Is Abortion Justified by the Fact that Most Pregnancies Miscarry?

October 4, 2009

In the comments to another post, the question arose whether the pro-life position is inconsistent with a failure to prevent as many naturally-occurring deaths in the womb as possible.  I found the discussion worth a separate post, and I hope that the gentleman with whom I was conversing will take no offense at the separate post written in response to his comments:

You’re conflating, perhaps, my position with those that make this pro-choice argument.  I am not claiming that the law should remain morally neutral.  I am claiming that, on this particular moral question [of whether to legally prohibit abortion], I cannot provide a judgment without relying solely upon dogma (I’ve tried, I can’t make one stand up and hold water).  [Bracket added]

I previously provided a non-religious principle for opposing abortion through law: “the intentional killing of innocent human life must never be permitted by secular human law.”  With this principle there can be no dispute. It is a principle of natural reason that is apprehended by all humans to be correct, and for a person to disagree with it is to demonstrate that there is something wrong with that person.  You have not raised a single reason, whether by secular or religious reason, why this principle should not be a bedrock for our human law.  It is as obvious as any other principle of reason on which our law can be based.  There is nothing hard to understand about this principle, including for all non-religious people; everyone already knows it’s true. 

There are many religions that do not equate abortion with murder, because they do not recognize that life begins at conception. 

There are also religions that permit child sacrifice.  There are religions that hold that people of certain races are sub-human and may be enslaved.  If you are not comfortable deeming certain religious practices illegal, you are not comfortable with the concept of law itself.  The fact that some person opposes a law on any religious grounds cannot serve to defeat the reason for having the law when the religious grounds are contrary to reason. 

If the law cannot withstand someone’s supposedly religious claim that unborn humans are unhuman, neither can it withstand someone’s religious claim that black people are unhuman.  (Keep in mind that there was a time when most people in various American jurisdictions believed black people were sub-human; there was no human consensus on the issue to which a moralist could appeal.)  Your logic, to the extent it bows to religious or public opinion rather than plain moral reason, mandates that slavery be legal, at least in many cases.  Mine dictates that religious beliefs that are contrary to reason must be ignored in law-making.  To hold that innocent human life may be intentionally killed is plainly contrary to reason, regardless of religious belief. 

There are certainly entirely reasonable positions that can be made regarding the beginning of life, that are self consistent with various criteria that match those conditions that everyone agrees are “obviously” cases of living people.  So one can certainly say that the law should not be morally neutral, but that in this particular case the morality of the action cannot be judged properly, inside the context of our particular social construct.

It is not any more “obvious” that black people are human life than that unborn humans (in whatever stage) are human life (i.e. living).  In the practice of biotech medical products, I have heard lawyers say that the issues in pharmaceutical law are unique because the products are “alive.” 

There is no dispute, from any credible scientist, that unborn humans are human life.  None.

People deceive themselves into thinking that unborn humans are not human life, notwithstanding all evidence to the contrary, because they want to.  Just like people used to employ the same self-deception with respect to black slaves; because they wanted to.  And Nazis with respect to Jews, militant Muslims with respect to infidels, Russian/Asian communists with respect to religious people…  But despite the long history of self-deception and people taking it upon themselves to decide who gets to be fully human with rights, the fact remains that all of the above are indisputably innocent human life and must not be wantonly murdered.

Keep in mind that my last point (which you agree with) also generalizes to a number of seriously potent questions for people who support the pro-life stance.  Let us suppose that in fact we do have the capability to remove a fertilized egg from a woman after the moment of conception.  Let us further suppose that we accept your working premise: that, after the moment of conception, the being created has precisely and exactly those rights which we grant to anyone we recognize as a sapient being.

Yes, and after thinking about your argument (your challenge did force me to dwell on it for a bit), I must note here that no person has a positive right to be kept alive in all circumstances.  If I may say so, I note that positive rights are a consistent theme in your arguments.  I submit that people have a negative right to life that results by virtue of the moral and legal restriction on all other people against intentionally killing them.  It is true that a person can intentionally kill another person by starving them to death or other failure of basic care, as in when a mother abandons her baby in a trash can.  But there is no moral requirement that anyone take extraordinary or unreasonable means to keep a person alive. 

That is a summary of the right to life that we all enjoy, including the unborn, though their (negative) rights are so brazonly violated today.

It’s established as likely that the vast majority of conceptions do not result even in the fertilized egg reaching an implantation stage; it appears (from study) that actual pregnancies that reach even the first trimester represent a statistically small portion of overall births.  I’ve heard many numbers bandied about, but I have no idea which if any of them is accurate; however, it seems a solid proposition.

This implies that it is likely that *many more lives are lost* even than are aborted.

“Lives lost” does not equal “lives killed.”  Famine is obviously not the same as Stalin’s mass murders; there is no culpability in the former.

It follows, then, that the act of sex comes with the inherent staggering risk that a life is being created which will not survive, due to mischance or genetic flaw.

And yet, we have accepted the premise that this life is to be granted the same rights to life, liberty, and the pursuit of happiness as anyone else. 

Yes, and note that the right to life is not a positive right to always be kept alive.  Nor is one’s negative right to life contingent on the odds of survival.  Every one of us will die sometime, whether in or beyond the womb; that doesn’t give others the right to cause deaths sooner than God/nature would otherwise dictate. 

This represents a serious difficulty for the pro-life person, who usually does not consider this case.  We now have the capability to capture those lives, using technology.  In fact, if we can show that the technology improves the survival rate of conceived persons, then it follows that we have an obligation to *forbid* normal childbirth, as it is statistically staggeringly more likely to result in the death of a life than the technological option. 

I beg to differ.  There is no difficulty at all.  Intentionally killing someone is obviously a wholly different thing than watching a person die when you can do nothing about it within your ordinary, reasonable means.  Everyone dies eventually; it does not follow that giving birth is immoral just because the chances of eventual death are 100%.

Furthermore, I previously explained the principle of double-effect in a prior comment.  You can have sex with the intent that any resulting child live, even if you know the odds are that a resulting child will die.  Consider bygone centuries when medical technology did not exist.  Was it immoral to have sex just because they knew that a death was more likely than life?  Today, is it immoral to have a child in the United States when you know that the birth survival percentage is higher in Canada?  There is no moral requirement that you increase the odds of survival; only that you not intentionally kill human life.  This whole technology argument is a red herring that does absolutely nothing to alter the principle that you must not intentionally kill innocent human life. 

The woman’s desire to give birth must be considered a cosmetic concern in the light of the risk to the child, much like the woman’s desire *not* to be pregnant must be considered a cosmetic concern in the light of the pro-life argument we are now assuming is axiomatic.

I believe I agree (if I understand you).  In other words, a woman’s desire to be pregnant or not to be pregnant is as relevant as a mother’s desire to be a mother or not to be a mother.  By nature, no one owes her a thing, other than to respect her negative rights.  And she must respect the negative rights of her child, whether born or unborn, not to be intentionally killed. 

Since the vast number of those pregnancies which self-terminate are due to genetic flaw, if we use technology to extend those lives to birth, it follows that it is also likely that we will be bringing into the world a great number of infants who possess incredible genetic flaws, resulting in physical, mental, or developmental defects.

I don’t see how this is relevant, unless you think that disabled people are sub-human.  However, since you (or a lot of people, anyway) don’t want to live in an inconvenient world with too many disabled people, it may comfort you to know that we do not owe unborn children a duty to use extraordinary or unreasonable means to save them.  If God/nature chooses them for death in the womb, that is His decision, and we don’t owe it to the child to take extraordinary medical steps to keep him or her alive.  But when we go ahead and decide instead of God, we commit murder.  It’s akin to you seeing a stranger lying on the street alive but apparently not breathing.  You are not legally required to give it your best shot at CPR (especially if giving CPR is “extraordinary” for you, like if you don’t know CPR or you have a breathing problem) and we won’t throw you in jail if you don’t try; but if you hold your hand over the stranger’s nose and mouth to finish the job, you indisputably commit murder under the law, even though the person was going to die anyway. 

Now, you can perhaps receive some comfort from a belief that these cases aren’t likely, but you must still address the possibility that your stance will generalize into such a scenario.

I’ll concede, for the sake of argument, that they are likely, but it won’t make a bit of difference to the principle I repeat and repeat: the intentional killing of innocent human life must be deemed illegal by secular law. 

Do you then agree, that given the technology, we would have to forbid natural birth as being an unnecessary risk to the child?  Do you then agree, that given the technology, we would have to force anyone engaging in a sex act to undergo screening to test for, and rescue, any conceived life that may have resulted from the act?  Do you then agree, that given the technology, we must carry these lives to term, regardless of the physical or mental deformities and attendant health and developmental problems?

(1) Of course not; see above.  Natural occurrences are not immoral; volitional abortion is never, ever natural.  (2) Of course not; see above.  Again with the nature thing…  (3) Yes, but not because of the technology.  We must let nature run its course, which would involve carrying these lives to term if they make it that far, regardless of the child’s health or developmental problems (just like after the child is born–we can’t kill the child just because he or she has such problems).  But we do not owe the unborn child an extraordinary or unreasonable life-saving procedure.

If not, I then must level a charge of inconsistency, as you clearly do not maintain that the conceived life is of equivalent value to the established pregnancy, or of the infant child.

And you would be mistaken.  There is no inconsistency.  A conceived life is of equivalent value of an infant child, or an elderly person for that matter.  Neither innocent life may be intentionally killed, but neither has a positive right to extraordinary care, either.  A helpful discussion is provided by the classic encyclical Evangelium Vitae (required reading in a philosophy class I took in college) with respect to euthenasia, but it applies equally to your objection:

For a correct moral judgment on euthanasia, in the first place a clear definition is required. Euthanasia in the strict sense is understood to be an action or omission which of itself and by intention causes death, with the purpose of eliminating all suffering. “Euthanasia’s terms of reference, therefore, are to be found in the intention of the will and in the methods used”.

Euthanasia must be distinguished from the decision to forego so-called “aggressive medical treatment”, in other words, medical procedures which no longer correspond to the real situation of the patient, either because they are by now disproportionate to any expected results or because they impose an excessive burden on the patient and his family. In such situations, when death is clearly imminent and inevitable, one can in conscience “refuse forms of treatment that would only secure a precarious and burdensome prolongation of life, so long as the normal care due to the sick person in similar cases is not interrupted”. Certainly there is a moral obligation to care for oneself and to allow oneself to be cared for, but this duty must take account of concrete circumstances. It needs to be determined whether the means of treatment available are objectively proportionate to the prospects for improvement. To forego extraordinary or disproportionate means is not the equivalent of suicide or euthanasia; it rather expresses acceptance of the human condition in the face of death.  [Emphasis supplied]

Thus, to allow a child to die in the womb by failure of extraordinary care, so long as death is not intended and survival is hoped for, is not murder or immoral.  It is an “acceptance of the human condition in the face of death.”  The law need not contravene natural occurrences, but it must prevent humans from intentionally killing other innocent humans.

In sum, it is immoral and must be illegal to intentionally kill innocent human life.  With this statement there can be no dispute.

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21 Responses to “Is Abortion Justified by the Fact that Most Pregnancies Miscarry?”

  1. padraic2112 Says:

    > I hope that the gentleman with whom I was
    > conversing will take no offense at the
    > separate post written in response to his
    > comments:

    Oh, no, not at all. It’s interesting to find someone who is actually interested in entering into a dialogue on this particular topic.

    > I previously provided a non-religious
    > principle for opposing abortion through
    > law: “the intentional killing of innocent
    > human life must never be permitted by
    > secular human law.”

    You go on to declare that I’ve done nothing to refute this principle. Indeed, I don’t find that principle objectionable, and refuting it wasn’t my goal.

    My contention is that in order to make the jump from this premise (the intentional killing of innocent human life must never be permitted by secular human law) to the conclusion (opposing abortion) requires a join equating a fetus as qualifying as a living human person. I’m still not certain that you’ve met that criteria, more below.

