Philosophical Abortion Essay

A philosophy of rights approach
by Rebecca Kiessling
Family Law Attorney, Conceived in Rape, Abortion Survivor
International Pro-Life Speaker

WARNING! Don’t plagiarize this work. My essay has been ranked as the #1 philosophical abortion essay in many search engines for a long time. Your professor will likely be aware that it’s not your original work. Permission is granted to reproduce this essay in online and email newsletters, or portions of this essay for other essays or articles, as long as you provide proper attribution.
Please just e-mail me to let me know if you’d like to reprint my essay or to make it available on another website, with proper credit. It’s just wrong to plagiarize — as in universally wrong for everyone. As you can see from my own story, this is not just a philosophical exercise for me. But some will say that my story and the multitude of others’ stories that I have posted on my site are merely anecdotal. So here are the philosophical arguments to back up the premise that we deserved to be protected. I’ve put a heading on each paragraph in order to make it easier for the reader to go back and find certain points. For those who are willing to be challenged — enjoy this essay!

THE RIGHT OF THE UNBORN CHILD NOT TO BE UNJUSTLY KILLED — a philosophy of rights approach

This essay focuses on the controversy between the claimed right of elective abortion and the asserted right of an unborn child not to be unjustly killed. An analysis is done of the writings of several of the advocates of the right of elective abortion, every one of whom has a unique position which he or she defends. For each writer, I examine his or her definition of a “person” or “human being,” depending on which one the author deems to be morally relevant to this topic. I then study and evaluate the grounds on which the author relies for determining whether an unborn child is capable of having rights, whether an unborn child has a right not to be unjustly killed, and in what types of instances it may be possible for an unborn child to be justly killed. During the review of these authors’ contentions, I formulate and detail my own arguments. After surveying all of the writers, I attempt to decipher what is meant by “just” and I argue for what it should mean. Finally, I summarize the bases for my conclusions that an unborn child is a human being which has the right not to be unjustly killed, and a pre-birth killing is only just when it is in defense of the mother’s life.

This essay, however, does not include a discussion of any religious bases because it is my experience that some individuals will refuse to consider a logical reasoning approach if they perceive the deliverer of the message to have different religious foundations from them. This writing is intended to be relevant for believers and atheists alike. Thus, everyone can be held accountable for his or her (hopefully) educated opinions, without being able to readily discredit a source for lack of personal applicability.

THE SYLLOGISM

The relevance of defining the terms “personhood” or “human life” has to do with the argument that an unborn child must be a person or a human being in

order to have the fundamental right not to be unjustly killed. The syllogism (logical argument) is as follows:

First premise: Every person has the right not to be unjustly killed.

Second premise: Every unborn child is a person.

Conclusion: Every unborn child has the right not to be unjustly killed.

Many of the advocates of a right to elective abortion spend a great deal of time trying to prove that the second premise is false. As will be seen, there are those who deny the truth of the first premise by excluding certain groups of individuals who may be seen as comparable to unborn children — comatose individuals, for example. Many of the supporters of the right of unborn children not to be unjustly killed spend their time verifying the second premise.

JUDITH JARVIS THOMPSON

The slippery slope

Judith Jarvis Thompson, in her renowned essay “A Defense of Abortion,” begins by advising against the use of what she labels the “slippery slope argument” which dictates: from the moment of conception the unborn child is a human being and a person because human development is continuous and line drawing would be arbitrary. [29] She feels it is a slippery slope argument because she fears some may say the line should be drawn before conception and also because she believes that even after conception, it is questionable whether the unborn child is a human being.

Arbitrary decision-making

However, if Thompson and others refuse to draw the line beginning at conception, then they might not draw it until birth, or even some time after the birth of the child. The danger lies not in reasoning, but in irrational and arbitrary decision-making simply out of a desire for convenience. Where would Thompson and others be willing to draw the line? Human development is always continuous. When would it not be continuous? Without line drawing, one may arbitrarily be taking a life, leaving no one safe from a capricious killing. In other words, not to decide is to decide.

