Abortion Public Policy: What is the author's position and what is he/she doing with it? Why?

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JETS 32/4 (December 1989) 503-518

ABORTION AND PUBLIC POLICY: A RESPONSE TO SOME ARGUMENTS

FRANCIS J. BECKWITH*

In a recent article Virginia Ramey Mollenkott defends the proposition that the pro-choice position on abortion is more consistent with Christian ethics than the pro-life position.1 I define the pro-life position in the following way: Full humanness begins at conception, and hence the unborn child has a right to life unless his life must be forfeited in order to save the life of his mother, since it is better that one human should die rather than two. I define the pro-choice position in the following way: The woman who has conceived has an absolute right to terminate her preg- nancy from the moment of conception until the ninth month of pregnancy for any reason she deems fit. Although some in both camps may not entirely agree with these definitions, in terms of the popular debate we observe on the evening news the definitions seem for the most part accurate.

My strategy in this paper is to respond to the pro-choice position by using Mollenkott's article as my point of departure, although I will deal with arguments I believe Mollenkott alludes to but does not specifically present: (1) I will briefly deal with a number of popular arguments. (2) I will critique some philosophical arguments. (3) I will deal with some theological arguments. (4) I will concern myself with an argument against the public policy of prohibiting abortion-on-demand.

I. POPULAR ARGUMENTS2

There are a number of popular arguments that are put forth by people in the pro-choice movement and that seem to be implied, although not specifically articulated, in Mollenkott's article. Unfortunately the popular pro-life camp has not adequately responded to these arguments but has settled for putting forth arguments of similar logical weakness. Space does not permit me to cover all the pro-choice arguments, so I have selected the ones that seem to be the most popular and that the pastor or

* Francis J. Beckwith is lecturer in philosophy at the University of Nevada in Las Vegas. 1 V. R. Mollenkott, "Reproductive Choice: Basic to Justice for Women," Christian Scholars'

Review 12 (March 1988) 286-293. All references to page numbers in this article will be cited in the text in parentheses.

2 I would like to thank Mark Wiegand for the countless nights in which we analyzed and discussed these and other popular arguments.

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teacher will most likely face when questioned by the media at pro-life rallies.

1. Are you going to take care of the child after it is born? This bit of rhetoric can be distilled into the following assertion: Unless the pro-lifer is willing to help bring up the children she does not want aborted, she has no right to prevent a woman from having an abortion. As a principle of moral action, this seems to be a rather bizarre assertion. Think of all the unusual precepts that would result: Unless I am willing to marry my neighbor's wife, I cannot prevent her husband from beating her; unless I am willing to adopt my neighbor's daughter, I cannot prevent her mother from abusing her; unless I am willing to hire ex-slaves for my business, I cannot say that the slaveowner should not own slaves.

By illegitimately shifting the discussion from the morality of abortion to the moral character of the pro-lifer, this argument avoids the point at issue. Although a clever move, it has nothing to do with the validity of either the pro-life or pro-choice positions. In fact the argument commits the argumentum ad hominem fallacy, which occurs when one attacks the person who is defending an argument rather than the argument that the person is defending.

2. / / abortion is made illegal, then we will return to the day of coat- hanger and back-alley abortions. This emotionally charged argument has little going for it logically. It commits the fallacy of begging the question, which occurs when one assumes what one is trying to prove. For if abortion results in the death of the unborn (and no one in the pro-choice camp denies this), this argument is successful only if the arguer assumes that the unborn are not fully human. But if the unborn are fully human, this argument is tantamount to saying that because people die while killing other persons the state should make it safe for them to do so. And since it is obvious that the pro-choice advocate by using this argument does not approve of the needless death of human persons, it follows that he cannot use this argument unless he assumes that the unborn are not fully human. Therefore only by assuming that legal abortion does not result in the needless death of human persons does the pro-choicer's argument work. Hence the abortion question hinges on the status of the unborn, not on emotional and question-begging appeals to coat hangers and back alleys.

3. Prohibiting abortion will not prevent rich women from having abor- tions by traveling to countries where it is legal. This argument of course assumes either one of two things if abortion-on-demand is made illegal: (1) Abortion is a moral good that poor women will be denied and to which rich women will have access, or (2) childbirth is a moral burden that rich women can avoid but poor women will have foisted upon them. In any event, the argument is asserting that if abortion is made illegal there will be an unfair distribution of either goods or burdens. But since the morality of permitting abortion is the point under question, the arguer assumes

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what he is trying to prove and therefore begs the question. For would we not consider it bizarre if while debating over the morality and legality of snorting cocaine someone argued that cocaine should be legalized because if it remained illegal only rich people would be able to afford it and have privileged access to it? One is putting the cart before the horse when one appeals to the possible unfairness of not having equal access to abortion prior to sufficiently defending the view that possessing the choice to have an abortion is in fact a moral good. For this is the crux of the entire debate. In other words, the question of whether it is fair that certain rich people will have privileged access to abortion if it is made illegal must be answered after we answer the question of whether abortion is in fact the killing of an innocent human person. To bypass this question by appeal- ing to fairness is simply silly.

