent/contradictory state laws may be challenged. This “presumptive right of protection” refers to the negative implications of “rights.” The child may or may not have any “right to life” [intrinsically], but … until it has been shown that the killer was entitled to take that child’s life, then this law suggests that there are federal protections for that child whether or not they are traceable to [fetal] “human rights.”

2. Scientific Inaccuracy: various laws and bills, including H.R. 1997, employ the findings of up-to-date science whereas Roe v. Wade is scientifically dated. In particular, Justice Blackmun, issuing the majority opinion for the case, claimed that we don’t even know when human life begins – that was false at the time of the RvW decision, and it’s been falsified even more since then. Blackmun understood that personhood and humanity were closely tied so he argued beyond the pale of good science so he could deny even the biological humanity of the child-in-utero). This left the court ruling vulnerable to future challenges on the basis of bad science. If a court ruling was fundamentally rooted in astrology, the theory of ether, or a ‘quickening view’ of biological humanity, these should all be subject to repeal today.

3. Life bias: the Unborn Victims of violence act need not “prove” that fetal humans have a right to life, so long as it establishes a judicial precedent where the legal bias favors life. In other words, if you don’t know, don’t shoot. Our judicial system is replete with this bias in favor of the victim. This is a good thing since it means we demand the highest level of proof before passing a death sentence (i.e., proof beyond a reasonable doubt).

4. Right to life: H.R. 1997 may demonstrate that there is in fact a right to life for all fetal humans, a right which is only partly and inconsistently secured by the government but a recognized right nonetheless.

5. Death Profiteering/Mercenary Killing: there are laws prohibiting and or restricting paid-killing (mercenary work/contract killing). Since abortion procedures both kill a biological human and generate a profit, they can qualify as death profiteering and could be prohibited on those grounds.

6. Child-protection: H.R. 1997 identifies the fetus as a “child-in-utero.” This terminology may be understood as involving the vast legal field of child protective services, and family law. Even if we could not prove that abortion is murder, it is still child-abuse, child-neglect, cruel-and-usual treatment of a child, etc.

7. Racism/Sexism: several laws are in place to prevent institutional racism and sexism. Abortion-choice policy, however, currently permits deliberately killing one’s child on the base of race or sex. [Also, considering the disproportionate rate of black and hispanic abortions, one may argue that abortion-choice policy has turned into a racist institution, regardless of good intentions and socio-economic rationalizations. The practical outcome is still killing, by ratio, more black and hispanic children-in-utero than white. Any institution deserves reconsideration when it generates hundreds of thousands of deaths while operating more on minority families than on white families.]

Sources

Posted in Abortion Cases, Abortion Laws, Ethics of Abortion, Terms and Definitions, Uncategorized | Tagged , , , , , | Leave a comment

Three Steps Needed to Make the Case for Abortion

Abortion-choice policy is a fiery debate. As with any hotly contested issue, this debate gives off a billowing plume of smoke clouding the air with ambiguity and confusion. In the interest of clearing the air, and clarifying the abortion debate a little bit, I would like to distill three different criteria on which abortion can falter: (1) the right to life criterion, (2) the right to kill criterion, and (3) the social policy criterion. Each of these criteria must be resolved for there to exist an ethically justified abortion-choice policy.

Distinguishing these three criteria can help identify which arguments work, and to what degree they succeed or falter. It is possible that an abortion-choice advocate offers evidence for one or two of these, thinking they’ve made their case for abortion-choice policy, but they fail overall by neglecting the third criterion. Or a person may intend to defend only one level at a time but may need to clarify that they know this defense isn’t adequate in itself since two others criteria need proving. Overall, it’s fine to deal with one at a time, but these logical pieces eventually need to combine so that all three aspects are resolved. Otherwise, I’d suggest, “abortion-on-demand” policy isn’t justified.

Criterion #1: Disprove the Right to Life

The first, and primary focus of many pro-life and pro-choice people regard the status of the unborn, notably whether the fetal human is the kind of thing with a “right to life.”[1] At this level, both sides typically divide in their answer to the question:

“What is the status of the unborn?”

For abortion-choice policy to be permitted, the status of the unborn must be low enough to where he or she lacks any compelling right to life. This “right” may be a human right to life, a natural right to life, a civil right to life, or some other kind of “right to life” comparable to that of pets, endangered animals, rare plants, and so on. The “human right to life” is probably the most common avenue for arguing this point, but it doesn’t appear to be the only option. At this point, it may be important to remember that some of the earliest organized child-abuse laws were first introduced by way of “animal cruelty ” laws; surely, one’s children deserve at least as much protection as a stray animal[2]. In this vein, the abortion-choice camp needs to show that the “fetus” is not “human” in the relevant sense, and is not even “animal” in the relevant sense.

According to this “right to life” criterion, the abortion-choice advocate needs to disprove the right-to-life (for fetal humans) outright, or show that the mother’s interests have more leverage than any would-be “right-to-life” claim for the unborn. The pro-life advocate should likewise attempt to prove the opposite, that there is a right to life that has moral leverage against the mother’s privacy claims. Now, for reasons established elsewhere, I’d suggest we are justified in giving human life the “benefit of the doubt” (the “life bias”) such that if there’s any reasonable doubt about whether killing a (biological) human is justified, then “if you don’t know don’t shoot.”

If there exists a right to life then abortion is not clearly justified since the mother’s right of bodily autonomy (supposing she has that right) is now a competing claim, and abortion-choice is pressed with a principled dispute. Some people, such as Judith Jarvis Thompson, argue that the fetal right to life is not sufficient for banning abortion, but then again, we may counter that neither is disproving the right to life sufficient for permitting abortion.

Thompson’s objection aside, the right to life appears to be the more basic right–compared to the right of autonomy–insofar as all other basic human rights entail that the rights-bearing individual is already alive. If the individual does not have the right to retain his or her own life, then to that extent, he or she is not guaranteed the rights to liberty, the pursuit of property, the pursuit of happiness, and so on. If the fetal human is believed to have no innate human right to life, then all those other opportunities can be stolen and destroyed in an instant–without violating any rights–by killing that individual. Liberty and happiness imply living, but one may live without liberty and happiness. While liberty and the pursuit of happiness entail life, life does not entail the other two. In this way, life is a more fundamental right than liberty or the pursuit of happiness. Put another way, only living beings have the opportunity to exercise bodily sovereignty / autonomy / liberty / privacy. Hence, autonomy presupposes life as an underlying moral basis for any other rights claims. In this way, the abortion-choice camp suffers a questionable grounding unless and until it can be shown that fetal humans do not clearly qualify for any provisionary, probable, or proven right-to-life.

Criterion #2 Prove the Right to Kill

In addition to the status of the unborn, abortion-choice policy also requires that the act itself and the acting agent are justified; that is, they need to show that there exists a maternal right to kill the unborn.  Most of the abortion debate seems to hover over the first criterion and doesn’t mature beyond that level of argumentation. So, this additional aspect is often forgotten. Many presume that if the child has no legally protected right to his or her own life, and the mother has a general right to do what she wants with her body, then she should be (morally) able to kill her unborn child-in-utero. However, we cannot rush to this conclusions since the abortion could be an unjustified kind of killing on other grounds besides the claim of “right to life.”

We may call this the “right to kill” criterion. And in some regards, it’s a fairly sensible notion as we recognize this kind of distinction elsewhere. The crux of the issue is that a thing may lack any special protection, in itself, yet someone else lacks the right to act against that thing. A  public baseball field may be a general privilege to the whole community, and people in the community can use it, scuff it up, mar its surface lightly. And so forth. But if a person got into a particularly heated argument with an umpire, and committed criminal assault, he may have a restraining order prohibiting him from getting within 100 yards of that baseball field. In this case, there can exist general permission which the individual, because of his own behavior, is restricted in his legal options. In this case, he did something illegal–criminal assault. Pregnancy isn’t illegal, so this analogy is somewhat limited. However, it does show that there can exist a general legal and ethical permission for something, nevertheless, some individuals are disqualified from partaking.

Suppose you were to go to a museum, and there’s a beautiful artifact that you’d like to touch. Because you are a museum guest, and it’s under a glass case, you are not allowed to touch it. But it so happens that the piece isn’t very fragile and the museum staff are all allowed to touch it since they understand the protocol for handling artifacts and they can safely touch the piece without damaging it. In this example, the artifact has no intrinsic status as a “do not touch” item, since some people may touch it. But some people are still prohibited from touching it. Let us suppose further, that you want to touch it and destroy it. Perhaps it offends your sensibilities somehow and you find it so profane that you believe it is unworthy of existence. Now, since you are just a museum patron you are not only restricted from touching it, unlike the museum staff, you are also prohibited from destroying it. Presumably, only the owner of that artifact has a right to destroy it. In this way, not even the staff have permission to act on that artifact to destroy it. Only the owner of that artifact has the right to destroy it.