Acorns

Thompson compares acorns to oak trees, unborn children to adults, and concludes: “it does not follow that” the immature forms are to be considered the same as the more mature forms. Certainly, it is true that the immature forms are not identical to the more mature forms, simply because acorns and fetuses are indeed immature forms while oak trees and adults are indeed mature forms, thus making them “different.” An infant is not the same as an octogenarian, but the fact that they are “different” has nothing to do with whether either of them does or does not have a right not to be unjustly killed. Thompson concedes that “we shall probably have to agree that the fetus has already become a human person well before birth,” but she denies the fetus is a person from the moment of conception. [29] Nevertheless, in formulating her argument in defense of abortion, Thompson grants the premise that a person is formed at conception, in an effort to focus on other issues which she deems to be more crucial.

The famous unconscious violinist

Thompson utilizes a bizarre hypothetical situation to suggest that a right to decide what to do with one’s body outweighs a “right to life.” [30] You are asked to imagine yourself waking up in a hospital bed and finding a “famous unconscious violinist” hooked up into your back by a plug because his kidneys are failing and you are the only person in the world whose kidneys match his. You are told that if you unplug him, he will die. He needs you for only nine months, after which, he can safely be unplugged.

Outrageous

Attempting to draw an analogy in order that she may bolster her argument for abortion, Thompson says “I imagine you would regard this as outrageous.” Well, of course it is outrageous — the hypothetical is outrageous. If someone really told any of us that this happened to him or her, the universal reaction would surely not be one of believability. Pregnancy, on the other hand, is believable and it is far from being outrageous. After all, it is the means by which we have all arrived here, and the essence of reproduction.

The pouch

If Thompson really wanted to draw a fair and accurate analogy to a mother/unborn child scenario, the violinist would be the size of the unborn child and tucked away — possibly in a pouch. Given an imaginary scenario which is indeed comparable to that of a normal pregnancy, I would hold that it is far from outrageous to require the continuation of life support for up to nine months or so — whether the recipient is a famous violinist or a mediocre air-guitarist.

Psychological manipulation

Thompson’s creation of an “unconscious famous violinist” who suffers from kidney failure was surely calculated to have a certain manipulative/psychological effect on her readers. Thompson is likely to want her readers to believe the violinist is: (1) a man (to feminist readers, this is an automatic negative); (2) full-grown (this gives the visual effect of a huge burden); (3) fairly old (for younger and discriminating generations he may elicit less sympathy, with possible notions that he has already had enough years to enjoy his life); (4) already dying because his kidneys are failing (some may conclude that he must not have too many years ahead of him to live and in some readers’ minds, unplugging him may be more akin to euthanasia); (5) wealthy and a world traveler because he is famous (and so is likely to have had a “better life” with more opportunities than most of us ever will); and (6) stuffy, boring, and pompous. Therefore (Thompson would like for us to conclude), his life could not be worth more than our desire to be rid of him. Fortunately, not all of her readers allow themselves to be misdirected by the prejudices and emotions of the intolerant and selfish elements of our society; rather, logical reasoning with consistency is to be the guide for analysis and judgment.

Rape

In Thompson’s violinist hypothetical, the kidney donor is not voluntary — he or she was kidnapped. Thus, the author has made her illustration analogous to a rape-conception pregnancy. In addressing our issue in the confines of pregnancy through rape, I agree with Thompson when she states: “Surely the question of whether you have a right to life at all, or how much of it you have, shouldn’t turn on the question of whether or not you are the product of a rape.” [31] This statement is true for a couple of reasons. First of all, a retaliatory strike, whether in self-defense or as a punishment, must be against a victimizer. In Thompson’s outlandish sketch, the kidney kidnapper is the victimizer — not the violinist, and in a sexual assault, the rapist is the victimizer — not the unborn child. The unborn child did not cause the harm, which was the rape and not the pregnancy. Any attempts to declare the right to life of the blameless unborn child as suspended because of the rape are tragically misdirected. Go punish the guilty rapist, but leave the innocent unborn child alone. Additionally, in many states, while the rapist’s parental rights will be terminated, child support may be collected from him by the state for the support of the child.

Qualifying Characteristics

Secondly, in comparing an unborn child of a non-rape-conception to an unborn child of a rape-conception, the two unborn children have done nothing different and have no differing characteristics from one-another to warrant the false conclusion that one’s right to life is greater than the other’s. This is abundantly clear when one compares a child who was conceived out of a rape to a child who was not, or even adults for that matter. Their basic human characteristics are the same, and the right to life, or not to be unjustly killed, remains equal.