4. Pro-lifers are trying to force their religious beliefs on others. Un- fortunately, this argument is fueled by well-meaning Christian pro-lifers who argue strictly from the Bible. Although this may be helpful in convincing those in the Christian community, it is not very convincing for those outside it. In terms of political strategy it is not a good idea to give the appearance to the opposition that the basis of the pro-life position is strictly theological. For this reason I suggest that pro-life leaders put greater emphasis on philosophical and scientific arguments when engaging in public debate. In this way, by emphasizing that there is nontheological support for their position (and there is plenty), they will be able to undercut the pro-choicer's intellectually irresponsible claim that the pro-life movement is trying to force its "religious" views on others.

The pro-life movement could then argue from the fact that just because a philosophically plausible position may also be found in religious litera- ture, such as the Bible, that in itself does not make such a position exclusively religious. For if it did, then we would have to dispense with laws forbidding murder, robbery, and so forth, simply because such actions are prohibited by the God of the Hebrew-Christian Scriptures. Furthermore public policies, such as civil-rights legislation, elimination of nuclear testing, and increase of welfare, which are supported by many clergymen who find these policies in agreement with and supported by their doctrinal beliefs, would have to be abolished simply because they are believed by some to have religious support. Hence the pro-life position is a legitimate public-policy option and does not violate the separation of Church and state.

II. PHILOSOPHICAL ARGUMENTS

More sophisticated pro-choicers have fine-tuned their position by pre- senting more detailed philosophical arguments. For instance, Mollenkott begins her article by pointing out the perils of being a woman in today's society. She cites the fact that even if a sexually active married woman

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uses the most effective contraceptives available, failure could occur and she could still get pregnant. She then asks: "How is a married woman able to plan schooling or commit herself to a career or vocation as long as her life is continually open to the disruption of unplanned pregnancies?" She concludes: "Unless, of course, she can fall back on an abortion when all else fails" (p. 269). I think it is reasonable to outline Mollenkott's argument (A) in the following way: (la) A woman's schooling and career are of maximal importance. (2a) An unwanted pregnancy would prevent (la). (3a) The only way to prevent an unwanted pregnancy after concep- tion is to have an abortion. (4a) Therefore abortion is justified.

(la) can be called into question. It does not seem obvious to me that anyone's schooling and career, whether it be a man's or a woman's, are of maximal importance. For example, if a mother (or a father, for that matter) murders her five-year-old son because he interferes with her ability to advance in her occupation, we would consider such an act morally reprehensible. I am not saying that the termination of a preg- nancy—that is, the killing of the unborn—is morally equivalent to mur- dering a child. Rather, I am merely pointing out that (la) is not obviously true. Therefore since (la) is incorrect (A) is not a sound argument.

In order to strengthen her argument Mollenkott could rewrite (A) in the following way (B): (lb) A woman's schooling and career are important relative to other moral goods (i.e. some moral goods are of greater and lesser value). (2b) A child is of greater value than a woman's schooling and career. (3b) An unborn human is not of greater value than a woman's schooling and career. (4b) An unwanted pregnancy can disrupt a woman's schooling and career. (5b) Therefore abortion is justified.

The pro-life advocate does not agree with (3b), for she believes that the unborn human is just as much a part of the human family as a child. Of course Mollenkott disputes this point (p. 291), to which we will return below. The point I am trying to make, however, is that (B) stands or falls on Mollenkott's ability to show the plausibility of (3b), which really is based on the assumed proposition (3bx): The unborn human is not a person. Hence the argument from a woman's schooling and career is superfluous without (3bx) being plausible.

This brings us to Mollenkott's defense of (3bi), her arguments against the personhood of the unborn. Let me quote her a t length (p. 291):

Kay Coles James of the National Right to Life Committee claimed that fetal personhood is a biological fact rather than a theological perception. But in all truthfulness, the most that biology can claim is that the fetus is genetically human, in the same way that a severed human hand or foot or other body part is human. The issue of personhood is one that must be addressed through religious reasoning. Hence, the Lutheran Church in America makes "a qualitative distinction" between the claims of the fetus and "the rights of a responsible person made in God's image who is in living relationships with God and other human beings." Except in the most materialistic of philosophies, human personhood has a great deal to do with feelings, awareness, and interactive experience.