In this illustration, we see that there can exist levels of legally and ethically permissible actions on an object, even if the object itself does not possess an unqualified “right to exist” (the inorganic equivalent of “right to life”). The museum patron is only allowed to look at it, the museum staff are allowed to look at it and handle it, and the owner of the artifact can look at it, handle it, and even destroy it if he or she wants to.

At this point, one may try to object saying, “Ah! But the fetal human is the mother’s child, that thing is hers. The fetus is her possession.” But, that distinction breaks down since the pregnant mother is not the owner but the carrier. She has custody of her child, she is not a master over a slave. Human lives are special like that since the mother and father can, in some literal sense “create” the child-in-utero, yet even the “creators” cannot rightly “own” that human life. Parenthood isn’t the same as property-ownership. Human lives aren’t property like that. We fought a war to prove that humans aren’t property. Children-in-utero may be family, wards, or something like that, but they aren’t chattel property that can be rightly destroyed at a whim. In this regard, we cannot assume that abortion would be justified as long as the right to life is unproven.

Restating the importance of this criterion: Even if the right-to-life were disproven, suspended, discredited, or otherwise dismissed, abortion-choice could still collapse if there is no concurrent right-to-kill.

Criterion #3: Prove that it’s Morally Sound Social Policy

There remains an additional level of proof required for the abortion-choice advocate. Besides discrediting the right to life, and demonstrating the right to kill, it must also be vindicated at a societal level.

Abortion is not a strictly “personal” decision as if it only affects one human being. Abortion is fundamentally societal in nature, always affecting more than one biological human being at a time (the mother with child), and so it demands the relevant level of justification for a societally weighted act. It could be that abortion makes good moral sense on an abstract level, or on the level of small-scale, private, and exceptional cases, but is wholly unfit for widescale permission as a social policy. Perhaps abortion is justified in principle or only in limited practice, but when considered as a policy it is disqualified. It could be that no morally feasible public policy could sustain it. In this way, it could make good rational sense for a person to be “personally pro-choice, but publically prolife.” Usually, those are switched and people think that pro-choice policy is the more tolerant, compassionate, or responsible default. But if abortion-choice ideals are too impractical, or they’re laden with too many side-effects and trade-offs, then abortion-choice policy may still not work.

Public policy is tricky, and good intentions, decent goals, and smart ideas can all fail to coalesce in workable policy. Good intentions have never been enough to constitute smart actions. Sometimes there’s no impropriety involved, and they have the best intentions, but the policy just doesn’t quite work for some reason or another. With abortion-choice policy, we have plenty of reasons to question whether it’s a serviceable policy. Besides the objections we could raise from #1-2 above, where rights to life might be violated, or killing might be unjustified, there may be other problems at a societal level which undermine the prospect of a morally feasible abortion choice policy.

For example, abortion could play an unseemly role in institutional racism. Since the abortion rates of black Americans are disproportionately high for that population, we have reason (prima facia) to question such practice when it generates such imbalanced outcomes. Abortion plays an ugly part in the history of eugenics, having lingered in its early years as a means of “improving the stock” back when “scientific racism” was fashionable and black people were thought to be genetically inferior to white people. Today “eugenic abortion” is something of a dirty word, but it’s quite prevalent in the form of aborting fetal humans with down syndrome and other genetically testable diseases. Abortion is a societal issue, and not just a “private” or “personal” matter. And historically, it’s not a hard case to show that abortion bears upon public health. So there’s a public health motive to consider within abortion-policy.

We may likewise consider reports of trauma, exploitation, and malpractice, regarding the conduct of abortion clinics, surgeons, and staff. We could go further and question whether abortion fosters a culture of death, especially since it is death-profiteering. In this way, we can question whether it’s ethically sound policy to permit an industry which generates direct monetary benefit from killing innocent non-threatening human beings.

Consider another field that deals with death. We’d have a problem if the military were in the practice of intentionally killing unarmed, non-threatening, non-combatant civilians on purpose and unprovoked. Yet, the military is that rare industry that, plainly stated, is in the business of killing. We may tolerate military killing under the general premise that some sort of defense system is necessary for international and homeland security for the United States. However, abortion is not so clearly justified since fetal humans aren’t enemy combatants. They are not declaring war, forming an axis of evil, or carrying out terrorist attacks. Fetal humans are legally and morally innocent so, they can’t be relevantly compared to capital criminals who receive the death penalty through the due process of the judicial system. If the standards of a capital crime cases were applied to every prospective abortion (i.e., fetal humans are innocent until proven guilty, unanimous jury decision, reasonable doubt criteria, etc.), it’s doubtful that any abortions except the most tenuous cases could render a sentence of death-by-abortion.

Only in rare cases do fetal humans pose a mortal threat to the mother’s life, in utero. Even if we allow abortion in cases of “self-defense,” that would only address one or two percent of all abortions. That would hardly suffice to justify a liberal abortion-on-demand policy. So that exceptional case is just not enough proof to resolve the social-policy criterion.

But the social policy criterion can be elaborated further. We’ve already noted how every (completed) abortion kills a homo sapiens at the hand of one (or more) people. That makes it a social action, in that at least two members of the human race are involved. Besides the pregnant mother and her child-in-utero, however, there are other people typically involved including the seminal father, whether or not he’s “in the picture.” There may also be the woman’s close family and friends. The abortion-surgeon and clinic staff may also be involved. Even at the smallest level, abortion is still a societal act. It involves more than one human being. It would be naive, and simplistic, to think of abortion in strictly isolated and individualistic terms since abortion is never a strictly individual action, it’s an act between at least two human beings. And this kind of action is permanent and drastic so that one biological human being is destroyed entirely. He or she is not just denied citizenship, or incarcerated, or suffering from character assassination. Abortion issues in his or her fatal demise.

Now we can all agree that individual liberty, personal freedoms, and bodily autonomy are all an important part of a robust democratic society. Nevertheless, when an action bears heavily upon society, and especially when it brings about the fatal demise of one of it’s members, then society is literally and physically impacted. Its membership is reduced. It’s clinics have one more fatality. It’s families have one less member. It’s health-care statistics (should) shift accordingly. Normally we would (rightly) regulate and restrict other industries that trade in actions intentionally killing human beings (i.e., we have many restrictions on assisted suicide banning in most states; we have many boards and organizations overseeing the medical industry to prevent deadly malpractice; we have many levels of oversight for the military). It makes great sense then to question whether abortion qualifies as an ethically sound practice within modern medicine. Social policy cannot exactly green-light a surgical procedure that contradicts the first principles of medical ethics: “Do no harm,” and “Do good.”

Of course, abortion in first-world countries is not measured by counting on one hand either. Abortion practice doesn’t submit to “atomistic” thinking when the abortion rate is enormous. The rates are in the thousands, tens of thousands, hundreds of thousands, millions, and in some cases, hundreds of millions. At this level, it would be ridiculous to consider abortion strictly in terms of personal liberty, individual rights, or some atomized rubric. Abortion-choice is a gargantuan societal phenomenon, wherever it has been permitted on wide scale. As such, we are justified in demanding that abortion-choice advocates show that it’s a credible concept at the level of social policy.

Rebuttal and Summary

At this point, one may be thinking that the case so far sounds stilted in the pro-life direction. Perhaps, the pro-choice advocate would embrace this demand for evidence so long as the pro-life advocate has to do the same. Admittedly, I have my own biases here. But I think there are rational grounds for treating these criteria with a double-standard. Whoever is making a claim has their own burden of proof. In that way, the pro-life and pro-choice sides both have their burden of proof. But, admitting that there’s some burden of proof on both sides, I’d suggest that the burden is heavier for whoever is arguing for permission to intentionally kill innocent biological human beings. I have argued this “life bias” elsewhere so I will not rehash it here. But suffice it to say that our normal, intuitive, and deeply held belief that human life merits protection over destruction has a hard-fought history in natural law ethics, and human rights legislation.

Summarizing the argument we see that abortion could be justified if it can be shown that

(1) the fetal human lacks any right to life of himself (disproving the right to life)

(2) there exists, for the agents conducting the abortion, moral permission to kill the fetal human ted (proving the right to kill)

(3) and the act is otherwise ethically permissible were it to be practiced widely, that is, to a reasonably full extent at a societal level (qualifying for social-policy)

The first criterion addresses the status of the unborn and demands one disprove the right to life. The second criterion addresses the act itself and the acting agent, demanding one prove the right to kill. The third criterion addresses the societal context demanding one prove that abortion-choice qualifies for social policy. I don’t believe abortion-choice policy satisfies all these criteria, and I definitely don’t think it does a better job responding to these concerns than does the pro-life position.

