Why Abortions Are Still Wrong and Should be Illegal (Part Three)

I recently began a series looking at a new article/book released by pro-choice philosophers Nathan Nobis and Kristina Grob (hereafter NG). You can read part one here and part two here. And if you’d like to read the book before you read my responses to it, you can read it for free online here. This next section is quite lengthy, so I’ll split it in half.

Now we get to the portion of NG’s book where they set out to justify the subtitle and show why most abortions are not immoral and why all of them should be legal. I will begin by defending the pro-life arguments they criticize and finish with criticizing the pro-choice arguments they defend.

Pro-Life Argument #1: Fetuses are human. NG begin by attacking an argument that fetuses are human and are, therefore, wrong to kill. NG are right to criticize this argument as easy to find counterexamples to. After all, not everything that is human (in the adjective sense) is wrong to kill. Tumors are human but are not wrong to kill, nor are human cells or tissue in a petri dish. The problem with NG’s rebuttal, though, is that no one actually makes the argument they criticize. Pointing out that fetuses are human is only one step in a cumulative case of showing that fetuses are wrong to kill. Human fetuses and embryos are living, independent organisms of the human species. All of this goes in to show why it is wrong to kill them because fundamentally, a human embryo is no different than the adult that he eventually becomes. So NG have subtly erected a strawman to attack and knocked it down.

Instead, let’s take this argument from Scott Klusendorf’s book The Case for Life, which makes a better, stronger argument against abortion based on the humanity of the fetus:

• It is wrong to intentionally kill an innocent human being. 
• Abortion intentionally kills an innocent human being. 
• Therefore, 
• Abortion is wrong. 

This argument better explains why humanity is so important to pro-life advocates and weighs so heavily in their arguments. If it is wrong to kill an innocent human being in uncontroversial cases, such as adults and children, in which even NG have expressed agreement in the preface to their book, then if it turns out that human fetuses and embryos fit the definition of “innocent human being,” it would be wrong to kill them, too. Of course, such a claim needs to be defended but the pro-life advocate will do so. That’s why even the humanity argument is, itself, used in a cumulative case against abortion. That case goes something like this: 1) All human fetuses are human organisms, 2) all human organisms are persons, 3) all persons have fundamental rights such as the right to life, so 4) human fetuses have fundamental rights such as the right to life.

Before moving on, NG try to address the concept of human rights and how they think pro-life people have gotten the concept of “rights” wrong. But all this discussion does is show how NG have fundamentally misunderstood this basic pro-life argument. No, cells in a petri dish don’t have human rights, but that’s because they are not human beings—they are parts of humans, not a full human on their own. My individual parts don’t have rights but I do, as a whole, complete, individual human. So while they are right that simply being biologically human does not grant a thing rights, neither is the pro-life person making this claim. Our rights are “human” rights, but other ways of saying this are “fundamental” rights or even “basic human rights.” This is because the claim is not that we have rights because we are biologically human, but we have rights because our rights inhere in us based on the kind of thing we are. As Patrick Lee argues in his book Abortion and Unborn Human Life, being “human” is not merely a biological category. There is much more that comes with being human, such as our human nature. There are metaphysical realities to being human; our unborn share in our fundamental human nature, so they also have fundamental, basic human rights.

So it’s not our psychological characteristics which are important, as there is much more to the person than our psychology. Our bodies are just as important to us as persons. Our bodies are how we interact with the world around us, and our minds are how we interpret those experiences. Plus, the fact that we are biologically continuous with ourselves throughout our entire lives is certainly significant. So while I do agree in some sense that calling them “human” rights isn’t accurate enough (after all, intelligent extraterrestrials would certainly have rights, as would spiritual beings, if they exist), I don’t agree that we should start calling them “person rights” or “conscious-being rights” because not all conscious beings are rights-bearing entities (and again, NG haven’t exactly defined consciousness for us to know what other kinds of beings would be included or just when, exactly, humans become persons). Dogs, for example, are conscious entities, and while they should be protected, killing a dog, even accidentally, is not the same kind of act as killing a human, even accidentally. Killing the human brings with it stricter punishments than killing the dog. So while I agree with them, I think calling them “fundamental rights” is perfectly fine because that term does show how our rights belong to us: fundamentally. They do not come and go when I gain or cease to have some property. They are always there.