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There are actually two arguments in the above quotation. The first goes something like this (C): (lc) Unborn humans are genetically human. (2c) Severed limbs and body parts are genetically human. (3c) Therefore genetic humanness cannot be a criterion of personhood.

The problem with this argument is that it shows a gross misunder- standing of the pro-life position and probably commits the informal fallacy of equivocation. (1) When a pro-life advocate argues for the unborn's personhood from its genetic code, he is not arguing that any- thing at all with a human genetic code is a person. Nobody defends such an absurdity. Rather, he is arguing that the unborn human is a living human organism in a certain stage of development. And we know this organism to be such an entity because it has, among other characteris- tics, a human genetic code. In other words, possessing a human genetic code is a necessary but not a sufficient condition for human personhood. (2) It seems that the phrase "genetically human" has a different meaning in (lc) than in (2c). In (le) a fetus in utero is genetically human in the sense that it is a living and developing organism that is part of the human family. On the other hand, a severed limb is obviously a dead part of a former or current living and developing organism and is only genetically human insofar as it possesses the identical genetic code of its owner. No severed limb ever developed into a basketball star, a pianist, or a philosopher, but every basketball star, pianist and philosopher was at one stage in her development an unborn human with a unique human genetic code. Therefore because (C) equivocates on the phrase "genetic code" it is logically fallacious.

Let us now turn to Mollenkott's second argument, which I believe is the cornerstone of her position. A more detailed presentation of a similar argument is presented by philosopher Mary Anne Warren.31 believe that the following outline of Mollenkott's argument, however, adequately repre- sents Warren's position also (D): (Id) A person can be defined as a living being with feelings, awareness, and interactive experience (I assume she means some sort of consciousness). (2d) A fetus does not possess the characteristics of a person in (Id). (3d) Therefore a fetus does not possess personhood.

This seems to be the pro-abortionist's strongest argument. Neverthe- less I believe that it has several flaws. (Id) can be questioned on both philosophical and theological grounds. Concerning the former, several points can be made.

(1) It does not seem to follow from the assumption that an unborn human is not a person that abortion is always morally justified. Jane English has pointed out that "non-persons do get some consideration in our moral code, though of course they do not have the same rights as persons have (and in general they do not have moral responsibilities), and though their interests may be overridden by the interests of persons.

3 M. A. Warren, "On the Moral and Legal Status of Abortion," in Biomedical Ethics (ed. T. A. Mappes and J. S. Zembatty; New York: McGraw-Hill, 1981) 417-423.

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Still, we cannot just treat them in any way at all."4 English goes on to write that we consider it morally wrong to torture beings that are non- persons, such as dogs or birds, although we do not say that these beings have the same rights as persons. And though she considers it problematic as to how we are to decide what one may or may not do to nonpersons, she nevertheless draws the conclusion that "if our moral rules allowed people to treat some person-like non-persons in ways we do not want people to be treated, this would undermine the system of sympathies and attitudes that makes the ethical system work."5 Based on this reasoning, English makes the important observation that "a fetus one week before birth is so much like a newborn baby in our psychological space that we cannot allow any cavalier treatment of the former while expecting full sympathy and nurturative support for the latter."6 She agrees that "an early horror story from New York about nurses who were expected to alternate between caring for six-week premature infants and disposing of viable 24-week aborted fetuses is just that—a horror story. These beings are so much alike that no one can be asked to draw a distinction and treat them so very differently."7

(2) One can question Mollenkott as to why one must accept a func- tional definition of personhood to exclude the unborn. It is not obvious that functional definitions always succeed. For example, when Larry Bird is kissing his wife does he cease to be a basketball player because he is not functioning as one? Of course not. He does not become a basketball player when he functions as a basketball player. Rather, he functions as a basketball player because he is a basketball player. Similarly when a person is asleep, unconscious or comatose he is not functioning as a person as defined in (Id), but nevertheless no reasonable person would say that this individual is not a person while in this state. Therefore since a person functions as a person because she is a person and is not a person because she functions as a person, defining personhood in terms of function seems inadequate.