    > There is no dispute, from any credible
    > scientist, that unborn humans are human
    > life. None.

    Certainly there are. That is to say, there are credible scientists (and theologians, and lawyers, and philosophers, for that matter) who regard the value of a human life to not be an absolute. Certainly, in your particular case, you must agree that human life cannot be of an absolute value, because under just war, it’s permissible to end an opposing soldier’s life to save your own.

    Thus, there are conditions, circumstances, or situations under which the value of a human life can be regarded as of lesser value than another, at least *in the context of human decision making*.

    > If the law cannot withstand someone’s
    > supposedly religious claim that unborn
    > humans are unhuman, neither can it
    > withstand someone’s religious claim
    > that black people are unhuman.

    Certainly it can. I think this is the first thing I’ve read of yours that I find flawed at the foundation.

    If you examine “life” as a set of essential properties, you cannot wind up with a reasonable set of criteria for “live persons” that would include people in general and exclude persons of color (or theology, or any other essentially cosmetic distinction).

    However, you can easily wind up with a reasonable set of criteria for “live persons” that excludes the fetus (at least at several stages of development). The fetus cannot survive on its own. At the point of conception, it has no nervous system, brain, heart, or lungs. It has no ability of cognition. Anyone who regards cognition as an essential property of “live persons” will obviously exclude a fetus (prior to the appropriate developmental stage) from the class “living human person”.

    In order to make the jump to include fetus in the class of “live persons”, you must change the membership criteria to include *potentiality*.

    Now, while *I* may agree that this is reasonable, I cannot extend it non-axiomatically; that is to say, I cannot convince anyone else that this is a reasonable stance without relying upon some sort of dogma.

    That makes it a question of faith, not a question of empirical evaluation.

    > I must note here that no person has a
    > positive right to be kept alive in all
    > circumstances… [snip]… I submit
    > that people have a negative right to
    > life that results by virtue of the
    > moral and legal restriction on all
    > other people against intentionally
    > killing them.

    and

    > it may comfort you to know that we do
    > not owe unborn children a duty to use
    > extraordinary or unreasonable means
    > to save them.

    Okay, I confess, the comment prior was deliberately couched to tease out this counterargument. The counter-counterargument is not mine, I’m borrowing it from my undergraduate Philosophy professor (himself a Natural Law guy).

    If we agree that people have a negative right to life, but do not have a positive right to life, then there is nothing preventing someone from taking a morning after pill. The morning after pill does not directly harm a fertilized egg, it simply prevents it from implanting in the uterean wall. By your argument, it is certainly within the rights of a “to be” pregnant woman to decide that she will not provide a life support environment to a fertilized egg (which, given the time frame and inherent hazard to the female, certainly qualifies as “extraordinary means”).

    Similarly, having a cesarean section and removing a fetus and a placenta from a pregnant mother at her request is acceptable; she is simply choosing not to continue to support the fetus with those extraordinary means. Certainly it would not be acceptable to use certain *methods* of abortion, but this stance does not forbid at least this two examples.

    If you are going to argue (which you seem to at least imply indirectly in this particular offering) that pregnancy itself does not constitute a state of extraordinary measure, I have to ask on what grounds you make this assessment. Having seen the process up close and personal, I must say that many women would disagree with you.

    Regardless, I don’t see how you can fail to consider it extraordinary support (given again, the time required and hazard to the mother) considering that you do *not* consider it just to require (via the law) people to attempt to save someone who collapses on a sidewalk (and persecute them for failing to do so). Certainly the second case is a vanishingly insignificant burden in comparison to the first.

    If you’re going to argue that pregnancy is a natural condition, and thus is not extraordinary simply due to its “naturalness”, be forewarned I’ve got another sucker punch coming 🙂

    > This whole technology argument is a red
    > herring

    I think you missed the point on this one. You’re assuming that a technological intervention must be time consuming, costly, or massively inconvenient.

    What if it isn’t? It certainly would be upon development of the technology, but assuming the normal technology adoption curve, barring some catastrophic extinction event, it is almost a foregone conclusion that at some point it will be possible (nay, probable) to remove a fertilized egg from a woman and raise it to a viable infant at essentially zero cost, at least relative to the cost of supporting a natural pregnancy. In fact, given that the woman no longer requires any sort of advanced medical care, it’s certainly reasonable to argue that the technology *will* exist some day to provide this capability at a *negative* net cost, in comparison to a natural childbirth.

    So the question posed is completely relevant, not today of course, but at some point in the future.

    A somewhat more formal phrasing:

    Given that a fertilized egg is to be granted the full rights of a human life upon the moment of conception, and given that the technology exists to do so (at *effectively* a much lower cost and much less risk than a natural pregnancy), do you agree that we would have a moral obligation to require this methodology?

    If not, why not? The only possible argument I can see is if you completely reject *all* positive rights to life of the fertilized egg… and at this point we’ve come full circle, and you no longer have grounds to demand that a woman provide any sort of life support to the fertilized egg, either.

  2. padraic2112 Says:

    Change “persecute” to “prosecute”.

    The five year old woke me up in the middle of last night; I’m operating off of impaired cognition myself.

  3. Tim Says:

    Brilliantly clear and simple!

  4. Tim Says:

    Hmmm. Posted that before I saw comment #1. Seems really like the major point of disagreement is what constitutes “extraordinary means.”

    Still, both of you are extremely enlightening to read. I relish the clarity of your thoughts.

    As for whether mothers have a duty to provide “life support” for primitive embryos… it seems that we are only resorting to the rights of the individuals. Does natural law make any judgments with regard to families as units? Perhaps mothers have a duty toward embryos that hired third-party professionals don’t. Maybe something about sustaining the consequences of her own actions.

  5. padraic2112 Says:

    @ Tim

    > Seems really like the major point of
    > disagreement is what constitutes “extra-
    > ordinary means.”

    Well, that’s one. Note: I’m not saying that I agree (or disagree) with our host’s overall position. However, given any particular philosophical framework, you must at some point define your terms and set your base axioms.

    Quite often, disagreements between schools of philosophy boil down to disagreements at the semantic or axiomatic level. Which is partially the case here: in order to say anything substantive about the cap-V “value” of cap-H “human” cap-L “life”, one must first define what this concept entails.

    Some trains of thought will define these things in terms of universal “goods”. Human life is by definition “that which is human and lives”, and its value is regarded as an absolute good.

    Strict utilitarians, on the other hand, will argue that human life is only a good to the extent that it’s good for the majority.

    Strict relativists will say that the value of a human life is dependent upon a number of factors which vary from the individual to the individual.

    Me, personally, I think there are obvious question to the value of a human life being an absolute good (one case is the self-defense killing of someone who is trying to harm you). Therefore, we have at least one exception to the absolute good idea which damages its usability, as it doesn’t generalize. It behooves us to come up with some quantification of the value of life that doesn’t rely upon an absolute goodness standard (note: this is what we in the technology business call a “wicked problem”; it’s not easy, I’m still working on it myself and I’ve been struggling with it for 20 years).

    Moving on to the concept of “human life” (aside from the anthropological problem that constructing a value judgment based on humanocentrism will fall apart the minute we meet up with any sapience that isn’t of the homo sapiens variety, be it terran, artifical, or extraterrestrial), the question of “life” is not quite so cut and dried; one can always fall back on the, “I’ll know it when I see it” standard, but this is obviously unsatisfying as well, and philosophically very worrisome as it can lead you to adopting postmoderism, which is clearly to be avoided whenever possible. 😀

    > Maybe something about sustaining the
    > consequences of her own actions.

    Careful, if you rely on this principle you got nuttin’ to say about rape or incest. I hardly think it’s fair to assign the consequences of her actions entirely upon the female (since it takes two to tango), so I personally don’t like this one much either.

    In any case, if we are going to attribute any member of our society with a responsibility to any other member of our society, in order to prevent justice issues we should have a reasonable standard for what *classes of behaviors* are those that we will require individuals to execute on behalf of other members of society. Not specific behaviors (like pregnancy), but classes of behaviors (things in combination that present the same level of burden and difficulty as pregnancy).

    If you want to say that pregnancy is a reasonable standard, well that’s perfectly okay as a baseline. But then we have to examine the consequence of a pregnancy on a female, and establish that *those consequences* are a reasonable level at which to establish the “extraordinary” standard.

    This has a huge impact on personal liberty for everybody. We’re not just talking about an obligation to help people who may collapse near us, we’re establishing that fully supporting another human life for 9 months at a statistically significant level of risk to ourselves is a *minimum* standard.

    Now, we may attach some riders and exceptions to that, but I’d be hard pressed to come up with a set that would include pregnancy and exclude a whole bunch of other behaviors without some really convoluted qualifications.

    Why should we do this? What’s the justification to have such a high standard in one case (especially as it disproportionately hits 1/2 of the population) without having an equally high standard in other cases? Can you even really justify trying to construct such a standard in the first place, or isn’t this just a case of trying to make your philosophy fit your personal preferences when it comes to conclusions? That’s not very rigorous, it’s simply a matter of building a rationalization for your end result instead of trying to honestly derive it from your axioms.

    Why *shouldn’t* we require people to take even 1 month of first aid training? We’d actually save *hundreds of thousands of lives* if everyone around us could perform CPR, given that CPR within 60 seconds improves survival rates so drastically in heart attack scenarios.

    Why *shouldn’t* we require people to do 9 months of service improving basic sanitary and living conditions for the poor and underprivileged? Again, huge win (not just for the poor and underprivileged, but it would have benefits for the rich and idle, as well).

    Why *shouldn’t* we have a much higher level of burden, in fact, upon the male half of the population given that the women, they do the childbearing?

    Most people who will be troubled to actually try and tackle this issue with rigor will come back around to the idea that personal liberty has its *own* value, and that sometimes liberty and life crash into each other and liberty wins, and life loses.

    (Which, to be clear, in and of itself isn’t an entirely unreasonable position IMO).

    But the consequence of that is that you *must* admit it.

    If you admit that sometimes individual liberty does trump absolute rights to life, you’re sort of stuck if you’re trying to pass a *societal* value judgment on abortion.

    Note(!) this doesn’t mean that you have to agree with a particular moral stance on it. You can regard it as immoral, just like I (personally) would regard it as immoral (indeed, deeply evil) to refuse to help someone collapsing on the floor from a heart attack. You’re certainly welcome to work to try and reduce the thing from happening, regarding it as something to be avoided and minimized. But to codify it in law is unjust, as you are putting that extraordinary burden on one class of citizen without generalizing that burden to behaviors that impact everyone.


  6. I’m going to take your argument in two separate comments for clarity. Here’s part I…

    It’s interesting to find someone who is actually interested in entering into a dialogue on this particular topic.).

    I find it unfortunate that the nation-wide dialogue is so thin. Thank you for holding up the other end and providing formidable challenges. You have definitely given me plenty to think about. That said, I believe my position, when carefully articulated, is unassailable for the following reasons.

    I don’t find that principle objectionable, and refuting it wasn’t my goal.
    My contention is that in order to make the jump from this premise (the intentional killing of innocent human life must never be permitted by secular human law) to the conclusion (opposing abortion) requires a join equating a fetus as qualifying as a living human person. I’m still not certain that you’ve met that criteria, more below.

    I said nothing of “persons” and do not need to do so. In fact, I intentionally avoided it. You brought up the category of “persons”, a category which you apparently find to be more narrow than “innocent human life” as I have stated. It is interesting to note that the metaphysical category of “persons,” as distinct from “innocent human life,” is a concept that you introduced, and upon which you justify the legalization of killing human life. It would appear that you (and others following your logic to its conclusion) are imposing your metaphysics on the lives of other humans by defining them as “non-persons,” whatever you think that means, to justify the killing of those human lives.

    There is no dispute, from any credible scientist, that unborn humans are human life. None.