The nine year “miracle”

In a sympathetic appeal for an exception to be made where a pregnant mother must spend the full nine months in bed, Thompson argues that the mother’s interest in avoiding the pregnancy should outweigh an unborn child’s right to life. She suggests a consideration of the possibility that “miraculously enough, the pregnancy went on for nine years, or even the rest of the mother’s life.” [31] Perhaps this would be a pleasant “miracle” to Thompson, just so she could attempt to support her theory that a continued pregnancy is an outrageous burden to impose on a woman; however, we are not dealing with nine-year pregnancies, and it is inappropriate when balancing interests and rights to give weight to total impossibilities. In other words, there is no possibility for Thompson’s readers to consider, no matter how much Thompson might like for there to be. This balancing of interests and rights goes to the issue of what is “just” and is later addressed in depth.

Life vs. Life + Choice

The author next discusses the theories and implications surrounding the issue of whether abortion is permissible to save a mother’s life. Again, I agree with Thompson when she says that the mother and the unborn child “(p)resumably . . . have an equal right to life.” [31] She sees this as presenting a dilemma and rhetorically asks whether we should “flip a coin” or “add to the mother’s right to life her right to decide what happens in and to her body . . . (with) the sum of her rights now outweighing the fetus’ right to life?” [31] Flipping a coin is certainly not a morally sound solution, but the second suggestion is absolutely the appropriate resolution. Except, no one is “adding” on an extra right. The mother’s right not to be killed, as well as her (qualified) right of autonomy (deciding what can happen in and to her own body) are already existent, but they are not absolute because the potential effect on others’ rights must be considered as well. As will be discussed in detail below, one cannot legally and morally kill someone else in order to prevent that person from stepping on one’s toe.

The “extreme view”

According to Thompson, the “extreme view” (not permitting abortion to save the mother’s life) maintains that “directly killing an innocent person is always and absolutely impermissible.”

[32] Now using the violinist example in a sensible manner, Thompson demonstrates the truth that one should not consider it to be murder for a woman to abort her unborn child when it is absolutely medically necessary to save her own life, and that it is untenable to require the woman to passively refrain from any defense and await her death. Clearly, a killing which takes place in order to defend one’s own life as against a deadly aggressor cannot be considered to be murder. The common law definition of murder is “the killing of a human being by another human being with malice aforethought.” A woman who wishes to preserve her own life does not necessarily have malice for the unborn child. Further, such a killing is not even an “unjust” killing so long as the killing was not performed in such a way to merely secure the death of the unborn child. From a religious viewpoint, however, one may believe that we are called to lay down our own lives in order to save others’, but such a discussion is outside the scope of this essay. As a society, we have traditionally recognized that the preservation of one’s own life is a basic human instinct. When we choose not to punish people for killing in self-defense in cases when they had no other recourse but to kill or be killed, we are not condoning what they did or saying we believe it was right thing to do. Instead, we merely recognize that they made a life or death decision and we do not hold them criminally liable.

The innocent aggressor

Thompson alludes to the right of self-defense, but she fails to refer to other areas of the law and the philosophy of rights in which the right of self-defense as against an innocent aggressor is supported. For example, where an innocent child is pointing a loaded gun at another innocent person, and the child believes the gun to be a toy and is about to shoot that person, it is not considered to be unjust under the current state of the law for the innocent potential victim to kill the child. The child is the innocent aggressor and is not “unjustly” killed in such a scenario. The ramifications of choosing not to label such a killing as being “unjust” simply means that society will not punish this person who acted in self-defense, because of our understanding that survival is one of our most basic human instincts. Justice would not be served if the person were punished. However, this right of self-defense is limited so that it may only be invoked against aggressors. As Thompson points out, “(i)f someone threatens you with death unless you torture someone else to death, . . . you have not the right, even to save your life, to do so.” [33] This is because, in such a scenario, the innocent person whom you are directed to kill is not an aggressor, and such a killing would therefore be unjust.

