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 follwo 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 and parental 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 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 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 detail 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 the unborn.

(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 pro-choicer 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 be a pro-choicer who 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 it 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 is no dilemma between saving one life or saving more, no rape pregnancy, no extremely deformed or handicapped child-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 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 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 any 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

 

Posted in Abortion Laws, Ethics of Abortion, History of Abortion, Terms and Definitions, Women's Issues | Tagged , , , , | Leave a comment

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).

 

Posted in Abortion Cases, Abortion Laws, Abortion Practices, Contraception Practices, Terms and Definitions | Tagged | 2 Comments

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://i1.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.

 

 

 

Posted in Abortion Laws, Ethics of Abortion, Philosophy of Abortion, Terms and Definitions, When does Life Begin?, Women's Issues | Tagged , , , | Leave a comment

The Coathanger Argument

What is the “Coathanger Argument”?[1]

One of the commonly spouted, earnestly supported, eagerly shouted arguments for the pro-choice position is the coathanger argument. Heavy laden with emotion, and with at least some evidential support, this argument is one of the time-tested favorites for swaying audiences to the pro-choice position.

Essentially, the argument is that restricting or abolishing women’s access to abortions would force women to procure abortion in dangerous ways. We don’t want to push women to have perilous abortions endangering themselves through “coathanger abortions” at home, or otherwise dangerous “backalley” abortions. Therefore, we shouldn’t restrict abortions.

The chief evidence for this argument is that illegal and unsafe abortions happened across women’s history before Roe v. Wade. Second to that evidence are appeals to human stubbornness; presumably, many women would still go forward with their desire to abort regardless of whether it’s legal. This notion seems reasonable enough, people can be pretty stubborn especially when it comes to matters relating to sexual practice, and it’s effects. The argument can sound quite compelling when it’s cited with pictures and descriptions to back it up.

The stronger forms of this argument distinguish between “illegal” abortions and other perilous abortions. Illegality, we can expect, will often correlate with increased dangers as abortion-seeking mothers revert to unregulated and non-clinical settings for their abortions. But, the kind of abortion in view here is unregulated abortions, including at-home, back-alley, or otherwise illegal abortions which, presumably, are less safe than we could expect in the safe, sterile, and medically regulated environment of a clinic or hospital.

Mistaken Assumptions

Error #1: Illegal Equals Unsafe/Legal Equals Safe

However, that correlation between legality and safety isn’t perfect, and it would be wrong to assume that illegality, as a rule, equals less safety for the mother. We cannot reasonably assume that just because any given abortion is illegal it is more likely unsafe for the mother. And vice versa, an abortion method could be legal but very unsafe for her.

Before Roe v. Wade there was, allegedly, a thriving medical abortion practice where abortions were conducted, primarily, in sterile and professional setting within hospitals.[1] In 1972 and earlier, many otherwise respectable doctors, were conducting abortions in Ob/Gyn offices, in-patient surgery wards, and Emergency rooms. In these clinical conditions patients benefited from medical protocols regarding sterilization, anesthetics, informed consent, nursing assistance, and so on.

Furthermore, abortion carries its own risks anyway—even under the safest conditions (for the mother). The American Pregnancy Association lists the following “light” side effects:

  • Abdominal Pain/Cramping
  • Nausea
  • Diarrhea
  • Vomitting
  • Spotting and bleeding

These are relatively common side effects, and should be virtually expected in 1st 2nd or 3rd trimester abortions. But according to the same site, 1 in 100 first trimester and 1 in 50 second and third trimester abortions also incur some combination of “serious” complications:

  • Heavy or persistent bleeding
  • Infection or sepsis
  • Damage to the cervix
  • Scarring of the uterine lining
  • Perforated uterus
  • Damage to other organs
  • Or Death

These sorts of complications are not abundant, but they are more common than many pro-choice advocates admit. And they are common enough, and legitimate enough, risks to where anyone seeking an abortion should be aware of these possibilities, otherwise they haven’t given informed consent. In short, even legality, and firm regulations can’t make abortion “safe” but only safer than it might otherwise be in back-alleys and bathtubs.

Legality only sometimes overlaps with morality or safety. Federal and state regulations do matter but, frankly, medical providers and abortion clinics will adhere to whichever regulations they feel they need to for offering a marketable service. That means some regulations are ignored, if they think they can get away with it, and other regulations could be adopted on a clinic-by-clinic basis as they see fit for their practice. An abortion clinic is liable to offer their own, unique, regulations if they perceive it to be cost-effective and marketable. For example, they may offer counseling services, follow-up visits, sterilization protocols, above and beyond any state or federal regulations. Just because a federal or state regulation isn’t in place doesn’t mean each clinic will descend into the “wild west” and start escalating dangers to women.

Error #2: Legalizing Abortion Reduces Unsafe Abortions

Another problematic assumption common within this objection is that liberal abortion access reduces the number of maternally dangerous abortions. This assumption is problematic because we just don’t have a reliable way to tell whether the numbers of illegal and back-alley abortions went up or down since legalization. People seeking illegal abortions generally don’t report to Guttmacher pollsters that they had an illegal abortion. As a rule, only the legal abortions are reported to the CDC, Guttmacher, etc.

We can theorize that unsafe abortions declined upon legalized abortion-choice policy; there’s a certain logic in this theory. But it’s only a theory. We can also theorize, reasonably, that federal abortion policy helped create a larger market for abortion services—now that women can acquire inexpensive legal abortions, they will live and act accordingly. Effectively, women and men generate more unplanned pregnancies under the expectation that they can abort if they believe it’s necessary.