    Certainly there are. That is to say, there are credible scientists (and theologians, and lawyers, and philosophers, for that matter) who regard the value of a human life to not be an absolute.

    This is not responsive to my statement. Unborn humans are undisputably human life, regardless of whether some very important decision-makers decide that those human lives may be treated in certain ways, and whether they are “persons” for various purposes, such as legalized killing, research, or taxes. (You might note that there was a time when none other than the United States Supreme Court declared in the Dred Scott v. Sanford case that black people were not “persons” under the constitution; were they not living “somethings” of the same species as white people, regardless of whether their legal “personhood” was recognized?) There is no dispute that unborn humans (and black humans) are human life, whether or not they get treated or labeled as “persons.” Even corporations are defined by law as “persons”; legal “personhood” is a human-created category distinct from the definition of human life. You need not even be alive, or an organism, to be a legal person.

    An embryo is (a) alive and (b) human. No scientist, lawyer, or anyone with a bit of sense would claim that (a) an embryo is not alive or (b) an embryo (of the species homo sapiens) is not human. Even the dictionary.com entry for “embryo” provides the following definition: “An organism in its early stages of development, especially before it has reached a distinctively recognizable form.” (A definition of “organism” is “a form of life considered as an entity; an animal, plant, fungus, protistan, or moneran”). I can’t see anyone disputing these definitions. Non-living things are not in an early stage of development in the lifecycle.

    Put another way, you and I were once embryos. Neither of us was ever sperm or an egg. Those are not organisms in the early stage of development. But an embryo has its own DNA and, under ideal conditions, *grows* into an adult human like you or me (and then an elderly human after that). We are substances constantly undergoing change, and those changes began at the moment of conception. You may say that you were not a “person” (as you understand it) until you achieved some stage or ability, such as cognition, but you were already a living human organism in some stage of development before that.

    (Incidentally, I contend that all human organisms have all the qualities necessary for “personhood,” and that any created list of qualities that a human organism must obtain to “become” a person is an arbitrary list. “Human organism” is not arbitrary: it always is what it is, from conception to death, regardless of when death occurs. There are no stages of personness, or “more person” versus “less person”, in my framework. I don’t think my definition of personhood is necessary to my stated principle, but even if it is, my definition makes more rational sense than any religion-based or other metaphysical definition of personhood.)

    It is not necessary to make the metaphysical judgment that unborn human lives are “persons” to enjoin the killing of human organisms under the secular law. We make it illegal to kill endangered species of owls under the secular law; do we need to deem them as “persons” first? Of course not. Must owls receive more protection than some class of human organisms? It takes no leap of logic to declare it illegal to kill innocent human organisms; in fact, it’s self-evident that we must do so.

    Certainly, in your particular case, you must agree that human life cannot be of an absolute value, because under just war, it’s permissible to end an opposing soldier’s life to save your own.

    Thus, there are conditions, circumstances, or situations under which the value of a human life can be regarded as of lesser value than another, at least *in the context of human decision making*.

    There can be no intentional killing of innocent human life. That is the principle. An enemy combatant trying to kill you, just like a thief invading your home, is not “innocent.” He has volitionally given up his innocence. You can come up with a laundry list of fun hypotheticals but you will not be able to come up with anything to show that human beings may take it upon themselves to intentionally kill innocent human life. That is an absolute, and the human secular law must reflect that absolute.

    In any event, in the interest of clarity, all humans have an absolute value. The fact that it is permissible in some circumstances to intentionally end the lives of non-innocent humans does not mean that those humans lack a concrete value. I am not proposing that humans weigh whether the life of one person is more valuable than another, regardless of circumstance or decision-making. Even if you could guarantee the whole world a long life of happiness by intentionally killing just one innocent human life, I would deem the killing to be murder. There is no “weighing” when it comes to innocents.

    If the law cannot withstand someone’s supposedly religious claim that unborn humans are unhuman, neither can it withstand someone’s religious claim that black people are unhuman.

    Certainly it can. I think this is the first thing I’ve read of yours that I find flawed at the foundation.

    If you examine “life” as a set of essential properties, you cannot wind up with a reasonable set of criteria for “live persons” that would include people in general and exclude persons of color (or theology, or any other essentially cosmetic distinction).

    However, you can easily wind up with a reasonable set of criteria for “live persons” that excludes the fetus (at least at several stages of development). The fetus cannot survive on its own. At the point of conception, it has no nervous system, brain, heart, or lungs. It has no ability of cognition. Anyone who regards cognition as an essential property of “live persons” will obviously exclude a fetus (prior to the appropriate developmental stage) from the class “living human person”.

    So, to determine whether something is “alive,” even though such a property is self-evident, you are ok with coming up with a list of criteria that qualifies one for life. Life becomes not what something is, but what something becomes when it does something to qualify for the category, as in “passing the bar exam” makes one an attorney. You posit (or at least argue that it is legitimate to posit) that we need not respect anything that does not meet our conceptually-invented criteria for life.

    The interesting thing here is that no scientist has ever created life from an atmosphere of non-life. If they could, the evolutionists would be falling all over themselves shouting victory in the name of Darwin. But they can’t. No one has ever taken a bunch of non-living things and given them the “spark” necessary for life. And let me tell you, no scientist would ever require a nervous system, brain, heart, lungs, or ability to care for oneself before they declared they had created life. It would be enough for them to put together non-living pieces of matter that could self-replicate and they’d be giving themselves high fives and popping the champaigne. I’m no scientist, but if scientists could create an embryo, I’m guessing they would declare that they had created life. And they would be right.

    There simply is no credible dispute that an embryo is alive. A human organism in the earliest stages of development is alive, “personhood” (whatever you mean by that) notwithstanding.

    As to the slavery thing, you are the one that came up with a category of “persons” narrower than the category of living humans. Exactly where do you think that that move leads?

    A “reasonable set of criteria for ‘live persons'” is arbitrary and made up out of thin air. The characteristic of “white skin color” is no less “reasonable” than intelligence, possession of a functioning heart, possession of a functioning brain, ability to feed or care for oneself, ability to contribute to society, ability to do math, ability to remember, ability to communicate, possession of a soul, possession of rationality, a history of dominance over other organisms… Many of those disqualify infants as well… “Reason” tells us that there are no criteria other than life itself. A human that is alive, by the most basic understanding of a living organism, deserves protection. What is rational about coming up with additional criteria? Every list of criteria is illegitimate and eventually breaks down. Not to mention that every list of criteria that has ever been invented has been invented by someone who wants to do something horrible to another life.

    In order to make the jump to include fetus in the class of “live persons”, you must change the membership criteria to include *potentiality*.

    Again with the person thing. An unborn human is a human organism; human life. Not a potential organism; not potential life. There can be no disputing this.

    A cat is alive. It is not a human organism, nor is it a person. And yet it lives. A cat embryo inside a mother cat is likewise alive. A cat is not the same species as a human. Embryos of the human species are alive and they are human. Once again, there can be no disputing this.

    Now, while *I* may agree that this is reasonable, I cannot extend it non-axiomatically; that is to say, I cannot convince anyone else that this is a reasonable stance without relying upon some sort of dogma.

    That makes it a question of faith, not a question of empirical evaluation.

    You come up with a metaphysical category, “personhood,” based on criteria that you made up–rather than the plain biological fact of a living human organism–and then you claim that it takes a question of faith or dogma to recognize a human organism for what it is under the law? To the contrary, it takes a statement of faith or dogma to make up the metaphysical category of “personhood” (as something more than a human organism) to beginwith. I, on the other hand, stick with the indisputable, empirical fact of what a human organism is. I find it ironic in the extreme that he who argues in favor of legalized abortion resorts to philosophy, metaphysics, and respect for religious claims to determine who gets to be human, while he who argues against it is sticking with scientific facts.

    The intentional killing of innocent human life (i.e. human organisms) must not be tolerated. With this statement there can be no dispute. It is self-evident to all people, religious or not. People may darken their consciences and deceive themselves out of selfish ambition, but when a person hears “the intentional killing of innocent human life must not be tolerated,” they will agree until they realize what that means for their decisions.

    The discussion of “rights” (and Tim’s helpful observations) will be in part II of my response. (And that is where we both must delve into metaphysics, morality, and legal philosophy, so please don’t misunderstand me to claim that my pro-life position is exclusively a scientific position.)

  7. padraic2112 Says:

    > The intentional killing of innocent
    > human life (i.e. human organisms)
    > must not be tolerated.

    So the status of the person, vis-a-vis capability, is not germane. This is a perfectly fine philosophical standpoint, although again some people may be uncomfortable with the results.

    I’m not so certain that, as a moral axiom, you can include this as such a strong operating principle without drawing some sort of conclusion about a positive right to life, however. It seems odd to have such an ironclad operating principle based entirely upon a negative right.

    But, I’ll wait to see your second comment brings 🙂

  8. Pat Cahalan Says:

    I thought of an important nuance while musing over your last response.

    > The intentional killing of innocent human
    > life (i.e. human organisms) must not be
    > tolerated

    Why is the qualifier “innocent” necessary? Well, of course I will assume that this is included to allow the intentional killing of non-innocent human lives as previously discussed.

    This properly does *not* belong in your proposal, if you’re going to propose that your definition isn’t metaphysical; you’re making it metaphysical by the addition of this qualifier, because the qualifier is *necessary*.

    > I, on the other hand, stick with the
    > indisputable, empirical fact of what a
    > human organism is.

    I’m not so certain that you do.

    This being the case, I’m not so certain I’m willing to grant you that your definition has an integrity (being based as you posit entirely upon science instead of metaphysics) that my status “personhood” lacks. Certainly “personhood” relies upon metaphysics. But “innocent life” does, as well… and you are somewhat unfairly comparing my concept of “personhood” to your concept of “human life”… when what you should be comparing my concept of “personhood” to is your concept of “innocent human life”.

    In other words, if “innocence” is a necessary component of your proposition, than it follows that innocence *or lack thereof* is property of human life that is required for your proposition to be valid. Human life must be either innocent or not (innocence being a boolean state).

    If the property (or lack thereof) is required, then the property properly belongs in the definition, for logical consistency. Otherwise you can build truth tables that can lead to paradoxes regarding human life.

    The state of innocence (or not) must be an inherent property of human life; you cannot have a human life that is *neither* innocent nor “not innocent”, or *both* simultaneously.

    How does one judge the innocence, or lack thereof, of a human life without metaphysics?

    We have three possibilities:

    One, the unborn is innocent (I can’t make an argument for this one either way, again, without some axiom provide for via dogma). The rest of your proposal follows logically.

    Two, the unborn is not innocent (ditto). The rest of your proposal does not follow, again logically.

    Three, the unborn is neither innocent nor not innocent. We can make no determination as to the truth of falsity of your proposal.

    Thus, again, we have an incommensurable problem – we cannot directly compare the unborn “human life” to the born “innocent human life”, as it lacks the property of a state of innocence.

    So your statement “The intentional killing of innocent human life must not be tolerated” either does not apply to the unborn, as their innocence cannot be established, or it does not apply to the unborn without metaphysics.

    Again, not saying you’re wrong 🙂

    … but you’re rather abruptly discarding my concept of “personhood” based upon the fact that it’s metaphysical and claiming that yours isn’t. Yours most certainly is.


  9. Though I’m still working on my second part, I’ll quickly note now that I thought of the whole “innocence” thing being metaphysical after I commented, and you’re absolutely right. But of the elements “innocent human life,” the concept of “human life” is not metaphysical (at least, not in my estimation). Innocence certainly requires a judgment of reason.


  10. In drafting the second part of my response, it just occurred to me that we can go through an interesting and simple thought experiment that will cut to the heart of the issue. Please find the logical flaw in the following, if there is one (and let me know if I have at any point mischaracterized your prior assertions; I have no interest in knocking down any strawmen, and I tried to be fair in paraphrasing your words).