Of course the pro-abortionist may want to argue that the analogy between sleeping/unconscious/comatose persons and the unborn breaks down because the former possess the capacity to function as persons while the latter only possess the potential to function as persons. Al- though the pro-abortionist makes an important point, he nevertheless begs the question as to the personhood of the unborn—that is, he assumes that a functional definition is correct, which is the very issue under question. For the pro-lifer could simply respond by pointing out that precisely because the unborn human has the capacity to have the capacity to function as a person, she should be regarded as an actual person at a particular stage of development whose life is significant and worth pro- tecting. In other words, the very essence of humanness that the unborn

4 J. English, "Abortion and the Concept of a Person," in Biomedical Ethics 429. 5 Ibid. 430. 6 Ibid. 7 Ibid.

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now possesses is the reason why in the near future this individual can fully function as a person (of course as the fetus matures its functional capacity increases).

In order to give a positive philosophical ground to the above notion, the following is offered. In a recent critique of James Rachels' position on euthanasia, philosopher J. P. Moreland discusses Rachels' distinction between biographical and biological life.8 This distinction roughly cor- responds to Mollenkott's distinction between person and human being. According to Moreland, Rachels argues that "the mere fact that some- thing has biological life . . . , whether human or non-human, is relatively unimportant." It is biographical life that is important. Quoting Rachels, Moreland writes that one's biographical life is " 'the sum of one's aspira- tions, decisions, activities, projects, and human relationships.'"9 For Mollenkott a person can be defined as a living being with feelings, awareness and interactive experience. Hence it seems reasonable to assert that Mollenkott would agree with Rachels that a person is a living being who possesses biographical life, and the unborn are therefore not persons.

In response to Rachels, Moreland argues that "his understanding of biographical life, far from rendering biological life morally insignificant, presupposes the importance of biological life."10 That is to say, an unborn human being develops into a functioning person precisely because of what it essentially is. Employing the Aristotelian/Thomistic notion of secondary substance (natural kind, essence), Moreland points out that "it is because an entity has an essence and falls within a natural kind that it can possess a unity of dispositions, capacities, parts and properties at a given time and can maintain identity through change." Moreover "it is the natural kind that determines what kinds of activities are appropriate and natural for that entity." n Moreland goes on to write:

Further, an organism qua essentially characterized particulars has second- order capacities to have first-order capacities that may or may not obtain (through some sort of lack). These second-order capacities are grounded in the nature of the organism. For example, a child may not have the first- order capacity to speak English due to a lack of education. But because the child has humanness it has the capacity to develop the capacity to speak English. The very idea of a defect presupposes these second-order capacities. Now the natural kind "human being" or "human person" (I do not distin- guish between these) is not to be understood as a mere biological concept. It is a metaphysical concept that grounds both biological functions and moral intuitions.... In sum, if we ask why biographical life is both possible and morally important, the answer will be that such a life is grounded in the kind of entity, a human person in this case, that typically can have that life.12

8 J. P. Moreland, "James Rachels and the Active Euthanasia Debate," JETS 31 (March 1988) 81-90.

9 Ibid. 85. 10 Ibid. 86. 11 Ibid. 12 Ibid. 87. See also R. Pentz, "Potentiality, Possibility, and Persons," APA Newsletter on

Philosophy and Medicine (November 1988) 38-39.

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Along the same lines, A. Chadwick Ray has made the observation that the view of human person as a natural kind rather than as an emergent property of a human organism is more consistent with our general moral intuitions. For "the recognition of the rights of the young is less depen­ dent on their actual, current capacities than on their species and po­ tential." For example, no one doubts that day-old human children have fewer actual capacities than day-old calves. Human infants, in terms of environmental awareness, mobility, and so forth are rather unimpressive in comparison to the calves, especially if one calculates their ages from conception. But this comparison does not persuade us in believing that the calves have greater intrinsic worth and an inherent right to life. For if human infants were sold to butchers (let us suppose for the high market value of their body parts) in the same way that farmers sell calves to humane butchers, we would find such a practice deeply disturbing. Yet if intrinsic worth is really contingent upon current capacities, we should have no problem with the selling of human infants to butchers. But Ray points out why we do find such a practice morally repugnant: "The wrongness would consist not merely in ignoring the interest that society might have in the children, but in violating the children's own rights. Yet if those rights are grounded in current capacities alone, the calves should enjoy at least the same moral status as the children, and probably higher status." What follows is that "the difference in status is plausibly ex­ plained . . . only with reference to the children's humanity, their natural kind." 1 3

Therefore since the functions of personhood (first-order capacities) are grounded in the essential nature of humanness (second-order capacities), it follows that the unborn are human persons of great worth and should be treated with the utmost in human dignity. No doubt much more can be said about the problem of what constitutes personhood,14 but what is important in this immediate discussion is that we have seen that a functional definition of personhood is riddled with serious problems and that the pro-life advocate has been given no compelling reason to dis­ pense with his belief that the unborn are human persons. In fact there are plausible arguments for the human personhood of the unborn (e.g. argu­ ments by Moreland and Ray).