Statistics from the Center for Disease Control point out that the rate of unplanned pregnancies, and out-of-wedlock pregnancies has risen since 1973, correlating with a declining marriage rate.[2] Without digging too deeply into this point, we can admit that if the rates of out-of-wedlock and unintended pregnancies rose since 1973 it’s at least possible that abortion-choice policy helped facilitate this climate of out-of-wedlock pregnancies. And it’s within this climate of rising unplanned pregnancies (relative to ’73 and earlier) that the market for abortion rose from less than 100,000 abortions in 1969 (when it was illegal), to 12x’s as many abortions, averaging about 1.2 million abortions yearly since RvW.[3]

This ten-fold increase means that we could, at the same time, have a lower percentage but a higher total number of botched abortions and maternal deaths.

Error #3: Maternal Injury and Deaths from Abortion-related complications are systematically underreported and suppressed.

It would be easy to descend into conspiracy theory and conjecture, at this point, since we are dealing in “back alley” and unregulated medicine. Admitting that possibility, we should be aware that secrecy is the norm for unregulated, malpractice, illegal, or otherwise problematic forms of abortion.

For clinicians, it’s important to guard their own financial interests and suppress any publicity about complications or malpractice. It’s bad for business, and could lead to lawsuits.

For pro-choice politicians, it’s important to guard the narrative of “expanded abortion access lower risks.” If it turned out that expanded abortion access only nominally or inversely affected medical risks, then that could be bad for one’s political platform.

For abortion-seeking patients, it’s important to guard their privacy and their own good name. While laws require reporting clinical abortions in most states, the women themselves aren’t usually “proud” of their abortions, and aren’t excited to tell everyone that they engaged in “unsafe sex” or even were raped. If complications or fatal trauma ensue, the individual or family and reporting examiner may prefer to suppress the evidence as it might shine poorly on the mother, embarrass her, or testify against him in the court of public opinion.

The truth of abortion fatalities and abortion complications can be embarrassing to the victim. Nurse practitioner Susan Schewell reports a systemic problem suppressing reports of abortion-related complications: “Women have been known to conceal abortions from loved ones, and a physician or coroner may be less apt to report her injury or death as abortion related.”[4]

Medical examiners on their own volition or by pressure from the family, may report the scene in a technically accurate way that overlooks the primary cause. In cases where no criminal or civil case is pending, the medical examiner may just be doing his or her best to honor the wishes of the family or the perceived discretion of the victim.

Scattered studies like this one from the Chicago Tribune show that medical records routinely, and deliberately, misreport abortion fatalities similar to underreporting suicide cases. In that article, Meghan Twohey suggests as many as 7,000-17,000 abortions went unreported in Illinois alone, 11 different abortion providers were operating “off the books” (unregulated), and up to 4,000 medical complications (including death) may have gone unspecified in official records. Now, we cannot safely extrapolate Illinois’s problem across all of America, but this sort of investigative journalism does show that we cannot assume as true some of the most ridiculously small estimates—”4 abortion-related fatalities this year.”

A study in Finland found a higher rate of unreported and misreported maternal deaths from abortion than from pregnancy. The Finland study is exceptional for digging beneath the data from death certificates, and self-reported stats, to find suppressed information inferred from composite stats of hospital discharge registers, induced abortions, spontaneous abortions, live births, and cause-of-death They found “94% of abortion-associated deaths were not identified from death certificates or cause-of-death registries alone.”

Other sources, often from Pro-life organizations, focusing heavily on this issue, suggest that multiple studies and reports collectively prove a suppressive climate, chronically underreporting abortion complications and fatalities.

Error #4: Repealing Roe v. Wade would return us to the Pre-Roe Era.

Another error that often swirls in here is that repealing Roe v. Wade would doom women to the culture of unregulated secrecy and second-class status that fostered medically dangerous abortions before 1973. The problem here is that the maternal risks were already dropping well before 1973, and not because of abortion-legislation but because of advances in medicine.

Dr. Peter Saunders points out in 2012 post, that by 1968, the rate of maternal deaths from abortion had dropped to almost zero in England before abortion was legalized. The same goes for the U.S. prior to 1973.

The real life-saver isn’t Roe v. Wade, it was penicillin.

Now, of course, if Roe v. Wade were repealed then we are liable to end up in a federal court era similar in some respects to the pre-Roe period. But medical technology wouldn’t have to retreat. We’d still have our medical knowledge regarding infection risks, pain-management, and long-term effects of pregnancy and abortion.

We have no good reason to expect a repeal of Roe to drive doctors or patients to 1940’s era medical practice—back when the complications and fatality rate was sky high—when they could revert just as easily to 1972-era medical practice (which is still old-fashioned) but considerably safer. More reasonably, we can expect doctors and clinicians to use modern 21st century medical practices and technology to ensure as much safety and health as they can reasonably offer their patients.

If a women sought an illegal abortion in this day and age, she could find a panoply of methods through the internet, at a local library if needed, and purchase the materials through local, national, or international sources as she sees fit. Even though Penicillin, for example, is not an “over the counter” drug, it’s still incredibly easy and cheap to purchase and have shipped right to your door.