Pro-Life Argument #2: Fetuses are human beings. NG have anticipated much of the response I gave above, since pro-life advocates respond similarly when presented with the charge NG have given. NG’s responses, though, don’t fare much better than their original criticism.

NG begin by reiterating that it’s not always wrong to kill a human being (e.g. you can kill in self-defense). So the question is, what is it about fetuses that makes it wrong to kill them if it is wrong to kill them? NG prefer their depiction of why it is wrong to kill adults and children, because they are conscious and feeling, and if we were in a permanent coma, death wouldn’t make us any worse off. But I already showed in section three why their depiction of the wrongness of killing is inadequate.

They also argue that their depiction shows why it is wrong to kill in a simple, common-sense way. But of course, the pro-life depiction of why it is wrong is also simple and common-sensical. If someone asks me why it’s wrong to kill me, my answer will be something like this: “it is wrong to kill me because I am a human being,” and if you stop and think about it without any prior philosophical reflection and no prior commitment to the morality of abortion, that may be the conclusion you immediately draw. Where it gets more complex is why it is wrong to kill me because I am a human being, but the same problem arises for their view. It may be simple and common-sensical, to them, to claim it’s wrong to kill me because I have experiences, I can feel, etc., but answering the question of why that makes it wrong to kill me requires more work. And their statements about why rocks, plants, etc., don’t have rights fails for the reason I showed in section three: they are making a simple category error and comparing things (rocks, plants, etc.) with things which are not relevantly like them (human embryos and fetuses).

NG turn to reasons that pro-life people give for why it is wrong to kill human fetuses despite their never having been conscious or having any feeling or awareness. The first supporting argument they look at is that human fetuses develop continually into the adult so it is the same being at all points in its development, which should seem familiar as it is a supporting statement I used in my defense above. However, they reply, this can’t be the explanation since we adults have different physical, cognitive, emotional, and moral characteristics than we had as fetuses (and as children). So even if we were the same being over time, that doesn’t show that fetuses have the same moral rights we do, as rights change over time.

NG actually make two errors in reasoning here. First, they confuse the concepts of accidental and essential properties. It’s true that I am now 5’11”, have gotten bigger (and rounder) since I was a fetus, I can now recite the English alphabet, engage in higher levels of thinking, etc. But all of these are accidental properties—they are true things about me but are not what make me, me. I would be the same person, for example, if I grew up speaking German instead of English or if I peaked physically at 5’6” instead of 5’11”. However, the essential property I have now, my human nature, was present in me as a fetus, which means since that essential property never changed, “I” never changed from anything non-human into something human. I was human from the beginning and had my rights from the beginning. In fact, NG even admit they have different characteristics now than they did as children, so they can’t use their argument to show that they are different than they were as fetuses unless they also think they were not the same numerically identical person as children than they are now. That seems to be a bridge too far.

Second, NG make the error of confusing fundamental rights with legal rights. It’s true that some of my rights have changed since I was younger. I can drive a car now and I couldn’t as a fetus. I can vote in Californian and American elections and I couldn’t as a fetus. But these are all legal rights. Legal rights are granted to us by the government and often come to us through maturity. I couldn’t drive or vote as a fetus because I had not reached the proper level of maturity. Fundamental rights are not granted by the government and, therefore, every government is obligated to respect them even if I’m not a citizen. These rights include (but are not limited to) the right to life, the right to freedom, the right to self-defense, etc. These rights do not come and go. The right to life is a fundamental right, so if fundamental rights inhere in us based on what we are, not on what functions we can perform, and if human fetuses and embryos have the same fundamental nature adults do, as pro-life people argue, then human embryos and fetuses have the right to life, even if some of their other rights haven’t yet been granted due to immaturity.