    Slave owner says: Slavery in my country is legal. I am white and I own black human beings. Those black human beings are not persons under our law. My religion dictates that black human beings are inferior. They have been marked by our god as inferior beings, our sacred texts state that they are inferior, and history has born witness to their inferiority as a race.

    You: Slavery is illegitimate because you cannot own persons. If you examine “life” as a set of essential properties, black humans must fit within it. You cannot wind up with a reasonable set of criteria for “live persons” that would include people in general and exclude persons of color (or theology, or any other essentially cosmetic distinction).

    Slave owner: Beside the fact that you want to enforce your private moral/religious standard of whether I can own a person, Why do I need a “reasonable” set of criteria to determine personhood? By “reasonable” I take it that you are going to apply some metaphysical standard of reasonableness and personness to my religious and political judgment about inferior black humans. You can’t do that. In any event, you cannot come up with any standard that is compelled by reason, and there is nothing in our law that is contrary to reason, even if it is not derived from reason. If you think my standard is contrary to reason, I must ask you for a definite, unassailable, and self-evident standard of “reasonable” criteria.

    You: You can easily wind up with a [non-religious] reasonable set of criteria for “live persons”–i.e. whether it can survive on its own, whether it has a nervous system, brain, heart, or lungs, whether it has ability of cognition. Anyone who regards cognition as an essential property of “live persons” will obviously include a black human.

    Slave owner: a chimp meets most of those criteria, but I’m guessing you don’t think that your list will “obviously include a chimp.” And you still haven’t provided a definite list. Surely you aren’t arguing that we must recognize personhood on the basis of those criteria–only that we can, right? There is no self-evident list of personhood factors that compels the inclusion of black humans.

    You suggest that you would use your standard of arbitrary reasonable factors of personness to march onto my property and interfere with my ownership of private property. What warrants your interference with my private affairs based on such an invented list? And what would make one list of factors better than another? It’s my land surrounded by my fence, and what goes on within my fence is none of your concern. I have a right to liberty and enjoyment on my land, so mind your own business and stay off my land, and for that matter, out of my country.

    Under our law, a “person” is who we say a “person” is. For you to suggest that there is some standard of “personness” to which our law must aspire is to apply your private morality and religion to me. And you said you wouldn’t do that.

    Even you believe that the category of legal “persons” is more narrow than living human organisms. You come up with a list of possible justifications for that, but you make no case that we ought to follow any one of those sets of justifications, nor do you provide us with a mechanism for evaluating one set against another. I, according to my reason and politics, and consistent with (but not compelled by) my religion, posit that whiteness is a necessary condition of personhood. On what basis can you claim that it is not, since we are free to define “person” however we want, and you must respect my claims and not enforce your unproveable metaphysical judgments on me? You have already divorced personhood from humanness, and you have said that you would force no religious or dogmatic judgments on me. You’ve got nothing on me. Thus, you must recognize that my system of slavery is legitimate.

    You: please provide the counter-argument (and clarifications where I’ve misunderstood you).

    (That got longer than I intended, but I’m guessing that it won’t take you much time to dismantle the philosophy of the slave owner.)
    BTW, this whole discussion has been absolute brain candy for me. I have enjoyed re-thinking my positions in light of other points of view. Thank you for taking the time to provide the delightful challenges.


  11. This will be a long comment (the long-coming “part II”), but I’ve organized it under headings for readability.

    1. Abortion and Criminal Law

    I’m beginning to see that I made an error in making this an issue of rights. It’s not an issue of rights. It’s an issue of wrongs.

    The discussion started by your claim that a reason-based (non-religious) principle for the criminalization of volitional abortion cannot be articulated. I provided one, stating that the intentional killing of innocent human life must be made illegal. You challenged that contention by bringing up a bunch of things about the rights of mothers to liberty and freedom, and a discussion of the rights and personhood of the unborn (including a contention that the category of “personhood” for the unborn can only be established by faith or religious belief). I indulged in a discussion of positive and negative rights, but at all points contended that the proper subject is human life, not “personhood,” which is a human construction made up out of whole cloth, often to justify the denial of another human’s rights. In any event, the issue was always framed by the “rights” of the subject human and its mother.

    But criminal law isn’t about vindicating rights. It’s about punishing wrongs. The question is not whether an unborn child has a right to life (even though I contend he/she does); it’s about whether a mother or doctor deserves to be criminally punished for killing innocent human lives.

    I believe I’ve made the case that unborn humans are human organisms that are alive. There’s not really any reasonable dispute.

    The status of innocence is easily outlined without respect to religion. I can do so through the use of a secular legal tool that knows nothing of religion. Every law student’s best friend, Black’s Law Dictionary (7th ed.). “Innocent” is defined as “Free from guilt; free from legal fault. NOT GUILTY.” Further, “Guilt” is defined as “The fact or state of having committed a wrong, esp. a crime” (note that a crime is not necessary, but “having committed a wrong” is). By that secular legal definition, it is utterly absurd to think that an unborn child could ever be anything but innocent.

    The following is my secular legal case for including abortion in the prohibition against criminal homicide.

    a. Abortion is Homicide

    Homicide is the ending of the life of one living human organism caused by another living human organism. There is nothing inherently criminal about homicide–criminal homicide (murder and manslaughter) is a subset of “homicide”, which also includes self-defense, killing within the line of governmental duty (police), etc.

    An unborn human, even an embryo, is a living human organism. You may protest that human beings are not persons and therefore killing them is not homicide, but this is belied by the numerous secular fetal-homicide laws. California even has one. Therefore, under secular law and without regard to religion, either (1) homicide is the killing of a human organism including the unborn (without regard to personhood), or (2) homicide is the killing of a person and an unborn human organism is a person. Either way, abortion is homicide.

    That does not in itself mean abortion should be illegal. Many homicides are excused. But abortion is and must be homicide.

    b. Abortion should not be excused

    The classic justifications and excuses for homicide, as reflected in California law, are homicides in obedience of lawful court order; when necessarily committed by government officer in overcoming actual resistance to exercise of legal duty or in arresting or retaking felon; defense of others; self defense; accident; misfortune; insanity.

    It is vital to note here that in the history of the British-American criminal law, two proposed justifications or excuses to criminal homicide have been rejected on secular grounds: (1) strength of temptation, and (2) saving one’s own life (the necessity defense). Thus, secular, non-religious courts have held that even when your life is in danger, you may not kill another person to save yourself. See Regina v. Dudley and Stephens (which I just so happen to have summarized in a previous post). The necessity defense has been recognized in certain jursidictions, but there are secular grounds for rejecting it, as explained in the 1884 Dudley and Stephens case. In any event, the necessity defense wouldn’t apply to the overwhelming majority of abortions, and could be applied on a case-by-case basis.

    Now, you may be thinking, “what about self-defense or defense of others”? Self-defense homicide and defense-of-others homicide are not justified based on a theoretical right to save one’s own life or freedom. Rather, they are justified based on the guilt of the perpetrator. If someone holds a gun to your head and says, “kill that innocent person on the street or I will kill you or someone you love,” and you kill that innocent person on the street, you will be prosecuted for criminal homicide. Thus, there are secular legal grounds to outlaw every homicide inflicted on an innocent. This also means, of course, that no person is excused in killing another to “restore one’s liberty,” or because of convenience or “integrity in one’s body.” If you can’t even kill an innocent human to save your own life, then surely an asserted claim to nine months of liberty or bodily integrity doesn’t suffice. The value of one’s life is obviously greater than the value of liberty or bodily integrity (if it wasn’t, we’d kill all our prisoners rather than bearing the expense of keeping them in jail).

    Note here, again, that I am using the plain legal definition of innocence. When I say that there is (or should be, in some jurisdictions) no justification or excuse in the case of intentional killing of an innocent person, “innocent” means what Black’s Law Dictionary says it means: “Free from guilt; free from legal fault”, and “Guilt” is “The fact or state of having committed a wrong”.

    With respect to my example above of a threat to kill you unless you kill another innocent person, you may be thinking, “what about the duress defense?” The prevalent view, including the view in California, is that the duress defense is not an excuse for intentional homicide. It only excuses lesser crimes. Innocent lives cannot be intentionally killed.

    This is not to say that you can’t argue that the duress or necessity defenses should exist or apply to abortion. The challenge here is for me to build a secular case against abortion. And I am doing so using secular legal principles, notwithstanding anyone’s claim that the law should be different because they desire it to be different.

    So, having found no classically applicable defense for the homicide against an innocent human organism, this brings us to your “it’s not a person” excuse for killing another human. Just as it was with enslaving black people a couple hundred years ago.

    Now, the initial burden of asserting an excuse to homicide is on the defendant claiming that although the homicide occurred, it is excused. (Once the defense is established as a matter of law, the burden may shift to the government to prove that the excuse does not apply, but I submit that the initial burden of creating a new excuse is, or should be, on the defendant.) So, the question is not whether the government can establish that an unborn human is a person. It is whether the killer can establish that the unborn human is not a person. That will require, at a minimum, that the killer establish–for the first time on a blank legal canvas–(a) what a person is, (b) that a human that has not experienced birth is not one, and (c) that non-person humans may be killed notwithstanding the homicide law.

    c. If you believe abortion is immoral, it can never be excused

    If you claim that you find abortion immoral but cannot prove that an unborn human is a person, that’s really beside the point to whether it should be criminalized. To carry the day on the “it’s not a person” defense, the killer must prove to you that an unborn human is not a person. And since you believe that abortion is immoral, you must confess that there is no way that a killer could do that (otherwise you wouldn’t find abortion immoral). The burden rests on the purportedly pro-abortion defendant. As it should.

    Thus, if you privately find abortion immoral, you can have no secular legal ground for opposing the inclusion of unborn persons in the homicide laws against murder and manslaughter. The remarkable thing here is that you do believe that unborn human organisms are “persons” but you abandon those lives to death because some other people incorrectly think that those persons are not persons. You even concede that you think those pro-choicers are incorrect. For you to say that you oppose legalized slavery but don’t oppose legalized abortion on the grounds that it’s more “reasonable” to think that the unborn are not persons–even though you think they are–is to say that you’ll allow abortion because abortionists have a more sophisticated self-deception. So if a slave owner could come up with better reasons and arguments, and thereby make the personhood of blacks a closer question, then you would apparently allow it.

    If you find abortion immoral and an unjust killing, and the secular legal case can be made to outlaw those immoral and unjust killings (as I have done above), I submit that you are morally obligated to support that legal case, lest you willingly assist evil.

    2. Abortion “Rights”

    Since we brought it up, I find it useful to address your discussion of positive and negative rights, if for no other reason than academic edification.

    a. Positive and Negative Rights

    After noting that the fact that certain unborn children that have genetic abnormalities are naturally aborted is “[ir]relevant, unless you think that disabled people are sub-human,” I also stated that “we do not owe unborn children a duty to use extraordinary or unreasonable means to save them.” You reacted to the latter quote. Given the context of my statements, this line of thought is irrelevant to my argument that innocent human life must never be intentionally killed, and that the human law must prohibit it, because human life with abnormality is still human life. But indulging in this irrelevancy…

    Okay, I confess, the comment prior was deliberately couched to tease out this counterargument. The counter-counterargument is not mine, I’m borrowing it from my undergraduate Philosophy professor (himself a Natural Law guy).

    If we agree that people have a negative right to life, but do not have a positive right to life, then there is nothing preventing someone from taking a morning after pill. The morning after pill does not directly harm a fertilized egg, it simply prevents it from implanting in the uterean wall.

    That is like saying that the negative right to life means that a mother can put her baby on the kitchen counter and starve it to death. To paraphrase you, “that doesn’t directly harm the baby, it simply prevents it from eating.” Clearly, the morning after pill, abortion, and starving one’s baby each involve intentional killings by intentional neglect. But we are edging closer to a crucial point…

    b. The Issue of Duty

    By your argument, it is certainly within the rights of a “to be” pregnant woman to decide that she will not provide a life support environment to a fertilized egg (which, given the time frame and inherent hazard to the female, certainly qualifies as “extraordinary means”).