Since Mollenkott is arguing that her position is consistent with Chris­ tian theism, (Id) can also be questioned on theological grounds. Although Mollenkott writes that the Bible does not speak about abortion, her claim is simply untrue if one recognizes that the Bible's statements on some other matters can be used to draw an inference consistent with a pro-life position. For instance the Bible teaches that individuals such as Jeremiah,

1 3 A. C. Ray, "Humanity, Personhood and Abortion," International Philosophical Quarterly 25(1985) 240-241.

14 See the fourteen articles in section Β ("Persons and Their Lives") of part 2 of Bioethics: Readings and Cases (ed. Β. A. Brody and H. T. Englehardt, Jr.; Englewood Cliffs: Prentice- Hall, 1987)132-184.

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David, Jesus and John the Baptist were referred to as persons prior to their births.15 Appealing to the fact that God could be speaking in terms of his foreknowledge, as some pro-choice advocates may, is both textually unwarranted and question-begging. Mollenkott makes the rather stupen- dous claim that "nowhere does the Bible prohibit abortion" (p. 291). In one sense she is correct: Just as the Bible does not forbid murdering people with submachine guns, the Bible does not forbid abortion. But since one can infer that murdering persons with submachine guns is wrong from the fact that the Bible forbids murdering in general, one can also infer that the Bible teaches that abortion is not justified from the fact that the Bible treats certain unborn beings as persons and forbids the murdering of persons in general. If one accepts Mollenkott's hermeneuti- cal principle that whatever the Bible does not specifically mention it does not forbid, one would be in the horrible position of sanctioning everything from slavery to nuclear warfare to computer vandalism.

III. THEOLOGICAL ARGUMENTS

Mollenkott repeats an argument she had presented at a national gathering of scholars.16 She basically argues that because God created us as free moral agents, to use public policy to make abortion illegal would be to rob the pregnant woman of the opportunity to be a responsible moral agent. Mollenkott's argument can be put in the following form (E): (le) God created human persons as free moral agents. (2e) Any public policy that limits free moral agency is against God's will. (3e) Public policy forbidding abortion would limit the free moral agency of the pregnant woman. (4e) Therefore forbidding abortion is against God's will.

The problem with this argument lies with (2e). It does not seem obvious that "any public policy that limits free moral agency is against God's will." For example, laws against drunk driving, murdering, smok- ing crack, robbery, and child molesting are all intended to limit free moral agency, yet it seems counter-intuitive—not to mention un-Biblical—to assert that God does not approve of these laws. And the reason why such laws are instituted is because the acts they are intended to limit often obstruct the free agency of other human persons (e.g. a person killed by a drunk driver is prevented from exercising his free agency). Hence it would seem consistent with Biblical faith to say that God probably approves of a public policy that seeks to maintain a just and orderly society by limiting some free moral agency (e.g. drunk driving, murdering, etc.), which in the long run increases free moral agency for a greater number

15 Jer 1:5; Luke 1:26-57; Ps 139:13, 15, 16. See especially M. J. Gorman, Abortion and the Early Church (Downers Grove: Inter-Varsity, 1982); H. T. Krimmel and M. J. Foley, "Abortion and Human Life: A Christian Perspective," in Simon Greenleaf Law Review 5 (1985-86) 5-21; J. W. Montgomery, "The Christian View of the Fetus," in Jurisprudence: A Book of Readings (ed. Montgomery; Strasbourg: International Scholarly Publishers, 1974); B. K. Waltke, "Reflec- tions From the Old Testament on Abortion," JETS 19 (1976) 5-13.

16 "Sanctity of Life" held at Eastern College, June 3-5,1987.

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(e.g. less people will be killed by drunk drivers and murderers, and hence there will be a greater number who will be able to act as free moral agents). In fact Mollenkott herself advocates public policy that limits the moral free agency of those who do not believe it is their moral obligation to use their tax dollars to help the poor pay for abortions. She believes that "if Christians truly care about justice for women" we will "work to assure the availability of legal, medically safe abortion services for those who need them—including the public funding without which the im- poverished women cannot exert their creative responsibility" (p. 293).

From our analysis of (E) it seems clear that only if the act of abortion does not limit the free agency of another would a …