Moreover, if abortion were banned tomorrow, we’ve already been seeing a decline in abortion rates suggesting that women might actually be practicing safe sex more than they did in prior years. There’s no good reason to expect any concurrent ban on contraception, so “safe sex” would be just as feasible as before any abortion-ban. Some women would follow the adoption option. And still others would just abstain, and perhaps even avoid foreseeable dangerous situations (wild parties, blind dates with online strangers, etc.). so, for those women, there is reduced chance of pregnancy and abortion. We could reasonably expect the incidence of abortion to decline, perhaps drastically, as women act within their self-interest to avoid illegal and personally risky abortions.

Still, we could reasonably expect some increase in coat-hanger abortions even if abortion were generally banned (say, for all cases aside from rape and mortal threats to the mother). But we cannot know how much so. This is speculative, and we need to guard against wild speculation. If even poor and marginalized women are generally responsible, self-interested, and can appreciate a measure of duty regarding their own children (in-utero or ex-utero), then there might be only a negligible increase or no increase in coathanger abortions. If however, women are generally irresponsible, foolish, and lacking self-awareness then we can expect the number of coathanger abortions to climb high if abortion were generally banned.[5]

Rebuttals

So far, we’ve seen how the coathanger argument might still be formed into a plausible argument. Presumably, there would likely be some increase in the demand for “back alley” or “at-home” abortions if abortion were banned. We do not know reliably whether that increase would be drastic, minimal, or entirely false. Nor do we have reason to believe that any ban would force U.S. abortion practice back into 1940’s era medical norms. And we also have reason to believe that statistics about abortion-related complications and deaths were suppressed, distorted, and misreported, quite possibly, to help maintain a better light on the current abortion-choice policy. Furthermore, it’s not clear at all that the incidence of back-alley and coathanger abortions have declined since 1973. Sure, legalization brought abortion practice out of the darkness and into the light, but it also helped foster a skyrocketing demand for abortions which, in turn, helped stimulate abortion-providers to arise and meet the demand, often at a lower price, and even with illegal and subpar practices as long as they thought they could get away with it. In this way, characters like Kermit Gosnell were able to operate filthy and illegal clinical practices for decades, committing thousands of unregulated abortions and infanticide killings (i.e., “post-birth abortions”).

Having clarified and framed the coathanger argument we can now turn to formal rebuttal.

Evidence #1 If abortion violates human rights then it should still be banned (in part or in total) just as other crimes against humanity have been (i.e., slavery).

Abortion can still fail on its own demerits. If abortion isn’t already justified, in principle, then women and doctors who seek abortion would be doubly wrong for pursuing a wicked practice through dangerous ways. If abortion is morally wrong, on par, for example with manslaughter, then it seems silly to argue that manslaughter must be legalized or remain legal so we can keep it safe and regulated. The idea behind an abortion ban would be to make it harder, not easier, nor safer, to commit a great injustice against fellow man.

Evidence #2 The Coathanger Argument Commits the Consequentialist Fallacy[6]

According to the utilitarian fallacy, most anything can be explained away, morally, by appealing to “ends justify the means” thinking. As such, it’s too flexible to direct us toward truly and reliably good outcomes. It easily becomes a rationalization structure for doing whatever one wanted to do anyway. Utilitarian fallacies were commonly used in justifying any given barbarism in communist Russia, “for the good of mother Russia,” or in the 3rd Reich for the good of the “higher race,” or in the Marxist uprising in Cuba. Indeed, utilitarian thinking can be used to justify the worst genocides—so long as the people who would remain afterwards can foreseeably be happier overall than the net total of happiness beforehand. Utilitarian calculus could be used to justify torture, murder, or rape, if all of those behaviors helps the criminal dissipate his urge to ruin multiple lives by, instead, focusing all his criminal urges on one victim.

The coathanger argument commits the utilitarian fallacy by suggesting that legal abortion is a justified means to the desired goal of keeping women out of back alley abortion vans, or coathanger abortions. True to utilitarian form, there is no need for a dilemma where only abortion-choice policy would achieve this goal—it’s still justified as long as that goal is achieved. To avoid the utilitarian fallacy, the arguer would need to show that liberal abortion choice policy is otherwise morally permissible or good. If it is admitted as “evil,” “lesser evil,” or just “not good,” then the coathanger argument comes unwound, using threats of unknown and conjectured evils to justify present, concrete evils.

However, this “ends justify the means” kind of thinking hasn’t shown all that. The “means,” abortion-choice policy, could still be horrifically evil. Abortion choice policy could still be so bad that it fails on its own demerits. According to prolife arguments, abortion-choice policy is precisely that, a horrible crime against humanity implicating the whole of America in such a vast and barbaric crime against humanity that the “coathanger” argument sounds silly in comparison.

Evidence #3 The Coathanger Argument Fails by Disanalogy.

One of the strange implications of coathanger argument is that we could apply known evils into the same rubric and achieve some weird results, results that prochoice defendants likely wouldn’t want to accept.

We could ban murder, but people are still going to murder. We could ban rape, but people are still going to rape. We could ban child molestation but people are still going to molest children. And if we banned all these things, that would force murderers, rapists, and child-molesters into riskier situations where they don’t just hurt or kill their victims, they might hurt themselves too. Banning these practices won’t stop these practices, and it most likely raises the risks for people who are determined to exercise their “right” to harm and kill their victims.