    And here we go with something along the lines of the famous (and woefully misleading) Judith Jarvis Thomson violinist defense.

    In the first place, there is no “right not to provide a life support environment to a fertilized egg”. Where, pray tell, would such a “right” come from? Certainly not from God. Not from the human law (the very debate we were having is whether the human law ought to recognize such a right or not; it is no argument to say “I should have a right under human law because the human law gives me that right”). Not from nature. The “right not to provide a life support environment to a fertilized egg” is a work of fiction.

    Secondly, “extraordinary” is “beyond what is usual, ordinary, regular, or established.” If I told you that some certain occurrence would happen four million times this year in the United States, would you call that event “unusual”? I think not.

    You and I are both the results of mothers carrying their babies to term. Mothers have been doing this for millennia. Human beings, operating according to their design, reproduce. They reproduce the same way. To be pregnant may be unusual in the span of a woman’s life, if she is pregnant only once, but her pregnancy is far from unusual in the history of humanity. It is quite commonplace, a natural expression of a natural function. By focusing on an individual instead of the big picture, I do believe you’ve missed the forest for the trees.

    But third, and perhaps most importantly, is the key problem in the Judith Jarvis Thomson violinist defense: it ignores the duty of a parent to his or her offspring. A child may not have a positive claim to care that he can enforce on all people around him (or the government), but mothers and fathers owe their children a duty of basic care. Giving a person birth rather than intentionally killing them is basic care. Intentionally killing the child is obviously violating the basic care that is owed to the child, whether the method is starvation or a hacksaw.

    Similarly, having a cesarean section and removing a fetus and a placenta from a pregnant mother at her request is cceptable; she is simply choosing not to continue to support the fetus with those extraordinary means. Certainly it would not be acceptable to use certain *methods* of abortion, but this stance does not forbid at least this two examples.

    That’s like saying my position only proscribes certain methods of intentionally starving one’s child to death. Of course, I find intentionally killing one’s child, whether by starvation, strangulation, or suffocation (“we’re not killing him, just denying him air!”) to be immoral and such acts must be illegal. Furthermore, the mother is ignoring–nay, violating–her special duty not to harm her child. The secular law recognizes and enforces such special duties. Go sit in the back of a family or probate court and you’ll see what I mean.

    Intentionally removing the child from its life-sustaining environment with the purpose of killing the child is murder, not “acceptable.” The mother is not “simply choosing not to continue to support the fetus.” She is killing the child. Any contention to the contrary is sophistry.

    If you are going to argue (which you seem to at least imply indirectly in this particular offering) that pregnancy itself does not constitute a state of extraordinary measure, I have to ask on what grounds you make this assessment. Having seen the process up close and personal, I must say that many women would disagree with you.

    Sure, a particular woman would say that the experience is exceptional. But any brief glimpse into the history of humanity would suggest that there are few experiences more common than childbirth. All humans that are carried to term experience it as infants; you and I likewise experienced it; no human exists without a childbirth. If I told you that there was an experience that everyone on earth had experienced at least once, I have a hard time believing that you could suggest with a straight face that such an experience is extraordinary.

    A mother has been supplied by God/nature with everything she needs to bring a baby to term. In view of nature and the history of humanity, and her special duty, it is extraordinary to have someone reach into the womb to intentionally kill the child; it is not extraordinary for her to bring the baby to term, no matter how bad she feels the burden is. A burden can be excruciating and yet ordinary. Every solider in war is required to put his life on the line; a difficult burden to be sure, but there is nothing special about it when considered in the context of soldiers at war–it is common to all soldiers. Likewise, pregnancy is not extraordinary in the context of women who have sex. A virgin birth, now that’s extraordinary…

    Regardless, I don’t see how you can fail to consider it extraordinary support (given again, the time required and hazard to the mother) considering that you do *not* consider it just to require (via the law) people to attempt to save someone who collapses on a sidewalk (and [prosecute] them for failing to do so). Certainly the second case is a vanishingly insignificant burden in comparison to the first.

    Well, we have two things going on here. On the one hand, we have parents with natural duties to their young–duties that the rest of the community does not necessarily share; on the other, we have the question of an individual’s “rights”. The point of my “man on the sidewalk” illustration was only to demonstrate that people don’t enjoy an inherent right to be kept alive in all circumstances, but they do enjoy a right not to be killed (hence my saying that you cannot hold your hand over the mouth of the man on the sidewalk, which was the conclusion of the analogy). But my analogy was inadequate in the sense that I compared a mother-baby relationship with that of two strangers. There is nothing inherent in a baby or an adult on the street that deserves that all people or the government do all that they/it can to extend that person’s life.

    However, there are duties on certain people to preserve another person’s life–duties that exist without regard to personal emotional, painful, or psychological burden. (Such burdens do not excuse an intentional failure to feed one’s baby, so I don’t see why they would excuse an intentional abortion.) Call it a positive or negative right from the perspective of the baby/stranger on the street, but from the perspective of the decision-maker (the one in power), it is a question of duty. And the law can (and does) reflect and enforce those duties.

    Thus, to truly compare apples to apples from the mother’s decision-making perspective, we must consider whether it would be immoral or illegal for her to leave her own child, infant, or teenager, dying on the sidewalk. What do you think the answer to that question is?

    If you’re going to argue that pregnancy is a natural condition, and thus is not extraordinary simply due to its “naturalness”, be forewarned I’ve got another sucker punch coming

    Bring it. 🙂

    c. The Extraordinarily Easy Artificial Womb

    This whole technology argument is a red herring

    I think you missed the point on this one. You’re assuming that a technological intervention must be time consuming, costly, or massively inconvenient.

    What if it isn’t?

    Ok, let us assume that a mother can take a “morning after pill” that will virtually guarantee that an embryo will survive, but the embryo will somehow be pulled out of the mother the next day and raised in an artificial womb at “zero cost” (i.e. cheaper than the medical care that a pregnant woman ordinarily voluntarily purchases), but there is a significant risk that the embryo will grow to be a disabled or misformed child…

    In fact, given that the woman no longer requires any sort of advanced medical care, it’s certainly reasonable to argue that the technology *will* exist some day to provide this capability at a *negative* net cost, in comparison to a natural childbirth.

    Natural childbirth is monetarily free. It has been free for millenia. No medical care is required to give birth. Even the most destitute, with no healthcare, have children. But I digress…

    Given that a fertilized egg is to be granted the full rights of a human life upon the moment of conception, and given that the technology exists to do so (at *effectively* a much lower cost and much less risk than a natural pregnancy), do you agree that we would have a moral obligation to require this methodology?

    Two responses: first, I don’t think there can be a natural right (bestowed by God or nature) to violate a natural process. By “natural,” I mean that state of affairs that was designed or intended to be. It’s easy to make the case that women were meant to bear children and designed for such an experience. But assuming there could be a right to violate a natural process (a right from a god or nature?), and we could make the case that the artificial womb constitutes “basic care” for the child (rather than convenience for the mother, which is irrelevant), then sure, such a right exists out of the condition of the mother’s duty. Not because the child has an inherent right to be provided such services, but because the ones with a duty to care for the child must provide basic care, just as they must feed the child.

    If not, why not? The only possible argument I can see is if you completely reject *all* positive rights to life of the fertilized egg… and at this point we’ve come full circle, and you no longer have grounds to demand that a woman provide any sort of life support to the fertilized egg, either.

    Once again, your positive/negative rights dichotomy from the perspective of the baby completely ignores the special duties of parents. That false dichotomy fallacy renders your question immaterial.

    In short, my answer to your question of the cheap, artificial womb is yes, there is a duty to bring the baby to term pursuant to ordinary care (pending the question of whether that medical procedure could constitute ordinary care notwithstanding that it violates nature). This would result in…*gasp*…a reconnection of the relationship between sex and childbirth. A woman would still have a “right” not to have a child, inasmuch as she has a right not to have sex and not to be raped. I contend that rape is no excuse for homicide (see my legal argument above), but even if you demand that exception, are you willing to make all abortions illegal except in the case of rape? If not, then the “rape” category is irrelevant.

    The duty of a mother to her child exists in nature, by reason, and must be recognized by law. To borrow an example from Frank Beckwith, if I told you there was a machine on which you could push a button and you would get an orgasm but a baby would immediately pop out the side, could you deny that you have a duty to that child? It is obvious that you would. And that clear duty is the key to shaping the law.

    Thus, it is undisputable: the intentional killing of innocent humans must be prohibited by law. It is established through scientific fact, reason, and the laws of nature. No religious belief is required.

  12. padraic2112 Says:

    Quite a bit to respond to, and we’re forking the discussion into two threads (two sets of goalposts here), but to get started on part of it:

    > Slave owner: Beside the fact that you
    > want to enforce your private moral/
    > religious standard of whether I can
    > own a person, Why do I need a
    > “reasonable” set of criteria to
    > determine personhood?

    You don’t, but more on that below.

    > By “reasonable” I take it that you
    > are going to apply some metaphysical
    > standard of reasonableness and
    > personness to my religious and
    > political judgment about inferior
    > black humans.

    Reasonableness is not directly coupled to metaphysics. Reason is a process; it can be applied in any framework of thought, metaphysics, theology, philosophy, etc. Reason is one of two processes (inductive or deductive reasoning) whereby one attempts to prove a proposition given certain axiomatic truths, or generalize a known specific truth to a general case. One can certainly have a “reasonable” theological position that is internally consistent, and yet still be objectionable to another reasonable person due to a difference in axioms.

    > You can’t do that.

    Certainly I can. We can argue about whether or not our particular cultural axioms should be regarded as a proper norm, of course. However, in order for us to be able to have a dialogue vis-a-vis this particular question, we have to accept at the very least that we will operate by mutually acceptable rules. If you want to declare as axiomatically true the idea that black persons are subhuman, I can take several different paths towards attempting to show you why your axiomatically “true” statement leads to a logical paradox or two, but if you will not accept reason as a justifiable method of dialogue, we can achieve no common ground. More on *that* later.

    > In any event, you cannot come up with
    > any standard that is compelled by reason

    I don’t know that this is true, provided you agree that any legitimate method of establishing social laws must be consistent… that is to say, you cannot have two axioms upon which you base your legal framework that can be shown to contradict each other. If you do not require consistency, then your legal framework is arbitrary and illogical, and I am not compelled to regard it with any authority (you of course are not required to acknowledge my rejection of your legal framework).

    That said, even were I to fail at establishing that there is a standard that is *compelled* by reason, that does not mean that such a standard cannot be used together with reason to provide a just legal framework.

    > … and there is nothing in our law that
    > is contrary to reason, even if it is
    > not derived from reason.

    I doubt that this is the case. Your law may not be contrary to your religious principles. Your law may not be contrary to your cultural norms. However, I find it very unlikely that your law can be expressed as root principles that are consistent. I’d have to actually dissect your legal code with truth tables to show this, of course (and since your country is fictional, as there is no country in which slavery is currently legal, I don’t expect any chance to do this).

    > If you think my standard is contrary to
    > reason, I must ask you for a definite,
    > unassailable, and self-evident standard
    > of “reasonable” criteria.

    For example, your law may state that “people who exhibit physical characteristic X are not to be regarded as persons.” This implies that changing physical characteristic X into physical characteristic Y by any means would elevate the entity into the class “person”. If skin color is the differentiation method, then it is perfectly acceptable for your black slave to paint himself white, and then be freed. It is likewise permissible for him to paint you black, and enslave you. If this is not a correct interpretation of your law, you must express the law in terms that are not capable of being interpreted in this manner. I doubt that you can do so while remaining consistent, but I welcome your efforts.

    > Slave owner: a chimp meets most of those
    > criteria, but I’m guessing you don’t
    > think that your list will “obviously
    > include a chimp.”