 

Endnotes

[1]Notice, here I’m not strictly identifying the fetal human within the concept of “human rights.” The right to life is normally, but not necessarily, understood as a <em>human </em>right. It could be that there exists a natural right, an implicit civil right (somehow betrayed by abortion-on-demand policy), or some other basis for a “right to life” besides one’s humanity. I’m not making that case here, one way or the other.

[2]Etta Wheeler, a missionary and (proto)social worker in Hell’s Kitchen, New York took on the case of Mary Ellen Wilson, 10 years old at the time of the trial. With the help of pro-bono lawyers they won an 1874 case in the New York Supreme Court arguing on the grounds that humans are at least animals, and the abuse Mary Ellen endured would be illegal against any domestic animal. Wheeler later adopted Mary Ellen. That same year, in 1874, the New York Society for the Prevention of Cruelty to Children was born, in part, because of that victory.

 

Posted in Abortion Laws, Abortion Practices, History of Abortion, Kinds of Abortion, Philosophy of Abortion, Terms and Definitions | Tagged , , , , , | 2 Comments

A Simple Answer to a Burning Question

If you were inside of a burning fertility clinic, and you had to choose between saving a toddler versus saving 1,000 frozen embryos, which would you pick?

This is the thought experiment renewed in popular conversation by comedian, writer, and social commentator Patrick Tomlinson. The short answer to his thought experiment is:

“All else being equal, pro-lifers can rightly choose to save the toddler, even though they are well within their moral rights to choose to save the 1,000 embryos. Either way, the thought experiment entirely bypasses the most relevant factor in abortion, that human embryos are human, and may still qualify for at least a modicum of moral respect sufficient to protect them from elective, non-dilemma, abortion-choice. The burning lab scenario does a marvelous job of illustrating what pro-lifers and pro-choicers tend to agree on already, that there are real-world differences between human beings across their different stages of development. Now, whoever set the lab on fire, that person is clearly in the wrong presuming they weren’t forced to do so. So, it is likewise wrong to kill innocent, defenseless, human beings (embryonic or otherwise) without some fancy fire-dilemma forcing that choice.”

That’s the short answer, but to understand it better you may want to keep reading.

Don’t Go Starting Fires

What we have here is a fairly sophisticated philosophical thought-experiment which is handled fairly poorly. Tomlinson is not adding much light to the issue; it’s more like rhetorical arson. He’s starting a fiery debate.

With no disrespect to Tomlinson, a good thought experiment like this one should generate new insights, fostering discussion, curiosity, and perhaps even breakthroughs in our understanding. Tomlinson, however, has been demanding that pro-lifers give a straight-forward A or B answer, with no explanation. He’s treating an open thought-experiment like it’s a closed question. Instead of stating one’s reasoning – and that’s where the real meat of the argument is found – he’s restricting responses from pro-lifers to (A) the 5-year old child or (B) the 1000 embryos.

I’m going to respond below, with a bit of academic rigor, to Tomlinson’s argument. But, a lot of what follows below would equally apply to stronger and more sophisticated variations of this argument were someone to also apply it directly to abortion as Tomlinson has done. Just because his treatment of this thought experiment is faulty, doesn’t mean the illustration is worthless. It’s actually a very good illustration, for what it’s worth, but it is not well suited as a straight-forward pro-choice argument.

Also, if you are looking for a practical response to this line of argument as you might encounter it in a casual conversation in the cafeteria, or over a poker table, then I recommend you follow the advice of Tim Brahm of Equal Rights Institute in “Four Practical Tips for responding to the Burning Fertility Clinic.” I’m doing a formal, academic, response here. It’s informational. But Tim’s article is practical. If you want to hear more voices on the subject you should also check out responses from Robert George, Gregor Damschen and Dieter Shonenecker, Ben Shapiro, Clinton Wilcox, and Matt Walsh.

(1) It a Logical Breakdown

Logically, it commits the error of “non sequitur,” meaning it does not follow. In this case, it does not follow that picking A or B requires that a person hold a particular stance on abortion. An un-implanted embryo has no developmental future without artificial insemination, but the thought-experiment does not offer any details about whether those embryos will be implanted or whether any of them will succeed. In Tomlinson’s version of this thought experiment, we are asked to make a decision without critically important information. But, if we lack critical information for making that decision, then we can decide either way and rightly plead ignorance in the court of moral opinion. If we don’t know whether those embryos have a probable future, an unlikely future, or no future, then there’s no clear “pro-life” or “pro-choice” label that fits a simple choice of A or B.

Before Tomlinson can demand that pro-choicers choose A and pro-lifers choose B, he needs to prove that those are the only internally-consistent options for those groups. Without that demonstration, however, his conclusion does not follow from the premises.

(2) It’s a Disanalogy

Tomlinson’s use of this experiment is also a disanalogy. It is not a good illustration for the point Tomlinson is trying to make. A good analogy will clarify something unfamiliar by comparing it with something familiar. A bad analogy, however, fails to clarify that thing often by comparing two things in terms of critical differences where they aren’t very similar.

The abortion debate is critically different from the burning lab illustration. Abortion is not about saving humans from accidental or environmental peril (like a fire), but about intentional peril. The burning lab illustrates a true dilemma, and it’s a fine illustration for what it’s worth, but in pregnancy, no one has to die. The “dilemma” is between killing and not killing anyone. There’s no accidental peril, akin to a fire, bearing down and threatening innocent humans. The struggling mother does not have to choose between which life to destroy, but rather choose between having her child-in-utero killed or spared. In this way, the analogical argument breaks down because Tomlinson’s argument leaves out the most critical factor, intentional killing.

In other words, the strength of Tomlinson’s analogy is that it’s far-removed from abortion. The closer the thought-experiment is to an abortion-situation, the more we find the difficult dilemma dissolves into an obvious decision – Don’t kill human beings. Now, I don’t want to stretch the analogy too thin. Tomlinson probably isn’t trying to create a neat clean argument from analogy. But if he is going to reduce this thought experiment to a straightforward “proof” for abortion-choice, then he is arguing by way of analogy, even if he’s doing it loosely and presumptuously. Analogical arguments only work if they responsibly illustrate the relevant similarities. His argument doesn’t really do that.

(3) It fails by Contrary Analogy

Using Tomlinson’s parameters, we can clarify one ambiguity in his storyline in a way that flips the script. What if those 1,000 embryos are the only remaining viable human offspring in the world? If it is the case that saving them saves the human race, and letting them die in the fire destroys them, then it is clear that the moral choice (all else being equal) is to save humanity, even at the expense of the 5-year old.

This analogical rebuttal makes it clear that Tomlinson has left the door wide-open by leaving critical details ambiguous in his argument. I’m not trying to contort the thought experiment into something it’s not. I’m only showing that there are possible reasons why a person could choose either A or B, depending on background information, and be morally justified in that choice.

(4) This argument implicitly undermines abortion, casting it as arson.

Since Tomlinson’s version of this thought experiment is aimed at the abortion debate, then he may need to specify who starts the fire. In abortion, the efficient cause for abortion is the mother. Typical pro-choice logic dictates, “Her body, her choice.” She’s the one choosing to terminate the life of her pre-born child. Regardless of whether the man in the lab chooses to save the toddler or the embryos, the fire is the material cause that killed innocent human life, but the arsonist is the one responsible for the death of A or B. This thought experiment, taken at face value as an argument for abortion, seems unduly harsh on the abortive-mother. She is “starting the fire” so to speak.

Moreover, abortion-choice is just that, a choice, it’s not required. If the fire is likewise optional, then the arsonist is morally culpable for starting a needless fire that killed human embryos. Even when pro-choicers deny the “personhood” or “moral equality” of those embryos, “arson” is still wasteful, malicious, and destructive. In this way, abortion can still be the wrong choice even without any agreement on the moral status of embryos.

(5) It’s a False Dilemma

Tomlinson treats this thought-experiment like A is the pro-choice answer and B is the pro-life answer – a straightforward dilemma. He reinforces this framing by deleting disagreeing explanations from the thread. This framing, however, is a false dilemma. A person may choose instead to risk dying, hoping for a miracle, as he tries to save both. That option is enough to show this isn’t a true dilemma – perhaps martyrdom is morally superior. I’m not making that martyrdom case here, but it’s another option. There are other options too, mentioned below, which further complicate this scenario.

(6) There can be pro-life motivations for choosing A or B

Even if we restrict our choices to (A) the 5-year old child or (B) the 1000 embryos, there are pro-life reasons why a person could choose either. But unless Tomlinson engages with the reasoning behind these choices, he will never know what someone’s choice is saying about their views on abortion. A pro-lifer may affirm saving the 1000 embryos for the sake of protecting more human lives, or he or she may save the 5-year old child in the same way that a triage doctor ascribes a higher priority to the one with the greatest chance of survival; a healthy 5-year old child may have a greater chance of survival that all 1,000 frozen embryos. None of the embryos have a legally protected future unless and until they are implanted and only if the in-vitro process succeeds.