Third-party defense

Another concern of Thompson’s is whether a third party may intervene in a conflicting-lives situation by selecting an individual to help. In the abortion realm, the third party would most likely be a doctor. Again, the question of which individual is the aggressor, whether innocent or not, is crucial to the balance and the just determination of the outcome. Clearly, a doctor may be permitted to defend the life of an innocent mother. Third-party defenses are nothing new in the law and the philosophy of rights. Thompson supports the right of a doctor to intervene when a woman’s life is at stake by suggesting the mother owns her body, and that third parties are allowed to recognize and respect ownership. However, Thompson also recognizes “that one has a right to refuse to lay hands on people, even where it would be just and fair to do so . . .” [34] Therefore, if a doctor does not wish to assist in aborting an unborn child when the pregnancy is innocently placing the mother’s life in jeopardy, the doctor must not be punished for choosing not to personally intervene — even if it is medical necessary in order to save the mother’s life.

Qualified autonomy

Thompson says “the arguments against abortion we are looking at do grant that the woman has a right to decide what happens in and to her body.” [34] I also concede that there is a right of autonomy over one’s body, but such a right is not absolute. The right to decide what happens in and to one’s own body is qualified when it affects what happens in and to others’ bodies. For example, the right we all have to defend ourselves is limited by the law. Our society utilizes the law to impose what we have collectively deemed to be just under a cultivated philosophy of rights approach — what some legal scholars call “natural law.” These rights and theories have been developed and refined over many centuries and through many great minds in order to achieve the basic foundations which we now have. A discussion of natural law concepts is much too broad for purposes of this essay.

Self-defense

The right of self-defense is derived from the right of a person to decide what can happen in and to his or her own body. However, the right of self-defense is confined to reasonably necessary measures to prevent a harm, and is limited to the use of a similar amount of force as an aggressor is using. The use of deadly force is morally and legally impermissible when someone is not threatened with death or serious bodily injury. To use lethal force would be unjust because when balanced, the right to life, as well as the right to be free from serious bodily injury, are more valuable than a right to be free from minor bodily injury. For example, a human life is worth more than an interest in being free from a poke in the belly. Accordingly, a pregnant woman may not abort when there is no danger to her life or threat of great bodily injury. Deadly force is impermissible merely to prevent an attack which is not life-threatening, whether the attack is innocent or intentional, and even when it may very well be certain to cause pain, tremendous inconvenience, and even monetary difficulties. Judith Jarvis Thompson, however, strikes the balance differently and disagrees. She feels very strongly about owning her own body. (The thought of accidentally bumping into her alarms me.)

The famous actor’s hand

Instead of addressing the thesis which is the topic of this essay — that all persons, including unborn children, have a right “not to be unjustly killed” — Thompson first focuses on the “pro-life” position that all persons, including unborn children, have a right “to life.” Although, Thompson does later emphasize that “the right to life consists not in the right not to be killed, but rather in the right not to be killed unjustly.” [36] According to Thompson, the pro-life view “includes having a right to be given at least the bare minimum one needs for continued life,” and she counters this notion by illustrating how one does not possess the right to have some famous actor place his hand on one’s forehead, despite the hypothetical fiction that one will surely die without the magic hand. (Although such a thing obviously does not exist, for the sake of argument it is addressed.) Essentially, Thompson claims there is no right to have someone save your life, even when there is no risk to the potential rescuer’s own life, but only some possible degree of inconvenience for the desired rescuer.

Act vs. Omission

In analyzing her assertion, first consider the difference between an act and an omission. An act could cause a death, whereas an omission could allow it to happen. An omission would involve simply refraining from saving someone’s life. One can certainly distinguish abortion from the famous actor hypothetical by noting that abortion involves an act, while Thompson’s famous actor’s scenario involves an omission. The omission does not constitute a “killing” per se. The hypothetical can be properly analogized by supposing that the famous actor already had his hand on the person’s forehead, then removed it knowing this would cause the person’s death. If the person then dies, this would then be a “killing.” The only issue to be settled is whether it is unjust, and I am reserving the discussion of exactly what kind of factors go into the determination of whether a killing is or is not unjust for later in this essay.

The right “to life”

Now explore whether there is ever a positive right “to life” and not simply a right “not to be unjustly killed.” Certainly, there is no unqualified right to life, because the law provides for instances in which a court or jury may determine that an aggressor has been justly killed — such as in a self-defense scenario when an aggressor, in attempting to kill someone, is killed by the innocent defender. Thus, the key question is, can there ever be a right to have someone save your life, along with a corresponding obligation that a potential rescuer do so? Is Thompson wrong to suggest that there can never be such a right or duty?