Do you see the problem? If abortion is not a right, if abortion is not itself moral, if abortion kills defenseless human beings by tearing them to pieces, chemically burning them alive, starving them to death, or crushing their skulls, then it makes good moral sense to ban the practice even if we admit room for some exceptions, such as mortal threats to the mother, or perhaps rape. Even “Murder” has exceptions, including self-defense or war-time situations. We can expect people who are still determined to treat their children-in-utero this way to be marginalized and pressured into dark and covert corners to make sure they can still kill their baby. But other women might instead opt against abortion, because the legal climate helps strengthen their resolve in favor of protecting their child. People should have to revert to covert avenues before they can find assistance in killing human beings.

To be sure, even a federal ban on abortion would not entirely prevent all abortions, but it would deeply discourage abortions, and quite possibly reduce the percentage to a rate comparable to the pre-Roe era. Banning abortion would add a measure of risk to abortion providers and women seeking abortion. This sad but likely reality must be admitted if we are to face this coathanger argument honestly.

Evidence #4 The Coathanger Argument Manipulates Women

The pro-choice position often mentions patriarchal abuses, domestic violence, rape, and various instances where men hurt women. Abortion-choice policy, they argue, is supposed to help level the playing field, protecting a woman’s right to her own body, and her own family planning decisions. Here the coathanger argument is commonly mentioned in justifying current abortion choice-policy as a new chapter of women’s liberation, closing that old chapter where women had to resort to illegal and dangerous coathanger abortions to exercise their bodily autonomy.

The problem with this narrative is that abortion choice policy may in fact be the more harmful option when compared to a general ban on abortion. It’s manipulative to women to use hypothetical and speculative harms relating to an abortion ban to pressure them into complying with the present, but demonstrably harmful, abortion-choice policy.

Abortion choice policy has done immeasurably more harm to women than pro-choicers let on. Within roughly two years after abortion was legalized, the number of abortions skyrocketed ten fold, from about 100 thousand to over 1 million, and that means a comparable increase in abortion-related risks. Abortion choice policy has facilitated countless cases of abortion-related depression, post-traumatic stress disorder (PTSD), physical complications like sepsis and uterine damage, infertility, and so on.

Abortion remains a terrifying correlate with homicide, with murder being one of the leading causes of death following abortion.[7] It’s not entirely clear why recent abortions correlate so heavily with homicide rates, but it is well known that in many cases the murderer had a history of abuse, was not her husband, and was not interested in settling down yet and raising a family. Perhaps the murderer had previously coerced her abortion, or perhaps she used abortion to keep her boyfriend or husband from abandoning her only to find out later that she chose the worse of two evils. Whatever the reasons may be, abortion is a demonstrable risk factor for harmful and scary things including homicide.

Abortion choice policy has not exactly fostered much “choice” for women who were coerced into abortion by their families or by the child’s father. Studies have shown that up to 64% of women who had abortions report that they were coerced. And up to 83% of women who had an abortion report that they would have rather kept the baby.

And, of course, abortion wasn’t exactly liberating for the 30 million or so fetal-girls that were killed in utero since 1973. Since those 30 million females are denied their very lives, and any subsequent choices, privacy, autonomy, healthcare, or well-being they might otherwise have exercised, abortion is therefore supremely oppressive to a huge portion of womankind. We may not know of any single policy in U.S. history that has harmed women more drastically and more tangibly than abortion-choice policy.

Abortion demonstrably harms women. Meanwhile, the coathanger argument attempts to fortify and protect the very abortion-choice policy. And what’s the reasoning? Well, banning abortion might increase the number of women who seek out back-alley routes to abortion. But that’s as much as we can say, because women are already seeking back-alley abortion, even while it’s legal. Abortion-choice policy has (apparently) fostered such a huge market for abortion that even with its legality enough women are still clamoring for abortions so desperately that criminals like Kermit Gosnell, Naresh Patel, and others, were able to operate for years in spite of gross negligence, malpractice, and in Gosnell’s case, homicidal intent. Meanwhile, numerous abortion clinics have broken federal and state medical regulations, running unsanitary clinics, using uncertified or untrained staff, using expired medicines, and failing to monitor, counsel, or properly inform patients of the risks involved in abortion.

Prochoicers may object that pro-life regulations shut down the better clinics and forced women into those unsafe and illegal clinics. But Gosnell and Patel’s clinics were in Philadelphia (PA) and Queens (NY), in two of the most abortion-friendly districts in the country! Prolife regulations and restrictions, where they exist, have overwhelmingly demanded that abortion clinics exercise fewer and safer abortion practices, thus reducing the effective risk factors for women.

Lastly, the coathanger argument does not just manipulate women by using threats of worse dangers to persuade compliance with present dangers, pro-choice advocates typically swirl in alarmist fears about religious fundamentalism, theocracy, and old-world patriarchalism. This is a fear-based tactic that’s supposed to rile women against the prolife position and comply with the intended outcome of the coathanger argument: liberal abortion choice policy. This manner of argument is blatant manipulation because no one seriously engaged in the abortion debate at the federal, state, or academic levels wants to revert to 19th century inequality laws, where women were denied voting rights, property ownership, and various civil rights (aside from abortion). Religious advocates can be found on both sides of the abortion debate. Secular and anti-religious advocates can also be found on both sides of the debate. And there’s no clear or reasonable cause for thinking that the prolife agenda would merge church and state, introduce theocracy, or elect the pope as the President. This point cannot be emphasized enough. Typical abortion-choice arguments retreat to a ridiculous strawman conception of prolifers, as if they want to repeal the 20th century’s worth of human rights legislation just because they want a general ban on abortion. Of course, more sensible and responsible pro-choice advocates understand this and would not be guilty of such egregious mischaracterizations. But these sorts of exaggerations are still common in the mouths of pro-choice advocates.[8]