Robert George, explains other reasons why we might be justified picking one toddler over 1,000 frozen embryos.

The five-year-old will suffer great terror and pain in the fire, but the embryos will not. Moreover, the family of the five-year-old presumably loves her and has developed bonds of attachment and affection with her that will mean much greater grief in the event of her death than in the event of the death of the embryos. While these concerns would not justify killing, they can play a legitimate role in determining how we may allocate scarce resources and, in some cases, whom we may or should rescue. (George 2017, para. 7)

Furthermore, George goes on to explain how it is not enough just to count the numbers, judging 1,000 embryos greater than 1 toddler.

Often, the (or at least a) morally correct decision cannot be made just on the numbers—a point that even utilitarians are willing to acknowledge. And so, for example, it is morally relevant in some cases where choices of whom to rescue must be made that a person we could save is (for example) our own son or daughter, even if saving him or her means that we cannot save, say, three of our neighbors’ children who end up perishing in the fire from which we saved our own child. (George 2017, para. 7)

It should be clear that there are more factors involved than simply “counting” embryos to toddlers. And these other factors mean pro-lifers can be justified in picking A or B.

(7) There can be pro-choice motivations for choosing A or B

Likewise, a prochoice person may choose A or B, depending on their reasoning. He may choose to save the 5-year old because he thinks the embryos lack any right to life, a conventional pro-choice belief. Or he may save the 1000 embryos because his own child is in there somewhere, and he wants to preserve his offspring regardless of any ‘right to life’ consideration. Or, he may think the 5-year old is a bratty kid with a poor prospect of flourishing in life, meanwhile, he sees the 1,000 embryos as brimming with potential.

(8) It’s a Misapplied Illustration – it doesn’t fit the abortion issue because it wasn’t originally about abortion.

Building on the previous points, if pro-lifers and pro-choicers can both choose A or B, then this thought experiment isn’t pointing strictly to a pro-choice conclusion, like Tomlinson seems to think. It can point either way, it’s ambiguous.

This ambiguity isn’t surprising because the thought-experiment wasn’t originally about abortion. To my knowledge, it was first formulated by George Annas (1989), and reiterated by Michael Sandel (2005), to illustrate a point about embryonic stem cell research and human cloning. Sandel uses this thought experiment to argue that embryos do not have “equal moral status” with children-ex-utero (pg. 245). While this may sound bad for the prolifer, he explains one paragraph earlier that “one need not regard an embryo as a full human person in order to believe that it is due a certain [level of] respect. Personhood is not the only warrant for respect” (pg. 245). Remember, Sandel isn’t talking about abortion here. We could grant his point, for the sake of argument, and remain pro-life by affirming that human embryos deserve real, albeit lesser, protections so they are never killed by elective abortion. A pro-life position fits his argument just fine since he’s trying to show, what many pro-lifers and pro-choicers readily admit, that there are relevant practical differences between human embryos and toddlers. To be sure, this finer point, about the valuational difference between toddlers and embryos, is important to the abortion debate. It does not, however, embody the abortion-debate like Tomlinson seems to think it does. Pro-lifers can, and do, grant practical inequalities but assert that both A & B have a right to life. Pro-choicers can likewise grant practical inequalities while denying that B has a right to life.

(9) Ethics of Care can clarify, for pro-lifers, moral differences between the toddler and the embryos

Some commentators use the language of an “emotional decision,” saying that we may choose to save the child because of “emotion” (ex., Walsh, para. 5). This terminology, however, can be misleading because it can sound like truthless irrational feelings are determining our moral decisions. Emotions do not exactly have the reputation for pristine moral logic. Plus, if we suggest that it’s an “emotional decision” we risk blurring our moral sentiments or ethical intuition with our irrational passions. It may be that our conscience weaves deep within our emotional life, and while it often feels like emotions, it still points reliably (for most people) toward moral facts. I don’t want to dismiss the value of emotions, but people mean a lot of different and confusing things when they say “emotions,” and there is some literature suggesting that our common understanding of emotions as “irrational passions” is deeply flawed (see Martha Nussbaum, and Robert C. Solomon). I’d suggest a better frame of reference might be Ethics of Care.

Ethics of Care is a system of ethics developed by Carol Gilligan and Nel Noddings around 1984. This system of ethics specifies a relational, compassionate, and subjective approach to our ethical choices. Think of a nurse’s care for a patient as opposed to a scientist’s treatment of a test subject. While the scientist tends towards cold objectivity, fair and balanced treatment, and impersonal distance; the nurse cares for her patient in a sensitive, responsive, and relational way. She may even value her own patients more than anyone else’s patients. Ethics of Care offers a marvelous insight into the world of ethics by pointing out that we can have different, justified, ethical judgments based on our relationships. A mother has a greater ethical pull towards her children as opposed to the neighbor’s children; an American may have greater ethical concern for fellow Americans than for foreigners; a man may care more about his wife than about any other person in the world. These critical differences are not implying that some humans are more innately valuable than others. Instead, these differences point out a complex and subjective landscape where relationships really do matter in ethics. Now, I’m not suggesting we embrace the entire framework of Ethics of Care. Ethics of Care is often criticized (rightly I think) for its surrender to relativism and liberal feminism. We can, however, find some important insights here for the burning laboratory thought experiment.

Embryos have no inter-personal capacity for relationship with anyone yet. Even if we grant the typical pro-life view that they are persons, they are still not the sort of mind-will-emotion persons with whom we can share interpersonal experiences. They lack that sort of interpersonal capacity, and so they are relationally isolated at that stage in their lives. Furthermore, they have no familial relation except for anonymous donors. The embryos, by no fault of their own, are cut-off from the meaningful relationships that lend normal and rightful ethical responsibilities within their caring community. Many of our ethical decisions fall along relational lines, helping out a friend, but declining to help a stranger; feeding my own children, but not feeding the neighbor’s children. If I have one meal to offer, and it’s going to my wife or a stranger, and both are equally hungry, then my wife get’s the meal. There’s no immorality in that decision. In the burning lab scenario, the 5-year old child has more relational and interpersonal ties to the world than, presumably, all 1,000 embryos. We may be perfectly justified in asserting an ethic of care, and saving the 5-year old instead of the embryos, just as a mother is more justified and responsible in caring for her child instead of someone else’s child.

(10) Argument by “worst-case scenario” is a bad strategy

The burning lab illustration is susceptible to “worst-case” reasoning. By “Worst-case reasoning” I’m referring to the tendency to distort and exaggerate something by focusing on the worst-cases. It would be a bad policy to always stay indoors because bad weather could harm you; or never talk to any strangers ever, because of “stranger danger;” or never eat vegetables because of botulism. Sure, we can find worst-case scenarios where people slipped on ice, or they talked to the wrong stranger, or they got botulism from a salad. But these are not sufficient evidence to justify a universal policy about those things. Worst-case reasoning errs by generalizing too widely on the basis of scary extremes. The burning lab illustration doesn’t work with a genuine “worst-case,” since that scenario has probably never happened in the history of the world. Instead, the burning lab scenario invents a worst case scenario, out of thin air, to create an emotionally charged dilemma. This scenario can have some emotional pull (including irrational reactionary passions). But since this worst-case never really happened, and may never happen in the future, it doesn’t tell us a whole lot, practically, about whether the abortion-industry is wholesome enough to merit our public support. It doesn’t tell us whether there may be other reasons to oppose abortion. It does not tell us about the majority cases, the ones that don’t fit the “worst case” framing. Most abortions are miles removed from the “worst cases.” They are often regrettable situations but aren’t a dilemma between saving one life or saving more. The vast majority are not rape pregnancies, nor do they have extremely deformed or handicapped children-in-utero. Most abortions are fairly mundane elective abortions where the woman did not value her child’s life enough to refrain from destroying him or her in-utero.

In the abortion debate, the “burning lab” illustration is somewhat rare. The more popular worst cases scenarios tend to be: (1) rape-abortions and (2) perilous pregnancies where the mother’s life is in danger. Now, if these objectionable cases are addressed in a calm, and respectful manner they can be a perfectly legitimate line of inquiry into the ethical pros and cons of abortion-choice policy. However, there’s a quick way to tell whether a person is sincerely arguing on this basis, or whether they are using worst-case reasoning as a smoke-screen to obscure other motivations behind their position. I like to make an offer:

“Would you lend your support to a general ban on abortion, that makes exceptions for women who have been raped and for women in perilous pregnancies? I’d support that law, since I want to save lives for mothers and their children alike. Would you support that?”

I have yet to find an abortion-choice advocate who has lent their support. But after that point, they stop mentioning rape and perilous pregnancies. When they were mentioning the “worst case scenarios,” I think, they were drawing attention away from the other kinds of abortion, sometimes known as “convenience abortion,” that they also support. They did not want the argument to veer in a direction where they are left defending women who refuse to use contraceptives because their boyfriend doesn’t like condoms, or they are left saying that it’s ethically permissible to tear apart an innocent squirming human being limb from limb.