    Tangent: why would you assume that this is the case? It’s not, point of fact, but it certainly could be. The sapience and self-awareness of nonhuman primates is currently a matter of debate, but one can certainly make an argument that there exists sufficient empirical evidence to include chimpanzees as at least proto-sapiens.

    On point: “most” is not a sufficiency, obviously. A turnip is likewise alive, it doesn’t necessarily count. A cat possesses lungs, a central nervous system, and a level of cognition, but it doesn’t necessarily count.

    > And you still haven’t provided a definite
    > list.

    No, I have not, but at the moment we’re discussing your legal framework, not mine.

    > Surely you aren’t arguing that we must
    > recognize personhood on the basis of
    > those criteria–only that we can, right?

    I’m not certain I understand the objection. Are you saying that it is impossible to compose a finite list of characteristics that would serve as a basis for quantifying personhood?

    > There is no self-evident list of person-
    > hood factors that compels the inclusion
    > of black humans.

    I’m not certain that I have a suitable working definition of the term “self-evident”.

    There is no self-evident list of personhood that compels the inclusion of white humans, either. Or any humans, for that matter.

    Why must this list be self-evident? Properties can be inherent without being “self-evident”. “Self-evident” assumes that your current powers of observation are sufficient to accurately represent the phenomena you are describing. This is historically virtually never the case.

    > You suggest that you would use your
    > standard of arbitrary reasonable factors
    > of personness to march onto my property
    > and interfere with my ownership of
    > private property.

    Why am I obliged to recognize your concept of private property? What self-evident list of characteristics exists to define “property”, “privacy”, or the conjoin?

    Even if I agreed with your meta concept of private property, why am I obliged to acknowledge that you have a rightful claim to this particular property?

    Since you seem to be arguing that my legal principles do not apply in your domain, how can you then propose that your legal principles are in any wise relevant?

    > What warrants your interference with my
    > private affairs based on such an
    > invented list?

    That is a separate question, entirely. More on that later.

    > And what would make one list of factors
    > better than another?

    Consistency, as previously mentioned. If we can both agree on a set of principles, it becomes possible for use to agree upon extensions of those principles, allowing our societies to interoperate.

    > It’s my land surrounded by my fence, and
    > what goes on within my fence is none of
    > your concern.

    I am not required (again, by your own standard), to recognize your ownership of the property.

    > I have a right to liberty and enjoyment
    > on my land, so mind your own business
    > and stay off my land, and for that
    > matter, out of my country.

    I am also not required, in any way, to acknowledge your right to liberty or your national boundaries. This is by your own standard: if you are not required to acknowledge my legal principles, I’m not required to acknowledge yours.

    Now, admittedly, the question of what is to be done if you refuse to acknowledge my legal principles is a question in and of itself. I may choose to continue to attempt to dialogue with you. I may choose to attempt to bring about a change in your society that reflects a closer approximation to what I believe your society ought to accept as root principles, either by active political action inside or outside your country, or by the imposition of economic forces such as sanctions. I can choose to invade your country and kill off all the slave owners and give all the land to the slaves, in an attempt to correct the injustice of your socioeconomic system. All of these of course have consequences and implications for my own ethical moral standing within my society’s framework. But yours don’t count for me, any more than mine count for you.

    Or do they, perhaps, count for you to some degree?

    > For you to suggest that there is some
    > standard of “personness” to which our
    > law must aspire is to apply your private
    > morality and religion to me. And you
    > said you wouldn’t do that.

    On the contrary, I said nothing of the sort. I said I could not impose my religion upon members of my own society. You are outside my society.

    However, there is nothing that says that we cannot establish a standard of “personness” that will operate effectively within both our nations. This is, in fact, a perfectly reasonable approach, as anyone who is considered a person in either country would be considered a person in both countries. This is not an imposition of either country’s morals *upon* the other, but an acceptance of a superset union of morals. If we are both capable of expressing our morals consistently this should hardly be difficult.

    > Even you believe that the category of
    > legal “persons” is more narrow than
    > living human organisms.

    I did not necessarily say that. I said that categorizing “persons” in legal terms using some sort of “list of properties” was possible.

    Again, if we only define “persons” as “living human organisms”, we have no capability whatsoever of extending any of our legal concepts to cover any sort of non-human intelligence. While there is no guarantee that non-human intelligences exist or will exist, there is no reason why we should build our entire legal framework upon “humanness” as the sole criteria.

    Put another way, establishing “living human organisms” as your criteria is just as arbitrary as establishing “living human *white* organisms” or “living human *male* organisms”. What is the difference between the first and the other two? Neither “white” nor “male” are metaphysical concepts, so they are as demonstrably empirical as “living human organisms”. “Living”, itself, can be regarded as a metaphysical concept: is someone in suspended animation “living”? Is someone in a coma under full life support “living”? Is someone in cryogenic freeze “living”?

    It follows, then, that “living”, “adjective”, “species” definitions for personhood are at least partially unsatisfactory.

  13. padraic2112 Says:

    re: comment #11

    > The question is not whether an unborn
    > child has a right to life (even though
    > I contend he/she does); it’s about
    > whether a mother or doctor deserves to
    > be criminally punished for killing
    > innocent human lives.

    This is an entirely different game, altogether (and, in fact, IMO a much easier case for you to make). Until I get a chance to read through your post, I’m not certain what I’m going to think of it, because I’ve heard two versions of this before (one of which I thought was quite good and the other one of which was very weak). But I have to admit I’m looking forward to it 🙂


  14. Responding to your latter comment (#13) first…

    This is an entirely different game, altogether (and, in fact, IMO a much easier case for you to make). Until I get a chance to read through your post, I’m not certain what I’m going to think of it, because I’ve heard two versions of this before (one of which I thought was quite good and the other one of which was very weak).

    Well, I do believe it’s the game we started out playing. You said that you couldn’t make a secular case for the pro-life position that abortion should be illegal. (Your specific words were: “I’m *not* pro-life in the sense that I don’t believe that the law is actually the correct venue in which to tackle this moral dilemma, for the simple reason that I have no basis (other than my own theology) to regard a woman’s pregnancy or lack thereof as any of my business”.) If I can make the secular case for criminalizing abortion, I have done exactly what I set out to do.

  15. Tim Says:

    Well, I’m convinced. Seems to me that NaturalLawyer succeeded in making a case for criminalizing abortion based on secular standards, though the duties of parents toward children which some of the argument was based on were not clearly delineated. Padraic tried to poke holes in NL’s argument, but most of the attacks didn’t stick. Most importantly, even if Pad had succeeded, he did not present any alternative system for evaluating the responsibilities of the parties involved.

    Not all of the philosophical/moral issues were resolved, but the case seems sufficiently proven for legal purposes.


  16. Tim: just to be clear, my legal case was independent of the discussion of the duties of parents. The legal case against abortion homicide need not rely on the duties of parents, but the claim that humans have no positive right to care is, at least in part, belied by the duties owed to them.

    As to the extent and nature of those duties, I consider those parental duties to exist in nature itself. Various cultural expressions of such natural duties are set forth in the appendix to C.S. Lewis’ Abolition of Man (http://www.columbia.edu/cu/augustine/arch/lewis/abolition4.htm), including:

    ‘Nature produces a special love of offspring’ and ‘To live according to Nature is the supreme good.’ (Roman. Cicero, De Off. i. iv, and De Legibus, i. xxi)

    Furthermore, we currently recognize and codify such duties in California law:

    “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”
    California Penal Code § 273a(a).

    (That is just one such statute. There are also other similar laws, probably with harsher punishments, but I picked this one to avoid having to read the Penal Code anymore than I have to.)

  17. padraic2112 Says:

    > But criminal law isn’t about vindicating
    > rights. It’s about punishing wrongs.

    This is a debatable characteristic in and of itself, but okay, let’s go there instead.

    > The question is whether a mother or
    > doctor deserves to be criminally punished
    > for killing innocent human lives.

    Okay. In this context, then you need to show that (a) the mother or doctor is necessarily ending the life in question (b) the life is innocent and (c) the life is human.

    > I believe I’ve made the case that unborn
    > humans are human organisms that are alive.
    > There’s not really any reasonable dispute.

    I don’t believe you have. I believe that you think you have, but I don’t accept your summation. However, okay, let’s say for the sake of discussion that I’ll accept that a human fetus is considered “alive”, and fully “human”.

    > The status of innocence is easily out-
    > lined without respect to religion. I can
    > do so through the use of a secular legal
    > tool that knows nothing of religion.
    > Every law student’s best friend, Black’s
    > Law Dictionary (7th ed.). “Innocent”
    > is defined as “Free from guilt; free
    > from legal fault. NOT GUILTY.” Further,
    > “Guilt” is defined as “The fact or
    > state of having committed a wrong, esp.
    > a crime” (note that a crime is not
    > necessary, but “having committed a
    > wrong” is). By that secular legal
    > definition, it is utterly absurd to
    > think that an unborn child could ever
    > be anything but innocent.

    On the contrary, in order for this definition to apply, one has to accept that the organism in question is capable of guilt. You have yet not at all addressed this point, from when I brought it up earlier.

    Something can be innocent, or guilty, or *neither*. We would never say that a dog is guilty of a crime, because a dog has no volition (nor do we say that an insane person is guilty of a crime, in fact we recognize in our legal system non compos mentis is a legitimate defense).

    You’re completely ignoring the “neither” case. In fact, you’re discounting the possibility of its existence by the phrase “utterly absurd”.

    Why is it utterly absurd? Certainly at points in the development cycle the fetus does not contain a working neural system. It has no ability of cognition. The dog, in fact, has more mental capability than the fetus.

    Heck, any one of a number of feed animals we routinely slaughter and consume has demonstrable mental capabilities that a pre-second trimester fetus does not have.

    > It’s easy to make the case that women
    > were meant to bear children and designed
    > for such an experience.

    On the contrary, it’s hugely easier to make the case that they were hardly well designed for such an experience. Before the advent of modern medicine, a staggeringly high percentage of them died in childbirth. Death in childbirth was actually the leading cause of death for women.

    Even if we accept that they were designed as such, we would have to accept that the intentions of the designer are ones that we must acknowledge with a moral obligation. This totally requires a faith judgment. Sorry, even if I grant you that we’re designed by a Designer for a purpose, that doesn’t mean I’m obligation to follow the wishes of the Designer.

    Unless, of course, we bust out religion again.

    > Are you willing to make all abortions
    > illegal except in the case of rape?

    I am willing to make all abortions illegal except in the case of rape provided the technology exists to provide an alternative. If the child can be removed from the womb and given a life sustaining environment, then certainly the right of the woman to terminate the pregnancy still exists, she just no longer gets to terminate the fetus along with the pregnancy. Yes, this even extends to the case when the fetus has no demonstrable cognition, because again there is no burden to the woman to preserve the life.

    > To borrow an example from Frank Beckwith,
    > if I told you there was a machine on
    > which you could push a button and you
    > would get an orgasm but a baby would
    > immediately pop out the side, could you
    > deny that you have a duty to that child?
    > It is obvious that you would.

    Me? Yes, I believe I would have a duty to that child.

    This is a terrible analogy to pregnancy, however, given that a vanishingly small number of sexual encounters result in childbirth.

    Let’s change that analogy, shall we?

    Instead, we’ll take a box where when you hit the button, 80 times out of 100 when you push the button you have an orgasm, and the last 20 out of 100 you get a pregnancy (not necessarily a baby). Unless you flip the switch on the side of the box, and then it’s only 1 out of 100. And when you get a pregnancy, the pregnancy is inside the box and you only have a 1 in 5 chance of having the baby pop out of the box 9 months later. Now we’re going to take that box and give one to every person on the planet over the age of 13. We’re not going to tell everyone what the box does. We’ll put labels on them, but really tiny and in legalese and actually tell adults that they have the right to not tell anyone under the age of 18 in their household what the boxes do, or what the switch is for. We’ll actually pass laws to make it difficult for people to tell people under the age of 18 what the box is, how it works, why it works, and what the lever is for.