The second argument that NG look at actually follows from my previous response: the argument that human beings have rights essentially and not accidentally. In contrast, NG view rights as accidental to the body but essential to the mind. It doesn’t seem clear, though, how one can be a “conscious being” without also being an “embodied being.” The idea that your mind can have essential rights but your body can’t seems incoherent to me, as both parts of me go in to make up the same human person. If they don’t believe they are identical to the body, then they have some explaining to do about what happens to that fetus they later came to occupy. As Alexander Pruss argued, either that fetus lived or died. But any changes the fetus went through were changes that were within its internal programming to undergo, and things don’t die by undergoing changes that are within their internal programming to undergo. So clearly the fetus didn’t die. So is it still alive? If it is, there are only two possibilities. It is still alive but separate from you or it is still alive but identical to you. If it is still alive but separate from you, this leads to absurdities. It violates a plausible law of physics since two physical objects cannot occupy the same space at the same time. It also leads to other absurdities, such as that rape is not a crime against a person but is a mere property crime against one’s body, and that you have never actually kissed your significant other. Since the fetus cannot be dead, and the fetus cannot be alive but separate from you, the fetus must be alive and identical to you (Alexander Pruss, “I Was Once a Fetus: That is Why Abortion is Wrong”).

Regarding the claim that rights inhere in us because of the kind of thing we are, rational beings, NG state that the argument seems to be question-begging. It is not, of course. In fact, many books and articles have been written regarding the defense of things like natures and how rights interact with us as human beings. It is, at least, abstract, as NG state, but lots of things are abstract that we take for granted. Rights, themselves, are abstract, so no matter how you account for them, your reasoning will be abstract. NG go on to claim if you define human beings as rational, even though only some human beings are rational while others are not, then why not simply define human beings as non-rational, since some human beings are not rational while others are. After all, why is it that the rational human beings get to define what being human is for all human beings, the ones who are not rational and the ones who are?

This profoundly misses the whole point, though. As I have argued above, fetuses are not “not rational,” like rocks and fish, they are “pre-rational.” Part of being a human being is development—you start out with a single cell (and other parts, such as the zona pellucida), and through development which is self-directed, you develop your body parts: your organs, your blood, your limbs, etc. Humans are on a path of development, which means that fetuses are not simply non-rational humans—they are humans which have the inherent capacity for rationality which just takes time to develop to be able to exercise it. So human embryos and fetuses are every bit the rational animal that human toddlers and adults are, they just don’t have the present means by which to exercise it. So this isn’t a case of rational humans defining what rationality is for all humans, even non-rational ones. It’s to look at human nature and say, “what is it that makes humans uniquely human?” In other words, what is the essence of being human? As the ancient Greeks taught, the way you determine something’s essence is by asking what sets it apart from other similar things. Human beings are animals, but what sets them apart from other animals is that we are rational. So the essence of humanity is to be a rational animal. This means that all human beings qualify as rational animals because under ordinary circumstances, all human beings are on a path to become more and more rational as they develop. This is not simply a path that only some humans are on, it is a path that all humans are on, even though some, tragically through disease, injury, or genetics, fail to become rational and are unable to fully flourish as human beings. This is what it means to say that it is in the nature of humans to be rational.

So then the question becomes, why does that rationality determine our rights? The answer is because with rights come duties. If I expect my right to life be respected, I have a duty to respect the right to life of others. Animals have no such duties because they don’t have the rationality to understand them, and since animals have no such duties, they also have no rights which we are obligated to respect.

So contrary to NG’s claim, this does not mean that rights “trickle down” regressively from our future rational state to our present non-rational state. That would be absurd. What it means is that since human nature entails rationality, and human embryos/fetuses are on a self-directed path of human development which includes eventually developing the ability to be rational, human embryos/fetuses are inherently rational beings who just need time to develop that rationality; and they will, all things being equal.