With the burning lab illustration, this “worst-case reasoning” helps distract attention away from the gut-churning images of actual abortion. Abortion and the abortion industry are really ugly. I can understand why abortion-choice advocates would not want to spend much time looking honestly at it. But, the “worst case reasoning” is a bad habit risking distortion, distraction, and even dishonesty.

(11) Hard Cases Make for Bad Laws

It has often been said that hard cases make for bad laws. They make for bad laws because they point to the exceptions and the dilemma scenarios, leaving the law ill-equipped to address the more general and common cases. Imagine if all cars were banned because less than one percent of driving trips crash. Imagine if cocaine were legalized in all cases because a doctor finds an unusual medical benefit when it’s used to treat a rare disease. Imagine if a clothing company instituted a new policy halting production on all 2-legged trousers and instead reverted to 1-legged trousers because there are people who have only one leg. Imagine if all convicted pedophiles were permitted to work in daycare centers because 2 or 3 convicted pedophiles have been successful daycare workers without incident. Hard cases, exceptional cases, and anomalies make for bad laws.

In this case, the burning lab experiment suggests an unusual burning laboratory scenario which, quite possibly, has never occurred in all of world history. This situation is just a thought experiment, but it’s theoretically possible. It’s not so outlandish that it could never happen. However, it’s still a “hard case,” a ripe ethical dilemma that philosophy classes can argue over for weeks on end. And since, those philosophy classes, and them able-bodied philosophical scholarship beyond them, are firmly divided on how to navigate or interpret this scenario, then we can be assured that at the level of public policy, we would not be wise to try to use this thought experiment as a central pillar supporting a universal law in favor of abortion, i.e., abortion-choice policy.

Some of the “hard cases” border on absurdity, with strange and abstract thought experiments that effectively separate the argument from any chance of approaching a realistic deliberation on the legitimacy of abortion, for example, as dismemberment killing, or other “unsightly” aspects of abortion-practice. I’ve personally heard people argue for abortion choice policy by way of thought experiments about: (1) men getting pregnant, (2) alien invasion, (3) forcible organ donation/sharing with a concert violinist, (4) floating airborne “people” seeds, and now a (5) burning in-vitro laboratory. Other lines of argument are more mundane, such as the (6) streetcar dilemma, and the (7) acorn analogy. Each of these scenarios has it’s own purpose and could be used in a fair and rational way. However, these are often used as a diversionary tactic, to force the abortion debate into the stratosphere, 2 and 3 degrees removed from the ugly reality of deliberate killing of one’s child-in-utero. It’s a strategic disadvantage for abortion-choice advocates to let the conversation linger around the unsightly reality of destroyed fetal humans. The pull toward abstraction and “worst-case scenarios” helps to justify abortion-choice policy by diverting attention away from the common-case scenarios where the choice is between convenient killing or compassionate life-saving.

These worst-case scenarios also help justify abortion-choice policy by slicing out critically relevant factors that weigh against abortion-choice. With the burning lab scenario, no abortions are in view, no motherhood is mentioned, and no family relations are anywhere to be found. By removing all these factors, the thought experiment is simpler, but it’s so austere that it may have eliminated all the critical differences that “make all the difference.” This method of argument is kind of like saying, “Ballet and bowling are basically the same sport, if you focus on what they have in common.” Tomlinson has created a “worst case scenario” that is not much like abortion at all

 

(12) The Game is Rigged

At this point, it should be clear that Tomlinson is not offering an open discussion, an academic debate, or a genuinely intellectual exchange here. This “controlled conversation” is more like pseudo-intellectual showmanship. The effect is more heat than light.

Furthermore, Tomlinson is doing his own pro-choice camp a great disservice by feigning an intellectual debate when instead it’s more like a Fordian choice, “You can have any color car you want, as long as it’s black.” For Tomlinson, it’s “You can oppose abortion-choice any way you want, as long as you’re supporting it.”

This thought experiment is not new and it’s not a “grand slam” like Tomlinson seems to think. It’s not even terribly relevant to abortion, not directly at least. This clever thought-experiment can help reveal the murky circumstances of bioethical dilemmas, but it doesn’t really tell us much about the ethics of elective abortion.

If you’d like to see some of the original versions of this thought experiment see George Annas (1989), Michael Sandel (2003), and Dean Strettan (2008), all cited below. You may also want to read Frank Beckwith’s Defending Life, where he mentions this thought experiment in a wider context of abortion-choice arguments (2008, pg. 169). See also, Robert George’s Embryo: A Defense of Human Life (2008, pg. 216) for a more expansive treatment.

Sources:

Annas, George. “A French Homunculus in a Tennessee Court,” Hastings Center Report (1989), 20-22.

Brahm, Tim. “Four Practical Tips for Responding to the Burning Fertility Clinic,” Equal Rights Institute (27 October 2017), accessed 29 October 2017 at: https://blog.equalrightsinstitute.com/four-practical-tips-responding-burning-fertility-clinic/

Damschene, Gregor and Dieter Shonecker, “Seven Embryos or Saving One child: Michael Sandel on the Moral Status of Human Embryos,” Ethics and the Life Sciences in the Philosophy Documentation Center (2006), 239-45, accessed 7 November 2017 at: https://philpapers.org/archive/DAMSSE

George, Robert and Christopher Tollefson, Embryo: A Defense of Human Life (New York: Doubleday, 2008).

George, Robert, and Christopher Tollefson, “Embryos and Five-year Olds: whom to Rescue,” The Witherspoon Institute, 19 October 2017. Accessed 29 October 2017 at: http://www.thepublicdiscourse.com/2017/10/20332/

Nussbaum, Martha. Upheavals of Thought: The Intelligence of Emotions, Upd. Ed. (Cambridge, UK: Cambridge Univ., 2003).

Sandel, Michael, “The Ethical Implications of Human Cloning,” Jahrbuch fur Wissenschaft und Ethik, Vol. 8 (2003), 5-10, accessed 29 October 2017 at: https://scholar.harvard.edu/files/sandel/files/ethical_implications_of_human_cloning.pdf

Solomon, Robert C. Not Passions Slave (Oxford: Oxford Univ., 2007).

Stretton, Dean, “Critical Notice–Defending Life: A Moral and Legal Case Against Abortion Choice by Francis J. Beckwith,” [book review], Journal of Medical Ethics, 34, no. 11 (2008), 793-7

Walsh, Matt. “Here’s The Reason Why Pro-Aborts Rely on Worst Case Scenarios to Argue Their Point,” DailyWire (17 October 2017), accessed 29 October 2017 at: http://www.dailywire.com/news/22380/walsh-heres-reason-why-pro-aborts-rely-worst-case-matt-walsh#exit-modal

Wilcox, Clinton. Response: “Thought Experiment: The Burning IVF Facility,” Prolife Philosophy (self-published; 5 July 2012), accessed 7 November 2017 at: https://prolifephilosophy.blogspot.com/2012/07/thought-experiment-burning-ivf-facility.html?m=1

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A Documentary History of Human Rights Regarding Abortion

Abortion history is, in many ways, a question of the nature and domain of human rights. To treat this difficult issue with due deference we must consider it’s historical position entrenched within the timeless debate over human rights. In this abridged list are several key documents which have been formative sources for clarifying human rights law and practice.

Admittedly, the notion of “human rights” is largely a “modern” concept even if it’s roots (potentially) trace all the way back to the origin of humankind. The “negative” case against human rights could include a wide range of charters, constitutions, and civil and social laws codes across history which largely ignore any developed sense of human rights (ex., Code of Hammurabi, Hittite Laws, Code of Manu, etc.). Our modern sense of human rights–“life, liberty, pursuit of property”–is traceable at least as far back as John Locke (17th cent.). and the “pursuit of happiness” is traceable at least to Thomas Jefferson (18th cent.). However, for us, these would be mere theories, had they not trickled down into garden of early American political theory.  Many theorists have elaborated positive, and negatives, cases regarding the disputable notion of “human rights”. This list, however, focuses on the positive case for human rights, and eschews the theoretical and non-conventional texts, instead prioritizing conventional socio-political statements like charters, constitutions, and international declarations.

Document Commentary
1. Hippocratic Oath (5th cent. BC)

 

 

 

 

 

 

a. Central document for Medical ethics. Outlines various provisions regarding the centeral tenets of medical ethics (beneficence, non-malfeasance, autonomy, and justice). This is the statement physicians swore by to enter the medical profession.

b. “I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.”—a ban on euthanasia and abortion are explicitly stated here.

c. At the time, a distinct human life was thought to begin at the quickening. Nevertheless, what they thought was abortion was still medically banned.