The snow storm

I assert there are situations in which such a right and a duty exist. The morally relevant factors which go into the consideration as to whether our laws should hold someone accountable for such a duty include: risk, convenience, proximity, and unique ability. Suppose a man enters a friend’s home during a snow storm and becomes trapped in the home with someone else’s small child. The man does not happen to know the small child, and the small child was already in the home. They are the only two individuals present when snowbound. The kitchen cupboards are stocked with food, but this small child is unable to reach the food or to open any jars in the refrigerator, etc.. Out of an interest in having total leisure for himself, the man does not wish to assist the child in any way.

If the man refrains from supplying the child with the food, and the child dies, the man has not acted in such a way which caused the death of the child, but merely omitted acting, thereby allowing the death. Therefore, definitionally, he has not, per se, “killed” the child, while it is true that, but for the omission of this self-serving man, the child would not have died.

Unjustly deprived

However, the result of the omission in the snow storm scenario certainly seems unjust. For this reason, I argue that the child was unjustly deprived of a right “to life” in this case, despite the fact that this man was not voluntarily placed in the situation (just as a woman who is pregnant from a rape.) There was no risk of harm to the man, it would not have been too inconvenient for him to have acted — even if he had been snowbound for nine months, he was in proximity to the child, and he had a unique ability because he was the only one who could have saved the child’s life. But-for his omission, the child would not have died, and he was proximate enough that we may say he did cause the child’s death.

Plausibility

Unlike Thompson and others’ hypotheticals, this snow storm scenario is totally plausible — there is no futuristic technology requirement or suggestion of some impossible miracle to occur in order for the fact pattern to be conceivable. This is an important feature when considering what seems right and what seems wrong in this world because we are, indeed, dealing with reality in this world. One may further apply the example above to the case of an infant who actually needs to be physically fed and not simply supplied with food. Also, the facts can be changed so that the food had actually been purchased by the man. The outcome remains the same if the child is neglected — there is clearly a moral duty to act which must be legally recognized, and, likewise, what I now refer to as “a right not to be unjustly deprived of one’s life.”

Safe harbor

In tort (personal injury) law, we have the long-standing “necessity doctrine.” This doctrine allows, for example, a boat in a storm to dock in someone else’s “safe harbor.” The right of the individuals on the boat need not be granted or bestowed by the dock owner — it exists independently, regardless of whether or not a sailor in peril has permission to be in the private harbor. The reasoning here makes sense: the lives of those on board are valued more than the right of the dock owner to have his property free from intrusion. That right, along with any inconvenience the dock owner suffers (even to the extent that the private dock is thereby destroyed) is subsidiary to the right to life at stake here. This remains true even if those on board the boat were in such a predicament because they had themselves been incredibly irresponsible in ending up out on the water in a treacherous storm in the first place. Likewise, an unborn child cannot ever be found to have been irresponsible in any capacity for ending up in such a vulnerable position and should, therefore, be granted at least the same consideration and should be afforded his or her right to life.

Invitation to life

Thompson delays on the issue of whether an unborn child has a right to life because, she says, a woman cannot really ever be said to have “invited” an unborn child to use her body for food and shelter. However, as we have seen above, an invitation is not necessary for there to be a right not to be unjustly deprived of one’s life. In other words, the right exists — it is not merely bestowed by the one with the duty or the ability to be adversely affected by the right. For example, you do not give others the right not to be physically harmed by you, and you do not invite them to exercise that right. The right to be free from unjust bodily injury and the right to self-defense already exist. Therefore, in the abortion debate, any related issues of consent such as applied in the case of pregnancy due to rape are irrelevant. Whether it can be said that there is a lack of consent or a lack of an invitation from the pregnant woman, the right of the unborn child to be free from bodily injury is already there and continues to exist. The general right to be free from bodily injury is based upon many philosophical and moral rights theories, including utilitarianism and the like, which have been developed over several millenia. An in-depth discussion of these theories is much too broad for this essay, and hopefully, most people will understand the obvious purposes and needs for such a right.