Also contrary to NG, this does not entail that we must never allow a comatose person to die. We are morally obligated not to kill such a person, but this doesn’t mean that we are always obligated to preserve life when it becomes more harmful to the person than to allow nature to take its course. We must never kill a human being, but if keeping him on life support or otherwise providing care is futile, then it would be more harmful to continue providing that futile care than to simply allow nature to take its course.

Furthermore, the existence of anencephalic fetuses does not refute this idea. Again, letting an anencephalic fetus die is not impermissible (especially since it is not possible at our present level of medical expertise to save him), but to kill him through abortion would be impermissible. This doesn’t show that anencephalic fetuses are a different kind of being than us. Anencephalic fetuses are still human beings who have tragically failed to fully flourish as humans should. To consider them non-human (which is what saying they’re a different “kind” of being than we are is to say) is ableist. A human does not become a non-human just because their disability to too severe.

Pro-Life Argument #3: Fetuses are persons. Here NG address the pro-life argument that the unborn are wrong to kill because they are persons, and persons are wrong to kill. They, of course, disagree with this argument. But what are their reasons for doing so?

Well, first, they say we should think about what it means to be a person and whether we ever cease to be persons. Many people think our personhood ends when you die or go into a permanent coma. And if some religions are right, that there is a life after death, presumably the person would continue on without their body in some sense. This seems to imply that personhood is defined by a “rough and vague set of psychological or mental, rational and emotional characteristics: consciousness, knowledge, memories, and ways of communicating, all psychologically unified by a unique personality.”

Second, they say we should think about the kinds of things we accept as persons and as non-persons: we readily think of ourselves and other adults as being persons and we readily think of fictional characters, like Luke Skywalker, as persons. We generally think of non-conscious entities, like rocks and carrots, as non-persons. Conscious and feeling animals tend to be closer to persons than not. Unconscious, unfeeling fetuses would definitely not be persons, as consciousness sets in later in pregnancy than the first trimester, where most abortions occur.

These are the only arguments leveled against the claim that fetuses are wrong to kill because they are persons, and it should be obvious that these arguments are severely lacking in persuasiveness. The first argument is simply based on what someone believes, and beliefs can be mistaken. I see myself as a person, but I also retroactively see myself as a person when I was a fetus. This is because of my prior belief that fetuses are persons. NG reject this claim and see fetuses as non-persons because of their prior commitment to supporting abortion. So this argument ultimately begs the question.

The second argument, that we should think about the things we accept as persons or non-persons, is question-begging for the same reason. You’ll accept certain things as persons or non-persons based on your prior metaphysical view of personhood. I don’t think conscious or feeling animals are “close” to being persons because I don’t think personhood is something that comes in degrees. You are either a person or you are not a person, and “conscious, feeling” animals don’t make the cut.

NG have not offered any good reasons for accepting their view of personhood, especially when there is good reason to believe personhood is established at fertilization.

Pro-Life Argument #4: Fetuses are potential persons. This is an argument that some have defended in the literature. It is not an argument I defend, as I think the critics of this argument (such as NG, as well as Michael Tooley and Peter Singer) are generally correct. If fetuses are merely potential persons, this does not, then, grant them personhood rights. However, this is not the argument that most pro-life advocates make. The argument is that fetuses are actual persons with great potential, and that potential matters in the consideration of personhood. It is true that fetuses are not yet rational, but they are rational by nature, and since one does not cease to be by undergoing changes that are within one’s internal programming, fetuses are persons now despite not yet being able to exercise their rational capacity since they are the same individual through all the changes they undergo. So I’m not very interested in defending this argument, but this is an important caveat to consider when trying to critique pro-life arguments.

In my next article, I’ll look at one last pro-life argument and address the pro-choice arguments NG defend.

[Today’s guest post by Clinton Wilcox is part of our paid blogging program.]