2. Magna Carta (1215)
& British Common Law 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a. The Modern Human rights tradition is widely thought to be a descendent of the Magna Carta (the “Great charter”). In particular, this is the earliest flagship of the British Common law tradition.

b. The Magna Carta is fairly mild by today’s standards, but it introduced notions of religious freedom (freedom from overt state interference) and rights of due process.

c. Clause 39 deals in Due Process, a concept that would resurface in 5th and 14th Amendments of the U.S. constitution and eventually serve instrumentally in allowing abortion.

d. Abortion could be addressed implicitly regarding conscientious objectors who don’t want their tax dollars to support abortion. Also, the child-in-utero is denied any due process yet issued a judicially forged death sentence.

e. Regarding common law, from the 13th-15th century, in England, the unborn entity was consistently called a “child”[1]

f. Under British Common law, abortion was legal before the quickening, but the medical knowledge at that time would not have considered the woman pregnant until the quickening. In this way, the only abortions permitted were, what they thought to be, non-abortions.

g. Abortion was prosecuted in many cases in the late medieval and modern era, even before the first official statute banning abortion in 1803. The historical account referenced by justice Blackmun in the RvW decision (1973) is poorly informed and misleading on this issue. Specifically, justice Blackmun was wrong to argue from ignorance that abortion was legal in England before 1803. It was prosecuted under common law and through implicit means before 1803 when the ban on abortion became explicit prohibition.

3. Declaration of Independence (1776)

 

 

 

 

 

 

 

 

a. Revolutionary in its day, and impactful ever since then, the Declaration of Independence is a radical and liberal landmark for the human rights tradition in the modern era.

b. “We hold these truths to be self evidence that all men are created equal” (Preamble).—Since human beings are first created at conception, and they are naturally equal from the point of creation, then fetal humans are equally human as you and I, from conception onward.

b. “endowed by our created with certain unalienable rights” (Preamble)—These are basic human rights, not extrinsic or created legal rights.

c. “to life, liberty, and the pursuit of happiness.” (Preamble)—The right to life is mentioned before the right of liberty. Perhaps because it’s the more basic of the bunch. Life as the practical qualifier for all other rights.

4. U.S. Constitution (1788) and the bill of Rights (1971-1992).

 

 

 

 

 

 

 

a. The constitution and the bill of rights speaks to abortion indirectly through the Due Process Clause of the 5th and 14th amendments.

b. “No person shall … be deprived of life, liberty, or property, without due process of law “ (5th amendment) and “[N]or shall any State deprive any person of life, liberty, or property, without due process of law” (15th amendment).—The child was later ruled to be a non-person or merely a “potential human” and thus is denied protections within the due process clause. Meanwhile, the mother’s right of privacy is thought to be a facet of her right of liberty and thus she has the freedom to do as she sees fit with and within her own body without any undue burden from the state. She could be prevented, governmentally, from acquiring an abortion by only by use of due process. On a case by cases basis, and given the law of the land, there’s no guarantee that due process would do any good.

5. Universal Declaration of Human Rights (1948)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a. This document is in “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” (preamble)

b. “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” (Article 1)—humans are equal at birth. This is silent on whether any qualified “equality” might apply before birth, in-utero.

c. “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Article 2)—In light of article one, this is not as helpful to pro-life causes as it could be. Ironically, this language prohibits discrimination on the basis of “birth or other status” immediately following discrimination on the basis of birth.

d. “Everyone has the right to life, liberty and security of person.” (Article 3)—Similar to the due process clause and the preamble to the Decl. of Indep., the right to life is mentioned first and foremost. It would seem that as soon as a human being has life, that life is theirs to keep, and no one else’s to take.

e. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”( Article 5)—Abortion is cruel and torturous at least once the child can feel pain.

f. “Everyone shall have the right to recognition everywhere as a person before the law.” (Article 6)—This point is of limited value since “everyone” is unclear. Otherwise it could be used to argue that human children-in-utero should be recognized as persons.

g. “No one shall be subjected to arbitrary arrest, detention or exile.” (Article 9; see also Article 13)—abortion is arbitrary and fatal exile.

h. “Innocent until proven guilty” (Article 11)—the burden of proof lies with the accuser.

i. “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” (Article 16.3)—emphasizes the central importance of family for society.

j. Article 18: “Freedom of religion”—people have religious freedom cannot be obligated to violate their religious conscious and perform abortion as a public health worker, or support federally or state funded abortion through their tax dollars.

k. “(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” (Article 25)—implicitly affirms the special dignity of the mother child relation.

6. European Convention on Human Rights (1954)

 

 

 

 

 

 

a. the section titled “the Right to life,” says “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” (I.2.1)—this early mention suggests primacy, at a foundational level regarding other human rights.

b. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”—Abortion is torturous at least once the child can feel pain.

c. Article 9 “Freedom of Religion.”—This should protect conscientious objectors from having to operate against their religious convictions and support abortions with their tax dollars, or perform abortions within a public health vocation.

7. International Covenant of Civil and Political Rights (1966)[2]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a. Affirms “the inherent dignity and of the equal and inalienable rights of all members of the human family” (prologue).—This is a telling statement in it’s broad outline of “human family.” Children-in-utero are already human children of their mothers, and literally family members.

b. The terminology of “person” and “people” is the preferred term throughout.

c. “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (II.2.1; see also, III.26.1)—Abortion choice policy permits discrimination on all these bases. Also, while “birth” here refers to family relations/class/caste, it’s ironic that in the literal sense child-birth is the key discriminating line against the most endangered group of humans in world history.

d. “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” (II.3)—As fathers do not have the legal, moral, or natural right to kill their children at any stage of development then it is an inequality for mothers to be able to do so.

e. “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” (III.6.1)—Overt affirmation of the negative right to not be aborted. The terminology here is

f. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” (III.7.1)—abortion is a cruel and torturous act, at least when performed on late term (20+ week) fetal humans who can feel pain. The use of fetal remains in medical sales and experimentation likewise violates this.

g. Part III, Article 12 speaks of rights against displacement/exile. This could bear upon abortion as the abortion procedure is a physiological displacement from the child’s rightful (legally entered) home. The child is legally innocent.

h. “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” (III.13.2)—This presumption of innocent acknowledges the life-bias, and puts the burden of proof on the accuser. Applied to abortion this would shift the burden of proof onto the abortion-advocate who’d need to show that supposed injustice of an unwanted pregnancy can be rightly addressed with fatal force. The imperiled child should be treated as “innocent until proven guilty.

i. the death penalty, at several points in the document, is considered taboo/banned with the exception of war crimes and military contexts. This rightly acknowledges that human life should not be treated casually, but preserved/protected wherever reasonably possible.

j. “Everyone shall have the right to recognition everywhere as a person before the law.” (III.16.1)—This point is of limited value since “everyone” is unclear. Otherwise it could be used to argue that human children-in-utero should be considered persons before the law.

k. “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” (III.17.1)—Abortion interferes with the privacy of the child.

l. Article 18 deals in freedom of religion. This could be used to show that no one should be compelled to help fund abortions through their tax dollars so long as they have a principled religious conviction against it.

m. Article 23 affirms the dignity and value of marriage as the “the natural and fundamental group unit of society” (III.23.1)—no complaints.

n. “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” (III.24.1)—Abortion readily permits discrimination via sex-selective, race-selective, and eugenic abortion. While not explicitly decried in this covenant, abortion is in bad company here. Even if the fetal human isn’t considered a legal person, they have race, gender, birth defects, and so on, and each of these can be used as points of discrimination to the degree of intentionally killing him or her.

8. Convention on the Elimination of All forms of Discrimination Against Women (1979)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a. This document revolves around the recognition and securing of equal rights for women. As such, abortion-choice advocates may understand it as overwhelmingly favoring abortion as “equality” was a major premise in the establishment of abortion-choice in Roe v. Wade and abortion-choice legislation ever since. However, men are not able to have abortions or to kill their developing child at any stage of life. True, men have “autonomy” and “privacy” over their bodies, and women can/should have that too. But it has not be demonstrated adequately that the woman’s rights of autonomy and privacy extend so far as to allow her killing her own child in the womb.

b.”To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.” (I.5.b)—strong emphasis on family and parental responsibility to one’s children. Remember that the child-in-utero is already a child, from conception onward.

c. Part III, Article 11, Section 2 deals in marriage and maternity rights and makes no mention of abortion.

d.”States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.” (III.12.1)—Healthcare is mentioned, but with no inclusion of abortion. As abortion does not care for the health of preborn girls, and incurs many risks, with no new life to show for it, we cannot safely assume that abortion is implied within the notion of “healthcare.”

e. “Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.” (III.12.2)—”appropriate services in connection with pregnancy.” Abortion may be permitted here, at the discretion of any given nation. Perhaps this language is meant to keep abortion from stealing attention away from other, more pressing, human rights crimes occurring around the world (i.e., marital rape, genital mutilation, sex trafficking, etc.). This document is meant for diplomatic purposes and we can expect tactful diplomatic avoidance on issues where 1st world nations disagree.

f.  “… To have access to adequate health care facilities, including information, counselling and services in family planning” (III.14.2.b).—Again, “family planning” may sound like code language for abortion-choice. But we cannot safely assume that much since rights of “family planning” in a 3rd world patriarchal cultures can indicate things like protection from forced abortion, forced sterilization, and contraception access. As of 2013, sixty-six countries or about 26% of countries prohibit abortion entirely or reserve it only for cases threatening the mother’s life.[3]

g.”The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;” (IV.16.1.d)—note that the “interests of the children shall be paramount.” The idea is that children are a particularly threatened population, and so, our laws should be specially aimed at protecting them.

h.”The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights” (IV.16.1.e).—This language could be understood in abortion-choice countries as permitting abortion. But it’s not explicit, but rather diplomatically vague on the issue. Quite possibly, the majority of the convention members approve of abortion. But there’s sufficient opposition to prevent the authors from including abortion as an explicit human right.

i.  Overall, there is no explicit right of abortion-choice explicitly stated or implicitly clear within the text of this document.

