Biologically speaking, human beings are classified as a kind of animal. Specifically, we are animalia (kingdom), chordata (phylum), mammalia (class), primate (order), hominidae (family), homo (gensus), sapiens (species). Often our status as animals is not terribly helpful in moral or legal discourse. But in at least one case, the ASPCA intervened on behalf of human beings establishing a precedent that could have some interesting implications for the contemporary abortion debate.

In the middle of the 19th century, the United States did not have much legal protection against child abuse. So long as children were not killed by their guardians the state was reluctant to intervene. Those were different times back then, and traditional–some would say archaic–family roles were the norm. So children could be put to work at a young age, physically abused by one’s parents, neglected, and so on. Children did not have the legal rights back then that they do today. But all of this would begin to change in 1874. West’s Encyclopedia of American Law (2d ed., Gale Group, 2008) reports:

In 1874, a badly beaten girl known only as Mary Ellen became the first legally recognized victim of Child Abuse in the United States. Before 1874, society offered little protection for minors. Children were considered the property of their parents, and neither the government nor private individuals intervened when they were injured, overworked, or neglected. Mary Ellen was rescued from unfit parents only after the American Society for the Prevention of Cruelty to Animals (ASPCA) stepped in on her behalf. ASPCA advocates pointed out that if Mary Ellen were a horse or a dog, her mistreatment would be prohibited by statute. A judge agreed that the young girl deserved at least the same protection as an animal

Despite having ambiguous or otherwise problematic legal standing, this girl, Mary Ellen, had to find legal protection not as a human being but instead as an animal. At the time, there were stricter (or clearer) legal restrictions on animal abuse than on children. And so, this monumental case established an area of legal protection for children, against their parents and guardians on the basis of animal rights.

To my knowledge, no court case has yet connected abortion to injunctions against animal abuse. Ethically, one may grant that some cases of abortion might be justified on the basis of saving the mother’s life, but even then, one might object if the abortion involves additional abuse. For example, it is common practice to euthanize sick or dying pets. And meat-eating is still a common practice. But in both of these cases, there are legal restrictions on how one goes about killing and disposing of the animals. Setting aside, for the moment, the legal nuances, and focusing on the ethics, we can probably agree that it is unethical to euthanize a dog or cat or horse  by way of a hour long acid burn or by tearing it apart limb from limb. That defeats the purpose of a mercy killing (euthanasia–eu [good] thanatos [death]). In the case of meat eating, torturous slaughtering methods are recognized as unethical and are liable to violate numerous healthcodes. The effort there is to make the death as quick and painless as possible.

Some abortion methods currently practiced are relatively painless (physically) for the mother, and occur before the child-in-utero is developed enough to have any nerve endings. Such measures can weaken the accusations of “abuse”, but they do not resolve it. Even though those cases would not involve pain or torture (for the child), killing is still abuse. It’s just not necessarily an abuse that that the victim knows or feels to be abuse. Abuse is not simply a matter of pain and suffering, but goes further into the realm of harm. People can be harmed without any physical pain or psychological suffering so long as their well-being, potential, or person is somehow damaged. A drug-addict can abuse himself, or be abused by someone else even while feeling painless euphoria. “Pain and suffering” are not the sole measures of harm. The child-in-utero can be harmed, and so, can be abused, even without (physical) pain or (psychological) suffering. Even if no torture was involved, that child-in-utero is manifestly abused since ALL of its unique potential as a human being has been forever halted. It’s only value now, would not be as a subject, but as an object such as medical waste or fertilizer.

So it is established that the child-in-utero is a human animal and is abused in abortion, even when it is early stage abortions when the child can’t yet feel pain. Unfortunately, many abortions fall well outside of even this scenario. It is thought that somewhere around the 20-24th weeks of gestation the child-in-utero has sufficient neural wiring to be able to feel pain. On this basis several states have passed “fetal pain” bills, banning abortion on demand (with some exceptions) from that point forward. The “fetal pain” bills could be bolstered, then, by admitting the technically correct description of abortion as “animal abuse.” It is abuse in that it harms the child-in-utero by killing it, and in cases of sufficient neural development, by physically hurting it too. Furthermore, many late term abortions would be considered torture if done to anyone’s pet–much less a protected animal or endangered species.

Dilation and curettage, for example, involves a circular blade, called a curette, used to dismember the human fetus piece by piece and then sucking each piece through a surgical vacuum. The practitioner may have to inspect the remains to make sure that all the body parts have been removed. This is to assure that no dead tissue is left inside posing a later health risk to the mother. The procedure is, for at least some doctors, emotionally trying as the fetus can be developed enough to look like a small baby. It is no stretch of the term to call something “animal abuse” which involves dismembering a still-living animal and then sucking it down a vacuum hose. Such cases go beyond simply “harm,” beyond “pain and suffering,” and into “torture.”

Someone might object that we allow meat-eating in the U.S. We are numb to those kinds of animals abuse, such as painful slaughtering techniques, poor cage and pen conditions, poor feeding conditions, genetic and medical tampering, etc. There is a potentially legitimate case here, but it would be tangential to the issue. If animal rights activists are to be consistent in promoting the life and well-being of all animals, at least the higher-order (more intelligent) animals, then they have every reason to AGREE that abortion is animal abuse and should be stopped. No one here is saying that animal abuse is good and ethical. There would just be disagreement over the particular ethics of meat-eating, and whether human beings have a relevant kind of superiority over the rest of the animal kingdom to justify meat-eating or even to exempt certain practices from “animal abuse.” Without getting side-tracked on this issue there is, at least, a long-standing precedent and nearly universal understanding that even if human beings are animals, we are not on the same level as animals. Hence it’s more regrettable to lose one’s child than to lose one’s dog. And we can eat fish and fowl, but not human fetuses. This understanding has legal standing. Legally speaking, it’s not animal abuse to slaughter a cow in a meat-packing plant. Moreover, a meat-packing plant might get shut-down and it’s staff face criminal prosecution if they were known to dismember healthy live cattle limb by limb and suck their parts down a vacuum hose and throw them away. Some kinds of abortion exceed legal standards for killing cattle in a meat-packing plant.

Abortion practice as is currently legal in different parts of the United States permits harming animals, causing the pain and suffering of animals, and torturing animals. Abortion is clearly animal abuse. Perhaps we could use another legal precedent prohibiting child(in-utero) abuse because it is also animal abuse.