Evidence #5 The Coathanger Argument Relies on Bad Numbers

According to the Coathanger argument, one would think that liberal abortion choice policy is a vital protection for women, helping to prevent abortion complications and maternal deaths. But despite a globally trending decline in maternal deaths (in pregnancy/birthing), the U.S. rate is rising. Prochoicers may argue that this is because of prolife legislation restricting abortion-access. But prolifers can equally argue that abortion access is still more liberal in the U.S. than most other countries that aren’t having this problem, and we still have more abortions—total—than all other countries except China and perhaps Russia. Liberal abortion choice policy does not guarantee that women will be overall safer from abortion-related complications. It only guarantees a high rate of abortion. The countries with highest total abortions all have broad liberal access to abortion.[9]

The estimated numbers of illegal abortions pre-Roe are also exaggerated. Former abortion doctor, and the cofounder of the National Association for the Reform of Abortion Laws (NARAL), Bernard Nathanson confesses:

“In NARAL (the acronym for the then-National Association for the Reform of Abortion Laws) we generally emphasize the drama of the individual case, not the mass statistics, but when we spoke of the latter it was always 5,000 to 10,000 deaths each year’. I confess that I knew the figures were totally false…But in the ‘morality’ of our revolution, it was a useful figure, widely accepted, so why go out of our way to correct it with honest statistics?”[10]

Also, the coathanger argument relies heavily on our relative ignorance about the medical statistics prior to Roe v. Wade. We touched on this earlier. Medical advances prior to Roe v. Wade vastly improved the care for pregnant women and drastically reducing the number of abortion and pregnancy related fatalities. The CDC reports only 39 pregnancy related deaths in 1972.[11] Now, we also noted how that number is likely an underestimate, but it’s still considerably lower than previous reports from the CDC using the same metric for pregnancy-related deaths in 1935, 1955, or 1965.

Evidence #6 Policy Affects Behavior

Another fault in the coathanger argument is that it’s advocates typically overlook or minimizes the known reality that legal policy affects behavior. We know that policy affects behavior because it already has.

When abortion was first legalized at a state level for special cases in Colorado, North Carolina, and California, in 1967, the abortion rate tripled—from about 2,000 to 6,000 abortions. But those low numbers are small enough to where they are subject to false attribution, and outside causes. By 1970, New York, Washington, Alaska, and Hawaii had legalized abortion-on-demand (or near equivalent). And sure enough, that policy shift corresponded with a 7-fold increase in abortions, from about 25,000 to 193,000. When abortion was first legalized at the federal level, the abortion rate jumped again from roughly 750,000 to about 900,000 the next year, a million more the next year, and an average of about 1.2 million yearly since then.[12] Only recently have the numbers started to drop below 1,000,00 annually.

Liberalizing abortion policy appears to have stimulated whatever practices were causing unwanted pregnancies, whether that was misusing contraceptives, failing to use contraceptives, the contraceptives didn’t work, or just “second guessing” one’s planned pregnancy. Turning the tables, however, we have no great reason to expect women to continue at the same rate of unwanted pregnancies if abortion were banned.

If abortion were banned tomorrow, a lot of prolifers would be personally unphased since they had no plans on getting an abortion, and have no need for one in the foreseeable future. We can also expect that some hardline prochoicers would only grow more fervent, perhaps getting pregnant for the sole purpose of having an illegal abortion—as a political statement.

But there are also liable to be a lot of women in the middle, along the spectrum of moderate prochoicers and moderate prolifers, who would either carry their child to term, refrain from unsafe sex, or refrain from intercourse entirely, because the federal policy lent just enough social pressure to help them avoid abortion. In practice, even many prochoicers will admit that abortion is a tragic and unpleasant experience and they’d avoid it if they could. But, as long as it’s legal, they will conduct themselves in such a way that they can always resort to that “escape hatch” if necessary. For those women, if abortion were generally banned, many of them would change their behavior either for fear of punishment (a fine, probation, jail time, etc.) or perhaps because they adapt their sense of social mores, or shift to different moral foundations, in accordance with the new social standard. People will more easily make the connection that because abortion is illegal it is most likely bad.

We don’t even have to dip into the metaethical foundations here. People tend to acquire some sense of right and wrong, in part, from social standards, and we have no reason to expect a general ban on abortion to operate any differently.

Evidence #7 Abortion is Never Safe

The last and most crucial point to be made here is that abortion is never safe, whether legal or illegal. Legalizing abortion can and has fostered a higher rate of abortion, hence less safety. It’s less safe to the mother in that she incurs all the potential risks that come with the abortion procedure, even though abortion is purely elective surgery in about 98% of cases (i.e., there’s no pending physical threat to the mother).

And it’s absurd to call abortion “safe” with regard to the child. The very notion of “safe” abortion is self-contradictory, like a “harmless murder.” It only makes sense to people who’ve already dehumanized and dismissed the life (and potential rights) of the child. If you are familiar with pro-choice terminology, and the typical means of describing the child-in-utero, you have seen how far people have gone to treat a fellow human being like a subhuman blob unworthy of life. Meanwhile, abortion kills a morally and legally innocent, typically healthy, defenseless, non-threatening, living human organism, a homo sapiens, and fellow member of the human race. Abortion kills human beings.