[1]Source, Clark Forsythe, “The Historical Roots of Abortion Law,” National Review (17 June 2015), para. 8.

[2]Source: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[3]Center for Reproductive Rights, “The World’s Abortion Laws Map, 2013 Update,” [Fact sheet] (New York: Center For Reproductive Rights), accessed 24 April 2017 at: https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/AbortionMap_Factsheet_2013.pdf

 

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A Legal History of Abortion in America

 

A.    ≤ 1900
1. Ancient Law (5th BC-4th Cent. AD) Ancient Greeks via Aristotle thought of the “soul” as “mover” of the body. This substance dualist view treated the quickening as the point at which distinctly human life begins. Abortion is taboo/ condemned in several ancient sources (Sibyline Oracles [6th BC], Hippocratic Oath [5th cent. BC], Sentences of Pseudo-Phocylides [50BC-50AD], 1st Enoch 1–2 cent BC, Josephus [1st cent. AD].
2. Medieval Law (5th-16th cent.) the quickening view dominates as it’s widely agreed upon among Christian, Jewish and Muslim thinkers (though it’s not universal).
3. British Common Law (17th-mid. 18th century) Abortion is legal in all states prior to the quickening, as fetology at the time was not clear about when human life began. It was widely thought life began only when mother detects fetal movement, although, abortion was still considered taboo even before the quickening *This view is disputed by Marvin Olasky (Abortion Rites). His original sourcing shows enough exceptions to raise a stiff challenge to this widely held view about British Common Law.

 

B.  20th Century
1. Lochner v New York (1905) NY Worker’s Union case. Court ruled for individual liberty on basis of “substantive due process.” This ruling was decried by later Supreme Court verdicts (1937>) for reading economic theories into the constitution; instead, civil rights are the more proper domain for these kinds of rulings.
2. State courts (1850-1960) All states pass laws banning abortion. A common exception is in case of mortal threat to the mother.
3. Sherri Finkbine (1962) Unwittingly taking Thalidomide (A.K.A., “monster maker”), Finkbine carries a deformed child in utero. Seeking legal abortion she’s denied in U.S. raising sympathy for abortion in the U.S.
4. State Courts (1962-1973) 17 states pass/amend laws opening abortion to cases of rape, health risks, and fetal damage. Four states, AK, HI,NY,WA, allow it at woman’s and doctor’s discretion. Only PA kept full abortion ban.
5. Griswold v Conn. (1964) Married couples have a right to use contraceptives. Privacy is an implied constitutional right.
6. Eisenstadt v Baird (1971) Singles (non-married & non-couples) have right to contraceptives. Right to privacy is extended.
7. Roe v Wade (1-22-1973) Legalized Abortion on demand by way of right to privacy. Fetus’s are declared “non-persons,” not covered by the 14th Amendment of the Constitution.
8. Doe v Bolton (1-22-1973) Expands abortion legally to include any distress as a health reason, incl. “Psych. Distress”
9. Planned Parenthood v Danforth (7-1-1976) Supreme court overturns a Missouri law requiring husband’s consent for abortion.
10. Beal v Doe (1-11-1977) States aren’t required to pay for non-therapeutic (medically unnec.) abortions by Medicaid
11. Belotti v Baird (7-2-1979) MA ruling striking down parental consent
12. Harris v McRae (6-30- 1980) Supreme court upholds Hyde Amendment (Social Securities act) restricting Medicaid funding for abortion to cases of life endangerment, rape, or incest.
13. H.L. v Matheson (3-23-1981) States may require doctors to inform the parents of a teenager’s planned abortion.
14. Thornburgh v Amer. Coll. Of Obst. & Gyn. (6-11.1986) Supreme court strikes down the PA Abortion Control Act (1982) which required two consenting doctor’s opinions and reading of informational packets before abortion would be granted.
15. Webster v Reproductive Health Services (7-3-1989) Affirmed that, “The life of each human being begins at conception.” States have regulatory rights but can’t outlaw abortion. These include banning use of public facilities and employees to perform abortions. Also states must test for viability at 24 weeks of gestation.
16.  Hodgson v MN (6-25-1990) Minnesota law is upheld requiring parental consent for abortion.
17.  Planned Parenthood v Casey (6-29-1992) State rights extended to include making laws requiring counsel, parental consent, and waiting periods so long as they do not involve “undue burden” or “substantial obstacle” to the mother.

 

C.    21st Century
1. Stenberg v Carhart (6-28- 2000) Nebraska ban on partial birth abortion is struck down invalidating similar laws in 30 other states.
2. Partial-Birth Abortion Act (11-5-2003) GW Bush signs law prohibiting certain abortion procedures, namely, partial birth abortion.
3. McCorvey v Hill (2-22-2005) Norma McCorvey (Jane Roe) sought to overturn the ruling of Roe v. Wade. The Supreme Court upheld the decision of Roe v. Wade.
4. Gonzalez v Carhart, & v Planned Parent. (4-18-2007) The ban on partial birth abortion is upheld, departing from past rulings that struck down any such bans if they did not carry exceptions for protecting women’s health (generally).
5. Ultrasound Act (2007-pending) Passed in various forms in 12 states. This act requires ultrasound before giving an abortion.
6. Protect Life Act (10-13-2011) Prevents federally funded hospitals from having to provide abortions and prevents insurance providers from covering abortions.
7. Pain Capable Unborn Child Protection act (2012) Passed in several states including GA, NE, AL, KS, and ID banning abortion after the 20th week of pregnancy but it’s allowed if the mother’s life is in danger.
8. Arkansas Human Heartbeat Protection act (1-31-2013) Arkansas law which states that a test must be done and if a fetal heartbeat is detectable the abortion cannot be done. Puts fetal protection between 6 and 12 weeks.
9. Human Heartbeat Detection Act (3-27- 2013) North Dakota law which states the child cannot be aborted once fetal heartbeat is detectable and identifies this as 6 weeks. Most time/development restrictions set the cut-off at 20 wks or later.
10. Gosnell vs. PA (5-13-2013) Kermit Gosnell convicted of 3 counts of murder aborting late term babies ex utero. Touted as an ex. of media bias: He is the most prolific mass murdered in US history yet major media barely reported it
11. Born Alive Bill (4-30-2013) Bill passes in FL protecting babies against infanticide who were born alive in botched abortions.
12. HB2/SB5 Omnibus Abortion Bill (7-13-2013) TX abortion bill passed which banned most abortions after 20 wks, requires oversight for the 2nd dose of RU486. Also requires abortion service providers to have admitting privileges with a local hospital and to meet certification requirements for emergency care. Allegedly, its implementation would close all but 8 providers in TX. It’s currently being litigated federally.
13. Fetal Dismemberment Bill (4-17-2015) Bill passed in Kansas which bans dismemberment abortions (typical of 2nd and 3rd trimester).

 

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Abortion Transcends Politics

The standing question here is whether abortion is a political issue.

At first glance, Yes, abortion is clearly a political issue. Abortion is political in the sense that politicians debate the subject in campaign season, they broadcast their abortion views to win votes, abortion has been a deciding issue in the minds of many voters, and abortion easily fits within the broad sense of politics since most everything people do is political (useful directly or indirectly for an advantage in the democratic process). Without dispute, abortion is a politicized topic. But upon deeper reflection, abortion may be only nominally or secondarily political, having a deeper identity in ethics rather than politics. To understand this nuanced non-political sense we must first consider what is politics and how, in that sense, it remains deeply political.

https://i0.wp.com/northiowatoday.com/wp-content/uploads/2012/10/20121025edloc-a.jpgAbortion is Political

Politics, deriving from the ancient Greek word polis meaning “city state,” refers to matters of governance including laws, bills, political parties, elections, and so on. Elections are won and lost, sometimes, on the subject of abortion. The 2012 Democratic national convention ran a negative party-wide campaign titled, “Stop the Republican War on Women,” and that was (and still is) predicated heavily on abortion advocacy.  The degree of abortion access, federal funding, legal history, support and opposition to abortion-on-demand, these have all been politically heated subjects. Political stripes have shifted over the years, variously accommodating and opposing abortion-on-demand, but today, wide and inexpensive access to abortion remains a key agenda item for much of the democratic party; and with it, a lot of libertarians, progressives, and socialists agree.