Innocent and necessary

It follows then, that Thompson is correct when she says “it would be absurd to say” that a person who opens a window in his or her house has constructively invited a burglar in and granted him the right to the use of the house. [38] This is true because rights and invitations are independent and wholly unrelated. As we have seen, if you leave your harbor open, an innocent boat — out of necessity — may still permissibly dock in your “safe harbor” under the “necessity doctrine.” Again, this is not because the boat was constructively invited into your harbor, but merely because it needs to and is able to dock there. The same reasoning readily applies to an unplanned pregnancy. The unborn child has a right not to be unjustly killed, not because the unborn child was necessarily constructively invited into the mother’s womb, but merely because the unborn child needs to and is able to be harbored there.

Duty without assumption

The assumption of a “special responsibility” is likewise not necessary in order to have a duty owed to someone else or for the other person to have a corresponding right. Thompson asserts: “If a set of parents do not try to prevent pregnancy, do not obtain an abortion, and then at the time of birth of the child do not put it out for adoption, but rather take it home with them, then they have assumed responsibility for it, they have given it rights, and they cannot now withdraw support from it at the cost of its life because they now find it difficult to go on providing for it.” [43] As my “snow storm” hypothetical illustrates, the assumption of responsibility is not a relevant factor for maintaining that a right not to be unjustly deprived of life exists. Also, the couple may still have a means of getting out of their obligation to support the child, but their duty to the child does not end until they have appropriately transferred the care to someone else — through adoption, guardianship, or possible foster care. The only sense in which assumption of responsibility is pertinent is that one cannot just leave a child in a vulnerable position in which that person has created, and where the child is sure to suffer and/or die. The right of a small child to be given any form of necessary life-sustaining support exists as against anyone who is in the immediate position to provide such support, and not just the parent or parents.

Ease and proximity

Thompson goes on to explain that she is “arguing only that having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person’s body — even if one needs it for life itself.” [36] Again, there is a strong morally relevant difference between an act and an omission, and proximity is a morally pertinent factor when relating to omissions. Contrarily, Thompson claims it is “‘morally unacceptable’ to make the question of whether or not a man has a right to a thing turn on how easy it is to provide him with it. . . . (and that it is) rather a shocking idea that anyone’s rights should fade away and disappear as it gets harder and harder to accord them to him.” [39-40] I disagree. The issue of ease and burdens properly goes to the determination of what qualifies as “just” under various circumstances. For example, under our laws, if someone is confronted with lethal force (outside of his or her home) and has the opportunity to safely retreat, that person’s right to use deadly force in self-defense disappears because of the ease with which that person could escape unharmed from his or her attacker. This is deemed to be just because our society deems life to be more valued than mere retaliation or revenge.

Tipping the scales

Whenever rights conflict with other rights, we must always balance them against one another and decide what is just. It is just for a pregnant woman to prematurely terminate her pregnancy to save her life because in such a scenario, it is much harder for her to facilitate her unborn child’s right to life and it is much harder for her to fulfill her own duty to her unborn child. Although the inherent nature of the pregnancy is such that it results in immediate proximity and a unique ability of the woman to provide support, the burden of losing her own life is also considered and weighed against the benefit of the life of her unborn child. Here, the burden tips the scales. Justice is served when she is permitted to exercise her right to defend her life. It would simply be unjust to punish the woman for following a basic human instinct to preserve one’s own life — as long she uses the least drastic means to terminate her pregnancy, which is discussed below.

Morally indecent

Contrary to the views of many of the extreme liberal defenders of abortion, Thompson does admit that “(w)e surely must all grant that there may be cases in which it would be morally indecent to detach a person from your body at the cost of his life,” but she still does not acknowledge a moral duty. [38] She says that in the cases of an hour-long “ordeal” with a violinist or an hour-long pregnancy, the person ought to wait it out, but should not be required to do so. Thompson still bases her argument on the fact that there was no “invitation” to the use of the violinist’s body or a mother’s body who was impregnated from a rape.