Now, we can grant that it’s more safe to the mother to have an abortion in a sterile professional medical clinic than, for example, a coathanger abortion. But the coathanger argument errantly assumes that those are the points of comparison: a safe clean clinic versus a dirty dangerous back-alley. We’ve seen above, how federal policy has helped generate more of those abortions in the first place, including legal and illegal abortions. The current federal policy has led to vastly more legal abortions—which tears children-in-utero apart limb from limb, crushes their skulls, starves them to death, and desecrates their corpses in horrific ways, all while introducing unnecessary risks to the mother including sepsis, uterine damage, and psychological trauma. And federal policy has also corresponded with a thriving black market, and DIY (do it yourself) abortions.

Comparing legal to illegal abortions we find that, “Any marginal improvements in the safety of legal abortions, as compared to illegal abortions, are more than offset by the astronomical increase in the number of women exposed to the inherent risks of induced abortion, legal or illegal.”[13]

Conclusion

Summing up things, the coathanger argument hangs on several mistaken assumptions the most dangerous and dehumanizing of these being the wholesale oversight of imperiled fetal children. The coathanger argument also fails by committing the utilitarian fallacy, disanalogy, and using faulty numbers. But, it’s hard to excuse the most glaring omission, the persistent and willful assault aimed at fetal humans. Add to that fact how current liberal abortion choice policy helps foster a wide range of dangers and risk factors for women, including medical risks inherent to the abortion procedure, to socio-psychological risk factors, as well as the current thriving black-market abortion industry, we have overwhelming reason to think that the coathanger argument serves the greater harm of women. It does not serve their greater good. When a policy is generating a culture of abortion that psychologically and physically traumatizes countless women, while  killing roughly 500,000 females in utero yearly, it’s a little hard to take it seriously as a “feminist” victory.

The coathanger argument may have some good intentions behind it, and for all the critiques mentioned above, we can all agree that women’s lives matter. Struggling mothers need tons of support, understanding, and respect. They need communities and families, as well as state and federal policies that help them overcome adversity. No one in this debate wants to see women harmed unnecessarily, or see women pressed into dangerous and back-alley settings as their only option. And those are great reasons why we should reject the general premises of the coathanger argument and shift allegiances to the prolife side. Liberal abortion choice policy hurts women. Abortion hurts women.

***Do you see in misprints, oversights, or errors? I welcome your feedback below. Here at AbortionHistoryMuseum we aim at accuracy. Whether you agree or disagree, we seek fairness, honesty, and factuality in all that we print. So please share with us any ways we can improve***

Sources

[1]Other great sources on this subject are: http://pjsaunders.blogspot.com/2012/06/how-many-women-really-died-from.html and http://abort73.com/end_abortion/what_about_illegal_abortions

[2]https://www.cdc.gov/reproductivehealth/unintendedpregnancy/

[3]http://www.johnstonsarchive.net/policy/abortion/graphusabrate.html and http://www.nrlc.org/uploads/factsheets/FS01AbortionintheUS.pdf

[4]Quoted in, https://www.theatlantic.com/politics/archive/2013/04/kermit-gosnell-and-intelligence-failures-contd/275092/

[5]Perhaps men may play a coercive or otherwise influential role. It could be that women are smart, self-aware, and generally able to handle themselves regardless of the laws permitting or banning abortion, but patriarchal oppression would force women to get coat-hanger abortions (or back alley abortions) if they didn’t have safe legal access to abortion. However, this rebuttal goes both ways. Legalized abortion certainly doesn’t constrain coercive men, rapists, or bullies, indeed, it might encourage them to act worse since federal law permits them to influence their girlfriends, lovers, and wives to acquire abortions. And it’s notoriously hard to prove illegal coercion between lovers.

[6]For more on the problems of consequentialist or utilitarian thinking see: https://intelligentchristianfaith.com/2015/08/18/1316/

[7]See http://www.politifact.com/texas/statements/2011/dec/26/kyleen-wright/anti-abortion-activist-says-murder-no-1-killer-pre/ and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449204/ . see also, I.L. Horton and D. Cheng, “Enhanced Surveillance for Pregnancy-Associated Mortality-Maryland, 1993-1998,” JAMA 285(11): 1455-1459 (2001); see also J. Mcfarlane et. al., “Abuse During Pregnancy and Femicide: Urgent Implications for Women’s Health,” Obstetrics & Gynecology 100: 27-36 (2002).

[8]For example, see: http://religiondispatches.org/personhood-agenda-is-theocracy/ and http://www.prochoiceactionnetwork-canada.org/abortioninfo/misconce.shtml

[9]Reports vary. It appears that China is usually #1, with some combination of the U.S., Russia, Vietnam, and Japan next, followed by former Russian block countries like Ukrain and Belarus behind them. See: http://www.perfectinsider.com/top-ten-countries-with-highest-abortion-rate-in-the-world/ and http://media.wix.com/ugd/cacd2b_7806916e82d547378e78f74fb3dd9383.pdf

[10]Quoted on page 1 of http://www.grtl.org/docs/roevwade.pdf. Source: Bernard Nathanson, Aborting America (Doubleday, 1979), 193.

[11]Morbidity and Mortality Weekly Report (MMWR). (Centers for Disease Control and Prevention, Sept. 4, 1992, Volume 41), Table 15.