    I will say that it is truly unreasonable to expect that all the babies that result from this box distribution can be regarded as having obligatory parents.

    I am a self-aware reasonably rational human being. I don’t expect that everyone else is.

    > It is established through scientific fact,
    > reason, and the laws of nature. No
    > religious belief is required.

    On the contrary, religious belief is required, you’re just not noting it when it’s required.

    * It’s required to assume the Designer exists.
    * It’s required to assume that the Designer has a purpose.
    * It’s required to assume that the Designer’s purpose is one we have a moral obligation to follow.
    * It’s required to assume that the non-cognitive fetus qualifies as “innocent” (amusingly, in my particular faith background, the converse is actually the case, and this is *why* the Roman Catholic church historically objected to abortion, because there was no baptism and no cleansing of original sin).
    * It’s required to assume the mother has an obligation to the child.

    Note, I’m still not saying that any of your underlying principles are, in a moral sense, incorrect. But I disagree strongly that in the given context of our legal framework that you have the right to impose this moral judgment on everyone else in the country. It requires the law to acknowledge and establish those required assumptions on faith into the legal code.

    The best way to stop abortions is not to try and make them illegal. The best way to stop abortions is to stop unwanted pregnancies and assist those who would have the baby if they had the wherewithal to support it.


  18. I’m going to be a bit hard on you in this comment because I think your objections deserve a tougher response now.

    You Failed to Acknowledge the Shifted Burden of Proof

    At the very outset, I’ll note that you’ve completely ignored the shifted burden of proof against the defendant (to prove that an unborn child is not alive and not a person). This is the death knell to your entire objection, and you’ve simply avoided it. On that ground alone, your objections have no merit, because you do not claim to have proved the case that an unborn baby is not alive (which you can’t, because you think abortion is immoral, which means you know that an unborn baby is a little different than a cyst).

    I believe I’ve made the case that unborn humans are human organisms that are alive. There’s not really any reasonable dispute.

    I don’t believe you have. I believe that you think you have, but I don’t accept your summation. However, okay, let’s say for the sake of discussion that I’ll accept that a human fetus is considered “alive”, and fully “human”.

    Please see my “three rooms” question below for my response.

    Legal Innocence is the Absence of Guilt

    The status of innocence is easily outlined without respect to religion. I can do so through the use of a secular legal tool that knows nothing of religion. Every law student’s best friend, Black’s Law Dictionary (7th ed.). “Innocent” is defined as “Free from guilt; free from legal fault. NOT GUILTY.” Further, “Guilt” is defined as “The fact or state of having committed a wrong, esp. a crime” (note that a crime is not necessary, but “having committed a wrong” is). By that secular legal definition, it is utterly absurd to think that an unborn child could ever be anything but innocent.

    On the contrary, in order for this definition to apply, one has to accept that the organism in question is capable of guilt.

    No, you don’t. A baby isn’t capable of doing math. Does it follow that the statement “the baby doesn’t do math” is incorrect because it isn’t capable of doing math? One doesn’t have to be capable of doing something in order not to have done it.

    The quality of innocence (as defined in Black’s Law Dictionary, which you can’t possibly think is religious revelation) is merely the absence of having done something to make one guilty. In this sense, even a rock is “innocent” because it has not and cannot be guilty. I am not contending that innocence is some sort of positive quality; it is merely the absence of guilt. See Black’s Law Dictionary.

    Something can be innocent, or guilty, or *neither*. We would never say that a dog is guilty of a crime, because a dog has no volition (nor do we say that an insane person is guilty of a crime, in fact we recognize in our legal system non compos mentis is a legitimate defense).

    There is no “neither.” A dog is “innocent” (Black’s Law Dictionary) in the sense that it is not “guilty”. Under the law, there can be innocent animals and innocent bystanders and innocent infants—none of them are guilty, meaning none has incurred any moral, civil, or criminal liability. It really cannot be clearer. Either you have done something to incur guilt, or you have not. There is no “neither.” It’s a light switch with two positions. (There may be situations where we can’t decide whether an action incurs guilt or not, but there still is no third option.)

    Why is it utterly absurd? Certainly at points in the development cycle the fetus does not contain a working neural system. It has no ability of cognition. The dog, in fact, has more mental capability than the fetus.

    Heck, any one of a number of feed animals we routinely slaughter and consume has demonstrable mental capabilities that a pre-second trimester fetus does not have.

    It’s utterly absurd because a baby cannot have done anything to incur guilt. If you’d like to try to demonstrate what a baby has done to be considered guilty (let alone worthy of death), I’d love to hear it. But legal innocence is merely the absence of guilt, and a baby is not guilty of anything, at least in the eyes of the civil and criminal law. Remember, we’re talking Black’s Law Dictionary “innocence” here. There is no religion or hocus pocus involved. Please prove that the baby is guilty of something and I’ll accept that it’s not innocent. But since I’m the one who inserted the term “innocence” into the debate, I’d appreciate it if you’d use my understanding of “not guilty” without all your religious hoopla. With that in mind, I’m pretty sure if I told a fifth grader that “innocent means not guilty” and “a baby is not guilty,” the child could figure out that a baby is innocent under these terms.

    As for noting that animals have more mental capabilities than a fetus, are you arguing your case or mine? I specifically noted this fact earlier in arguing that mental capabilities cannot be the pivotal factor in personhood (because we do not consider animals to be people). Rather, it is the bare fact that one is human that makes the killing immoral and illegal.

    The Three Rooms

    A hypothetical for you, with several questions:

    Well into the future, doctors and scientists have made a lot of headway in building the basic parts of living cells and creatures. They can assemble them from the most basic material “parts,” right down to the DNA, amino acids, proteins, and whatever different non-living basic parts those are made of (I’m no scientist, so all I mean is that any matter with more basic parts can somehow be assembled from those basic parts by the scientists).

    In lab room #1, the scientist/doctors assemble a human embryo (homo sapiens genetic structure) from non-living pieces of matter. They grow the embryo in an “artificial womb” environment (you’ve already noted earlier that this is possible), one which resembles an incubator used for premature babies after their birth. The embryo is provided all necessary nutrients, all from non-living sources. If milk or other fluids from another human are required (those that would be supplied by a mother’s body), they are built in the same way that the embryo was built to begin with. All components are supplied with compatible and optimal genetics, all built out of non-living basic building blocks.

    Thus, this embryo is grown into a child, but it is never “born.” The scientists don’t remove the child from the incubatory environment until over a year after creation, even though it would’ve been born at nine months in the natural course of things. After all, it’s not as though any parents necessarily want to take the child home (no biological parents exist). The healthy child is removed from the environment one year after the biological assembly of the embryo and DNA.

    In lab room #2, quite similar to room #1, the scientists assemble the DNA of a rabbit, build the embryo, and watch it reproduce. They feed it just as in room #1. It grows into an adult rabbit, which they keep in a cage.

    In lab room #3, again similar to the other rooms, the scientists assemble the DNA of an oak tree in the form of an acorn. They build the acorn, supply it all necessary nutrients from non-living building blocks (including nutrients ordinarily supplied in soil, sunlight, water, etc.), and watch it grow. Though they never bury it in any soil, the creative scientists provide sufficient nutrients that it grows into a living oak tree in the lab environment, which they keep in room #3 because they like the greenery.

    For each room: (1) At what point would a scientist claim that the organism he/she created is “alive”? (2) At what point would scientists be able to classify distinctions between the organisms, such as “species”? (3) Did any of the organisms change species at any point?

    Questions specific for lab room #1 (these are the most important): At the outset, what is this organism? when is it wrong to kill this organism, if ever? When should it be illegal to kill this organism? Why? (If not until adulthood, I still want to know why killing the adult should be made illegal, unless you think murder should be legal.)

    Questions specific for rooms #2 and #3: If you think it is at some point wrong (and should be illegal) to kill the child in room #1 (or if you’ll admit it was wrong and should be illegal from the outset), is it wrong to kill the beings in #2 and #3, and should those killings be illegal? If not, what is it that distinguishes the organism in room #1 from those in rooms 2 and 3 that would permit the killing of one/some but not the other(s)?

    If you fail to answer these questions, I’m going to keep asking them until you do. So please don’t forget.

    The Legal Argument Does Not Include an Argument from Design or Religion

    I’m not going to address your arm-waving over the design of women and pregnancy in this comment, because it’s irrelevant if you don’t have a valid counter-argument to the legal case. Our “design” discussion was a subset of the tertiary “rights” discussion completely apart from the legal case against abortion, that is, the case you have done nothing to rebut. The secular legislator has no need for such an irrelevant argument, because the secular criminal law provides all he or she needs to criminalize abortion. Your “rights” discussion about design, religion, etc. is of no moment to the legal case I set forth.

    That legal case was in my comment under the bold heading “Abortion and Criminal Law”, before the section on rights, which I addressed solely as a tertiary theoretical matter. In the latter section, I considered religion and philosophy a bit more fair game, but obviously the criminal legal case was independent of that (you can scour that section for religion and you will not find it). For instance, we can criminalize the killing of owls without discussing whether owls have rights. We can criminalize cutting down a rare species of trees without discussing whether trees have rights. The rights of the unborn child, or non-existence thereof, are irrelevant to the fact that killing the unborn child is already homicide under the laws of numerous states, including California, and abortion should not be excused because the burden of proof cannot be carried by the abortionist. You have yet to meaningfully respond to that argument.

    You later go on to claim that the legal case against abortion cannot be made because it rests on the following alleged assumptions:

    * It’s required to assume the Designer exists.
    * It’s required to assume that the Designer has a purpose.
    * It’s required to assume that the Designer’s purpose is one we have a moral obligation to follow.
    * It’s required to assume that the non-cognitive fetus qualifies as “innocent” (amusingly, in my particular faith background, the converse is actually the case, and this is *why* the Roman Catholic church historically objected to abortion, because there was no baptism and no cleansing of original sin).
    * It’s required to assume the mother has an obligation to the child.

    First, it’s not required to assume that the Designer exists because my criminal legal argument did not rely in the least upon the design of anything. Homicide is homicide. Abortion should not be an excused homicide because the killer cannot sustain the burden of proof that the unborn child is not alive or a person. One might philosophically conclude that if homicide is immoral (as we all know it is), and morality requires a transcendent moral code author, then God must exist, but that’s a conclusion one might draw, not an assumption. Either way, the moral argument for God’s existence is not required to make the murder of adults or unborn humans illegal.

    I’ll also note that your caricature of the Roman Catholic Church’s doctrine is grossly askew. It will take you only a couple clicks of the mouse to learn how far your statement missed the mark. But even under your presentation of the Church’s doctrine, if the fact that unborn children were not “innocent” could justify the murder of the unborn, it likewise would justify the murder of adults (none of us are “innocent” in the original sin sense). But in any event, the Church’s teaching on abortion is in fact plainly based upon the commandment “You shall not kill,” and not on the doctrine of original sin or baptism, as I explained in detail in this subsequent post. Your characterization of Roman Catholic doctrine is remarkably different than the Catechism (quoted in the aforementioned post). Further, I provided above the legal definition of “innocence” out of Black’s Law Dictionary, which isn’t really concerned with the Catholic Church’s thoughts on the matter anyway. It’s not theological innocence at issue, it’s legal innocence, which is merely the absence of legal guilt. Question you must answer: is Black’s Law Dictionary a religious work? If not, your hand-wringing over “innocence” is a red herring.

    As an aside, everyone knows a mother has an obligation to her child (though the legal case against abortion was not founded on this obligation). Are you really suggesting that we change all of the laws on the books that rely upon parental obligations because they rely on an impermissible assumption? Now that is a novel suggestion! Imagine how many laws you’d be abolishing.