Major abortion advocacy groups like Planned Parenthood (1916), National Organization for Women (1966), National Association for Repeal of Abortion Law (1969), and Emily’s List (1985) have tended, overwhelmingly, to side with democrats on matters of abortion access and funding, though many of them would prefer abortion access to be even more liberal than it is now (in the United Sates). Interestingly, in the late 19th and early 20th century, abortion was widely opposed by “Left” and “Right” alike. For example, Margaret Sanger, an outspoken socialist, contraception advocate, and founder of Planned Parenthood, broadly opposed abortion along with many of the early (first wave) feminists in that era (late 19th-early 20th century).

Republicans, however, have largely rallied around social conservativism, typically emphasizing traditional family values, and anti-abortion positions, at least since the mid-1980’s. The Republican party’s uniform opposition to abortion, however, wasn’t until 1988, the crest of the Reagan years. The 1980 and 1984 Republican party platform leaned pro-life but still acknowledged that some republicans supported abortion choice. The social upheaval of the 1960’s and 70’s had radically shaken the republican foundations generating such odd outcomes as a 1971 Southern Baptist Convention pro-choice resolution.

Yet, despite some moral ambiguity among Republicans the Human Life Amendment (6 March 1973; et al.), has remained a popular part of the republican agenda ever since Roe v. Wade (22 January 1973). Today, a minority of republicans, of the libertarian and moderate bent and often in blue states, have taken a pro-choice position, but they far are outnumbered by pro-life republicans. The republican party has fortified it’s anti-abortion position by the shared strength of politically influential conservative groups like Phyllis Shafly’s Eagle Forum (1972), Jerry Falwell’s Moral Majority (1979), the Family Research Council (1983), James Dobson’s Focus on the Family (1977), and the Christian Coalition, with Pat Robertson, (1989). In recent years, Fox News (1996) and the Tea Party (2007-8) have risen to political prominence too, lending strength to contemporary conservative perspectives including the prolife movement. The Tea Party, for example, has focused primarily on fiscal and economic issues–which are only secondarily related to abortion But while the Tea Party has not expressly focused its attention on social conservatism they have empowered conservative ideals and the Republican party broadly, lending strength to other “secondary” conservative agenda items like school choice (vouchers, home schooling liberties, etc.), traditional marriage (i.e., bans on gay marriage/promotion of traditional marriage), and religious rights issues

With abortion being so clearly fixed within politics, how could it possibly be understood as non-political?

Abortion is Non-Political

https://kisa.org.cy/wp-content/uploads/2015/04/human-rights-300x184.jpgAbortion can be non-political in the sense that it’s moral grounding resides underneath even politics. Intentionally killing one’s own child-in-utero can be unethical, regardless of whether the government deems it legal or illegal.

Abortion can be unethical even if there were no political comments for or against the practice. This is because morality isn’t legality. These are two distinct concepts. Ethicists have often admitted that “legal” and “ethical” are different. Laws of the land  can be unethical, and good ethical practices can be illegal. In an ideal world, ethics and politics would overlap beautifully so that all laws were good and decent. But in the real world, they don’t always work out that way. Slavery was evil even when it was legal. And Cuban coffee is morally fine, but illegal to buy directly from Cuba because of trade embargos. In short, legal doesn’t equal moral and vice versa.

Abortion can also qualify as non-political if it is wrong at an individual level, that is, regardless of society and government. Questions of government, judicial law, and politics all refer to society, but things like basic human rights can operate even if there is no organized society. If a cruiseship crashed on an undiscovered desert island, they would have no established government, and no civil society. Everything would be automatically legalized, as there would be no pre-established laws for that territory. Yet, most of us, and most ethicists and legal scholars can admit that it would still be wrong to kill innocent human beings in that setting. Human rights trace to our humanity and not just our society.

Now, of course, people disagree about whether abortion violates any human rights. Pro-choicers argue that the child has no rights during at least some stage of development, with the rights beginning only at viability, pain-sensation, birth, or whenever the mother decides to keep the baby. Pro-lifers, on the other hand argue that elective abortion violates the child’s human rights, namely, the right to life. To this we could add other, human rights, such as the right against “cruel and unusual punishment,” or the right of due process, or the right against parental neglect, etc. But for now, we’ll just focus on the right of life.

I have argued before (see the posted video), that abortion violates the basic right to life. So long as the child is a living human being–and biologically there’s no dispute about that–we ethically owe that human being the benefit of the doubt. In colloquial terms, “if you don’t know, don’t shoot.” It is not enough to demonstrate that the child perhaps, probably, or quite likely lacks the right to life. We should be reasonably certain that any given abortion is justified before permitting that abortion. The capital punishment that effectively occurs with every abortion is too heavy to hinge on a “maybe.” Not even the Roe v. Wade decision satisfied this criteria, however, as there was a 7-2 split decision. That ruling would not have been enough to bring a conviction in a capital murder case. Even one death penalty couldn’t have passed with a hung jury. Yet that fateful ruling has facilitated the death of almost 60,000,000 children-in-utero since Roe v. Wade.

Presumably, if there is a right to life extending all the way to the earliest stages of human development, then the right to life is the most basic of any other rights. It would begin with the earliest biological fact of that child, namely, that child first becomes a distinct living human being at fertilization. The child is not old enough to qualify for civil rights like driving, voting, or military service.  The child isn’t mentally developed to have “liberty” or the “pursuit of happiness.” And the child’s “personhood” status remains a hot topic of debate. But at that earliest stage of development the child-in-utero is already alive, with a distinct life of his or her own, a life which is not the same as the mother’s. Therefore, if that child has the right of life, it’s among the earliest moral facts about that child.

Furthermore, the right to life, is presupposed within every other right. Only living humans have the rights of liberty, pursuit of property, the pursuit of happiness, voting rights, driving rights, etc. All these rights presuppose that the individual is alive, and has a right to keep his or her life rather than be killed (without due process) at the whim of private citizens, or the government.

And so, we can make a case that abortion is non-political if it’s moral weight rests within a foundation of human rights. If abortion infringes on intrinsic human rights then regardless of whether a government deems it legal or illegal, then abortion is still wrong. It’s sub-political like that.

It’s Both Political & Non-Political

It may sound like a contradiction to admit that abortion is political and non-political, but rest assured, we mean these in two different senses. Abortion is political in the common and normal sense of “politics as usual.” Abortion is clearly a chesspiece on the board of modern politics. It’s about as politicized as any subject can be. There is no use in denying this fact. And politically minded people have often admitted, with only slight exaggeration that “everything is political.” Generally speaking, that’s quite true. And abortion is no exception.

However, underneath the legality and politics, is morality and ethics. Abortion bears upon human rights. Prochoicers focus on it’s impact on the mother’s right of liberty (including privacy, sovereignty, and self-direction). Prolifers assert that it violates the most basic human right, the right to life. Prochoicers and prolifers are therefore justified in seeing abortion as spanning both political parties, defying “government as usual” because it’s foundation lies underneath political parties, judicial laws, congressional bills, and every government in the world.

This “non-political” sense is perhaps better understood as “transcending politics” as it can operate regardless of politics, and could apply to individuals on a desert island, even if there were no government in place. In that sense, the ethics of abortion should inform our politics. Our politics should, where possible, reflect what’s ethically right.

Unfortunately, abortion is all-too-often treated like a morally neutral token–a pragmatic piece of ideology, to be traded for votes and signatures. It’s as if abortion is nothing more than a partisan game piece. Indeed, this issue has been one of the most polarizing issues in modern politics, comparable to 19th century slavery. Not a few democrats vote pro-choice, keeping within the party lines, despite their own pro-life ethics. We could critique this “personally pro-life, publically pro-choice” logic, but that outlook is all too common among democrat and liberal voters. Abortion is clearly a partisan dividing line with most Republicans on the pro-life side and Democrats on the pro-choice side.

Yet, despite all the party politics, abortion is more basic than all of that. If abortion is the crime against humanity that pro-lifers think it is, then politicians of every party, creed, and kind should be able to stand against it in good conscience. And given the magnitude of abortion–the single deadliest act against fellow man in human history–it is perfectly justified to be a “single issue voter” on abortion.

Abortion may be one of the most politicized issues in Washington, but we must not forget that it’s too basic, too foundational, to submit to the simplistic trappings of politics. Abortion transcends politics, because the right to life is true regardless of government.

 

 

 

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