[12]For reasons stated earlier (shame, secrecy, fear of prosecution, etc.) it’s difficult to get exact numbers for the abortion rate prior to its legalization. People aren’t exactly eager to risk prosecution just to fill out a CDC survey. Some estimates ran as high as one million, but that’s unlikely since the abortion rate would then have dropped immediately upon legalization (744,610). The introduction of the birth control pill to the general market, with expanded legal access to contraceptives, combined with various cultural factors in the “free love” movement undoubtedly fostered a growing trend towards libertine sexual practice, so it’s unlikely that the illegal abortion rate in 1972 was terribly low (say, 10,000 or fewer). The more conservative estimate is around 100,000. Most abortions, in that event, would have been done in states that had already legalized abortion (say, around 650,000 abortions) across 19 different states. Furthermore, one need only stretch back to 1969 to find a time when the abortion rate was likely 100,000 or lower. So, it’s not unreasonable to suggest that liberal abortion choice policy, at the state and federal level, facilitated a 10 fold increase in abortions.

[13]See Myth#5 in http://afterabortion.org/2011/the-truth-about-back-alley-abortions/

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The Child-In-Utero, A Medical-Scientific Analysis

I.      Medical/Scientific Analysis
A.    What is Pregnancy?
Having a child/offspring developing in the body
Conception/Fertilization View

Strictly speaking, the most exact and technical definition of pregnancy is that it starts at the fertilization of the egg and sperm gametes in mother’s fallopian tube. A.K.A., conception. The new human life first begins. This stage is a radical break from other life, a new organism is formed, genetic and biological individuation occurs, and all the functions of a living human organism are begun. The majority of medical doctors agree on fertilization as the start of new human life and thus, the technical start of pregnancy. But they disagree about when to date “pregnancy” since the mother’s body may not have changed yet, fertilization is often unknown/ invisible to the mother, and practically they are better served by allowing a range for where pregnancy begins, i.e., estimating due-dates.

1. Last Menstruation Doctors often date pregnancy at 1st day of most recent menstrual cycle. This dates pregnancy up to 2 wks before conception. Practically useful for projecting due-dates, etc. However, this is not very exact since a women would be considered “pregnant” before having a child is conceived.
2. Ovulation Release of the egg to travel down the fallopian tube. During this stage pregnancy is thought to happen if there is fertilization. As with the menstruation definition, this is helpful for estimating due dates but isn’t very exact. Only if ovulation happens at the exact same moment as fertilization would this be a good technical definition of pregnancy.
3. Conception/Fertilization —>
4. Implantation Some suggest that pregnancy begins when the zygote implants in the uterine wall. This definition is used for justifying abortion pills as “contraception” (i.e., prevention of pregnancy). This definition, however, defines leaves a women officially “non-pregnant” for several days before the conceptus implants.
5. Chemical Detection Mother now tests positive on pregnancy tests. Practical method of determining whether one is pregnant but not when it began.
6. Quickening Detection of fetal movement. Classical method of determining pregnancy. This view has become outdated, falsified by way of modern fetology. While she is indeed pregnant at this point, she was biologically pregnant long before the fetal human moves, detectably, on his or her own.
B.     What Is the Preborn/Unborn?

Through every stage of fetal development, from conception to birth, the fetus is . . .

