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

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

Criterion #1: Disprove the Right to Life

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

“What is the status of the unborn?”

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

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

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

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

Criterion #2 Prove the Right to Kill

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rebuttal and Summary

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

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

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

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

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

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

Endnotes

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

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