    Note, I’m still not saying that any of your underlying principles are, in a moral sense, incorrect. But I disagree strongly that in the given context of our legal framework that you have the right to impose this moral judgment on everyone else in the country. It requires the law to acknowledge and establish those required assumptions on faith into the legal code.

    You haven’t even addressed the criminal “legal framework” argument that I set forth (and it quite clearly did not invoke any matter of faith). You’re skipping over it and making a new argument that we can’t impose moral judgments on people through the law. But you specifically said earlier in the previous thread, “I am not claiming that the law should remain morally neutral.” The religion-free (even if moral) case has been made and you’ve just ignored it. Nothing in the argument relied in the least on revealed theology or church teaching. It was all black-letter law, law school stuff. I think you’re now grasping at straws and ignoring the meat of the argument because you simply don’t want to acknowledge that the secular case against abortion can be, and has been, made. Perhaps because you know it would require that you change your mind and behavior.

    The best way to stop abortions is not to try and make them illegal. The best way to stop abortions is to stop unwanted pregnancies and assist those who would have the baby if they had the wherewithal to support it.

    This comment flies in the face of common sense. The best way to prevent Southern lynchings isn’t to make them illegal, it’s to teach the KKK to be loving toward all races… In any event, justice requires that abortion be punished, even if there are other ways to prevent abortion (there may be other ways to prevent theft or lynchings, but we still punish thieves and lynchers because they deserve it). I believe that the millionaire abortion doctors are more culpable than the mothers, so punishments may be assigned accordingly. But the key is that criminal law isn’t principally about preventing injustice, it’s about punishing it. If you want to take up arms against that premise, I ask you to post that comment here.

    Change of Subject: Where Do These Alleged Rights Come From?

    Finally, I have another question, harkening back to a different thread: for all these rights that you toss around (e.g., “rights of a ‘to be’ pregnant woman to decide that she will not provide a life support environment to a fertilized egg”)—which are not necessarily relevant to the legal case—where do these rights come from? More to the point, your entire objection rests on a dogmatic commitment to the purported right of a woman to be relieved of her pregnancy and parental responsibilities (you said: “I am willing to make all abortions illegal except in the case of rape provided the technology exists to provide an alternative“). Thus, your argument is that the law must recognize a right to a technological alternative to pregnancy. Where does this right come from? It can’t be simply from the human law, because we’re discussing what the human law should be (I don’t expect you’ll give me that circular argument). There can be but one other source for this purported right: the metaphysical laws of God/nature. How do you know such rights (to a technological alternative to pregnancy, or not to be pregnant) exist? Where do such rights come from? Isn’t your assumption that this right exists (in nature or from God) every bit as dogmatic (and faith-based) as a belief that no innocent human should be killed? You cannot prove that the rights you assert exist, and you can’t merely assert that they should exist; you simply take it on faith. So the ball is in your court. Where does this right that you espouse, and use to justify the murder of millions of babies, come from? God?

    I suspect that your answers to these questions, as well as the Three Rooms hypothetical, and the question about whether Black’s Law Dictionary is a theological work, will unearth some very questionable assumptions on your part.

  19. padraic2112 Says:

    Let us assume for a minute that I will grant your “legal framework” argument (I don’t, but let’s say I do).

    Then you would be forced to accept a rejection of your position if the “legal framework” changed. In other words, if your argument depends upon a definition set in the legal code, and the legal code changes, your argument is no longer valid. In other other words, to overcome your objection, all I would need to do is pass legislation that formally said, “A human person, according to the legal code, is someone who has been born”.

    Yes?

    I believe that the entire crux of this discussion is best resolved by focusing on this issue:

    > You Failed to Acknowledge the Shifted Burden
    > of Proof
    >
    > At the very outset, I’ll note that you’ve
    > completely ignored the shifted burden of
    > proof against the defendant (to prove
    > that an unborn child is not alive and
    > not a person).

    The rest of this discussion is largely secondary to this contention. We began with the burden of proof on the “pro-life” side to show that the fetus was both alive and ought to be regarded as a human person (not explicitly, I grant you, but your arguments and mine both presupposed that the basis of our conversation was thus).

    You are now positing that this is incorrect and that the converse is the case; the burden of proof lies on the pro-choice side to show that the fetus is *not* alive or ought not to be regarded as a human person.

    > This is the death knell to your entire
    > objection, and you’ve simply avoided it.

    It’s not the “death knell”, by any means, but I’ll grant you that whichever side has the burden of proof does indeed have the uphill climb.

    I haven’t avoided it, but then you haven’t given a robust reason for changing the entire grounds of the debate 9/10ths of the way through, either 🙂

    Okay, though, let’s ignore the rest of this discussion for the time being and resolve this issue, since this is (in my opinion) the real question that makes most of the rest of our discussion moot.

    In order to prove a statement to be empirically true or false, we need a evidentiary framework. If the burden of proof is on one side (Alice) to show another side (Bob’s) beliefs to be false, it behooves Bob to tell Alice what the standard of proof actually is.

    Let us presuppose for the moment that the question of who holds the burden of proof is not resolved. If we decide that the burden of proof falls on the pro-life side (as we started), then it would fall upon the pro-choice side to provide a falsification standard by which the pro-life side could make their case. I would say that I’ve been doing that, indirectly, but here would be a set of criteria that I might offer:

    * If it can be shown that an organism has brain function of (this quantifiable sort), it must be regarded as a human person.”
    * If it can be shown that an organism is capable of recognizing guilt, it must be regarded as a human person.”

    I can make the list longer, of course. We can argue about the list, as well. But let’s avoid that for now, because you’re making the case that the burden of proof lies upon me, and not you.

    To make a case for the pro-choice side, then the context of the debate now *depends* upon the pro-life side. It is up to the pro-life side to provide a list of criteria which would falsify their proposition.

    I have attempted to do this, historically, and have been unable to do so without depending upon either a non-objective standard, a theological argument, or a tautology. If you can, I’m interested in hearing it.

    In other words, you stand by the proposition that “a fetus must be considered as a human person with all the rights pertaining thereto.” By what criteria would you accept that your proposition is incorrect? Without knowing your standard of evidence, it is impossible for me to provide a body of evidence that meets your standard; whatever criteria I offer, you can simply say, “That’s not enough”, and the debate continues.

    So I ask you, by what *measurable means* can I show to you that any thing (be it a fetus, an adult human, or otherwise) should *not* be considered a human person?

    If you cannot establish a falsification standard, then it is impossible for me to convince you that you are incorrect, and we cannot proceed with any chance of resolution.

    If you’re going to rely upon axiomatic declarations, you must admit the weakness of that position. Drawing back to the top example, if you posit that Black’s Law dictionary makes the question of innocence plain (again, I don’t agree with your interpretation, but let’s say I do), then all the pro-choice crowd needs to do is change the definition of innocence through legislation, and your legal argument no longer holds water and can be ignored. If you posit that “abortion is homicide, by definition” (which again, I don’t agree with, but okay, let’s assume I do), again I can change the definition of homicide explicitly in the legal code and your argument is no longer valid.

    I will state that I believe it is impossible for you to provide such a standard without relying upon tautologies or non-empirical measurements.

    We can table the remaining questions of this thread for the nonce, I believe.

  20. padraic2112 Says:

    This is not intended as a major response or a distraction from the last post, but I don’t want you to accuse me of dodging this question:

    > Where do these rights come from?

    Why does this matter?

    You’re implying the same (or semantically similar) ontological existence statement that Aquinas made, “These rights come from… ” something, you’re not very clear whether this something is “nature” or “God”, but it is apparent you believe they come from somewhere.

    What does it matter where the rights come from, if we agree to recognize them as rights? If we can agree, as intelligent beings, to establish a framework of rights, why does it matter if you believe those rights come from a source and I do not (presupposing, of course, that I don’t)?

    I’ve read Aquinas and Aristotle, but I’ve also read Kierkegaard, and Descartes, and Kant, and Hume, and a few dozen others, and there are numerous objections and counters to the natural law ontology. Do I need to enumerate them here; is this some sort of comparative philosophy test?

    > I’ll also note that your caricature of
    > the Roman Catholic Church’s doctrine
    > is grossly askew.

    Ah, no, it’s not, but I brought up an element of doctrine to make a particular point and I think you’re generalizing it somewhat in the wrong direction.

    The comment about original sin was to make the point that it is possible, using a Natural Law framework (in this particular case, the Catholic Church dogma, which corresponds effectively), to state that the unborn are by definition *not* innocent. They are guilty, as are all humans, of original sin. Apologies if I wasn’t clear.

    In the particular case of Catholic dogma, this history regarding abortion is rather convoluted. Yes, it is a given that “abortions” have been forbidden, by one name or another, and by some definition, since about the time the institution that we call the Roman Catholic church assumed (more or less) its current hierarchical structure.

    However, it is certainly the case that the Roman Catholic church’s official stance on abortion has not been static and unchanging. Gregory XIV forbid the abortion of “quickened” child (in historical context, a “quickened” child was 40 days for a male child and 80 days for a female child, officially). Many, many Catholic theologians argue that the Church has always held that life begins at conception and that this has been a universal teaching of the Church, but that is demonstrably not true; while one can find theologians from virtually every period of Church history who state this baldly, there is ample evidence to indicate that the Church itself has held numerous nuanced views, in codified dogma, throughout its history.

    Quoting the Catholic Encyclopedia:

    “The Catholic Church has not relaxed her strict prohibition of all abortion; but, as we have seen above, she has made it more definite. As to the penalties she inflicts upon the guilty parties, her present legislation was fixed by the Bull of Pius IX “Apostolicae Sedis”. It decrees excommunication — that is, deprivation of the Sacraments and of the Prayers of the Church in the case of any of her members, and other privations besides in the case of clergymen — against all who seek to procure abortion, if their action produces the effect. Penalties must always be strictly interpreted. Therefore, while anyone who voluntarily aids in procuring abortion, in any way whatever, does morally wrong, only those incur the excommunication who themselves actually and efficaciously procure the abortion. And the abortion here meant is that which is strictly so called, namely, that performed before the child is viable. For no one but the lawgiver has the right to extend the law beyond the terms in which it is expressed. On the other hand, no one can restrict its meaning by private authority, so as to make it less than the received terms of Church language really signify. Now Gregory XIV had enacted the penalty of excommunication for abortion of a “quickened” child but the present law makes no such distinction, and therefore it must be differently understood.

    That distinction, however, applies to another effect which may result from the procuring of abortion; namely, he who does so for a child after quickening incurs an irregularity, or hindrance to his receiving or exercising Orders in the Church. But he would not incur such irregularity if the embryo were not yet quickened. The terms “quickened” and “animation” in present usage are applied to the child after the mother can perceive its motion, which usually happens about the one hundred and sixteenth day after conception. But in the old canon law, which established the irregularity here referred to the “animation” of the embryo was supposed to occur on the fortieth day for a male child, and on the eightieth day for a female child. In such matters of canon law, just as in civil law, many technicalities and intricacies occur, which it often takes the professional student to understand fully. In regard to the decisions of the Roman tribunal quoted above it is proper to remark that while they claim the respect and loyal adhesion of Catholics, they are not irreformable, since they are not definitive judgments, nor do they proceed directly from the Supreme Pontiff, who alone has the prerogative of infallibility. If ever reasons should arise, which is most improbable, to change these pronouncements those reasons would receive due consideration.”

    It is now considered a tenet of the faith that life begins at the moment of conception, but this is not a historically constant bit of dogma, by any means.

    But, the important post is the last one 🙂

  21. padraic2112 Says:

    (for the record, one of the purposes for the International Theological Commission in 2006 was to answer the question of the consequences to the unborn of abortion, given the lack of their access to baptism and the cleansing of Original Sin, see http://www.catholic.org/international/international_story.php?id=21542 or the findings of the commission on the Vatican web site if you’re interested in reading more).


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