1. Biological life—has all features of life: environmental response, self-direction, digest., excretion, reproduction
2. Organism—distinct from homogenous or unorganized cells (organs, tissues, tumors, follicles, etc.).
3. Homo Sapiens –member of the genus homo and species sapiens.
4. Human—genetically and biologically human
5. Human being—from conception to birth it is developing member of the human race. homo sapiens.
5. Distinct individual—it’s a genetically distinct individual, different from the mother potentially having different blood type, gender, etc.
6. Child-in-utero–“Child. Progeny; offspring of parentage. Unborn or recently born human being” (Black’s Law Dictionary , 5th ed.; “Unborn Victims of Violence Act of 2004” , a.1. )
7. Legally Innocent—having no legal offense that can rightly be attributed to it.
8. Morally Neutral—having no active moral ability, much less moral culpability (guilt).
9. At a particular developmental stage—Zygote/Blastocyst/Embryo/Fetus.  * “Fetus: a human being or animal in the later stages of development before being born” Merriam-Webster [On-line], 2015.
10. The preborn organism is a genetically distinct individual living human being. A child-in-utero, legally innocent, and morally neutral.
11.  Regarding arguments for fetal “personhood” see below, “H. The Child-in-Utero and Personhood”. Some argued that the fetus is a person, thus having/deserving full rights of personhood (i.e., life, liberty, pursuit of happiness, etc.). This route may be possible, but “person” is a legally/philosophically defined term whereas biological humanity is in the domain of science. It can be objectively defended. Since human rights are predicated on humanity, and the original rights of “life, liberty, pursuit of happiness” are met w/ “all men are created equal”—these “men” (i.e., humans) are equal from creation onward, i.e., at conception.
C. What Is a Conceptus?
The fetus at earliest developmental stage, termed “conception.” Also called, the zygote or blastocyst. Conception is the moment of fertilization where the male sperm and the female egg meet and first mingle DNA. The 23 chromosomes of the mother and the father pair up, making 46 chromosomes that constitute a genetically distinct living human organism.
D.    Quotes Supporting the Conception Definition of Human Life
1. “[It is] a scientific fact, which everyone really knows, that human life begins at conception.” California Medical Society, in California Medicine: The Western Journal of Medicine, 113, no. 3 (1970), 67-68.
2. “A zygote is the beginning of a new human being (i.e., an embryo).” And “Human development begins at fertilization, the process during which a male gamete or sperm (spermatozoa development) unites with a female gamete or oocyte (ovum) to form a single cell called a zygote. This highly specialized, totipotent cell marked the beginning of each of us as a unique individual.” Keith L. Moore, The Developing Human: Clinically Oriented Embryology, 7th ed. Philadelphia: Saunders, 2003. p. 16, 2.
3. “Development begins with fertilization, the process by which the male gamete, the sperm, and the femal gamete, the oocyte, unite to give rise to a zygote.” T.W. Sadler, Langman’s Medical Embryology, 10th ed. Philadelphia: Lippincott Williams&Wilkins, 2006. p. 11.
4. “[The zygote], formed by the union of an oocyte and a sperm, is the beginning of a new human being.”
Keith L. Moore, Before We Are Born: Essentials of Embryology, 7th edition. Philadelphia: Saunders, 2008. p. 2.
5. “Although life is a continuous process, fertilization (which, incidentally, is not a ‘moment’) is a critical landmark because, under ordinary circumstances, a new genetically distinct human organism is formed when the chromosomes of the male and female pronuclei blend in the oocyte.” Ronan O’Rahilly, & Fabiola Müller, Human Embryology and Teratology, 3rd ed. NY: Wiley-Liss, 2001. p. 8.
6. “Human embryos begin development following the fusion of definitive male and female gametes during fertilization… This moment of zygote formation may be taken as the beginning or zero time point of embryonic development.” William J. Larsen, Essentials of Human Embryology. New York: Churchill Livingstone, 1998. pp. 1, 14.
7. “It is the penetration of the ovum by a spermatozoan and resultant mingling of the nuclear material each brings to the union that constitues the culmination of the process of fertilization and marks the initiation of the life of a new individual.” Clark E. Corliss, Patten’s Human Embryology: Elements of Clinical Development. NY: McGraw Hill, 1976. p. 30
8. “The term conception refers to the union of the male and female pronuclear elements of procreation from which a new living being develops.” And “The zygote thus formed represents the beginning of a new life.” J.P. Greenhill, & E.A. Friedman, Biological Principles and Modern Practice of Obstetrics. PA: W.B. Saunders, 1974. pp. 17, 23.
9. “Every time a sperm cell and ovum unite a new being is created which is alive and will continue to live unless its death is brought about by some specific condition.” E.L. Potter, & J.M. Craig, Pathology of the Fetus and the Infant, 3rd edition. Chicago: Year Book Medical Publishers, 1975. p. vii.
10. “Every baby begins life within the tiny globe of the mother’s egg . . . . It is beautifully translucent and fragile and it encompasses the vital links in which life is carried from one generation to the next. Within this tiny sphere great events take place. When one of the father’s sperm cells, like the ones gathered here around the egg, succeeds in penetrating the egg and becomes united with it, a new life can begin.” Geraldine Flanagan, Beginning Life. New York: DK, 1996. p. 13.
11. “Biologically speaking, human development begins at fertilization.” Biology of Prenatal Development, Nat. Geo, 2006.
12. “The two cells gradually and gracefully become one. This is the moment of conception, when an individual’s unique set of DNA is created, a human signature that never existed before and will never be repeated.” In the Womb, National Geographic, 2005.
E.    Arguments and Quotes Supporting the Fetus as “Human Being”
1.      The “human” status of the child-in-utero is already established scientifically (see above), yet since it’s an organism it is an individual being instead of just a partial or potential being (a tire isn’t a “car” but a car part. Neither is a blueprint of a car the same thing as a car, is only a potential car). As such it is literally a “human” and a “being” a human being.
2.      “Human being” is the normal title for any member of the genus and species homo sapiens.
3.      “Human being” is the normal title for any member of the human race. And all members of the genus and species homo sapiens are in the human race.
4.      Human beings go through developmental changes, without sacrificing humanity or individual “being” status. “Human being” status can accommodate a wide variety of changes including maturation, growth, and actualizing genetic potencies. A fetus can look very different from another stage of human development without necessarily sacrificing any humanity in the process.
5.      “Human being” distinguishes the human animal from other animal species. Human being does not distinguish stages of development within the human species.
6.      “Human being” can be used to refer to things like, “citizen” or “adult” yet those would be human beings by extensional definition (i.e., examples of a “human being”) without exhausting the intentional definition (i.e., all the essential properties, relations, or states that characterize a human being). Just as adults exemplify “human being” at an adult stage, so fetuses exemplify “human being” at a pre-natal stage.
7.      Defining “human being” in a radically exclusive sense, where developing humans do not even count as “human being” raises unnecessary challenges to inclusive definitions found in, for example, transhumanism and other bioethical fields like bionics, cloning, genetic engineering, etc.
8.      Oxford English Dictionary—“a man, woman, or child of the species homo sapiens, distinguished from other animals by superior mental development, power of articulate speech, and upright stance.” And the fetus is a “child-in-utero” by legal and common definition.
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Guide for Discussing Abortion – Central College Students for Life – 9.8.2016

Hey gang,

I just could not get the discussion guide printed despite wrestling with printers at home and at the office. So, I’m making it available online. Discussion Guide – Central College Students for Life – 9.8.2016

Sincerely,
John

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