The box of chocolates

Thompson warns against the use of the word “ought” as implying a necessary “duty.” Attempting to demonstrate how “ought” and “duty” are not dependant upon one another, she deliberates a case where one brother is given a box of chocolates. He refuses to share the chocolates, and eats them while the other brother watches with envy. She says “it just does not follow from the truth (that he ought to share) that the (other) brother has any right to any of the chocolates.” [39] Thompson’s statement is certainly true, but an application of this narrow example to the discussion of abortion rights fails miserably. In the chocolate scenario, the right to which Thompson alludes as being improper to claim must be a fictitious right not to experience envy. The asserted right not to experience envy is then balanced against the right to the enjoyment of one’s own property. It simply does not follow from her chocolate illustration that it must, therefore, also be an improper usage of the word “right” to say that “an unborn child has a right not to be unjustly killed” merely because of the fact that one could also say that a woman “ought” not to abort. It is clear that Thompson has chosen to exercise a manipulative jump in her logic.

Chocolates and pregnancies

Thompson further compares a boy who refuses to share his chocolates to a woman who has an abortion with only an hour of her pregnancy left. She says both are “self-centered and callous, indecent in fact, but not unjust.” [40] Her purported comparison is so much more of a contrast, that Thompson makes clear her total lack of due consideration for the right not to be unjustly killed. A right not to be unjustly deprived of one’s life should not be likened to a fictitious and ridiculous right not to be unjustly deprived of someone else’s chocolate. The comparison is illogical and fails because there are no similarities to be drawn. It is unbelievable that someone could think not sharing a box of chocolates is in anyway remotely similar to the egregious abortion of an unborn child one hour before he or she is to be born! This type of drastically warped thought process on Thompson’s part simply goes to her lack of credibility as an open-minded philosopher of rights. She is far from main-stream, and her followers should be capable of understanding the ramifications and the extent of what Thompson really tells us about her way of thinking and her foundations.

Trumping a life

In wrapping up her argument in defense of elective abortion, Thompson insists “nobody is morally required to make large sacrifices, of health, of all other interests and concerns, of all other duties and commitments, for nine . . . months, in order to keep another person alive.” [40] Thompson is wrong. It would simply be morally unjust to permit lesser interests to trump a right to life. Mere inconvenience or trivial desires are not enough to outweigh a life or at least an undeniable future life.

Securing a death

Thompson does say, however, that she is “not arguing for the right to secure the death of the unborn child.” [43] In other words, if the child survives the abortion, “should it turn out to be possible to detach the child alive,” and the mother does not want to keep the child herself, nor does she want anyone else to have it through adoption, then she is not entitled to kill the child. For Thompson then, a newborn does have a right not to be unjustly killed.

The least drastic means

However, Thompson does not address the issue of whether a woman seeking an abortion has the duty to use the “least drastic means” in terms of selecting an abortion procedure. (I will assume here for my own purposes that the abortion would be in order to save the pregnant mother’s own life.) By “least drastic means,” that is to say, if it is possible to remove the viable unborn child through a Cesarean Section or by inducing labor in such a way and at such a time that the unborn child will surely survive afterwards, does the woman have a duty to have the abortion through this type of procedure? This would be as opposed to abortion procedures such as the following: the unborn child’s heart is shocked into stopping, then delivered dead by inducing labor; partial-birth abortion; the child is burned by saline, then delivered dead; the child is mutilated by dilation and curettage (“D & C”) or dilation and evacuation (“D & E”), — all resulting in the certain death of the unborn child. Surely a woman must have this duty to use the least drastic means if, as Thompson says, there is no “right to secure the death of the unborn child.” Intuitions (based on the balancing of interests) make it clear that it would also be unjust to allow the woman to have the unborn child mutilated when the child would otherwise surely live.

Premature termination of a pregnancy

The normal delivery of a healthy baby is the termination of a pregnancy, and inducing labor or a cesarean section is the premature termination of a pregnancy. One must ask what is the goal really? Is it to prematurely terminate the pregnancy to save the life of the mother, or is it to secure the death of the unborn child and to avoid liability for the abortionist? With such analysis, the “true colors” of the abortion advocates becomes clear, and “pro-abortion” is the accurate description. If a woman needs an abortion to save her own life, there philosophically must be a duty not to unjustly kill the unborn child, and the unborn child has a corresponding right. If there were no way to remove the unborn child that would preserve his or her life, then and only then would the killing not be unjust because the mother has the right to defend her own life. But if she could remove the unborn child from her womb while saving her own life and while saving the unborn child’s life, and then does not, then the killing would be unjust, because she is merely trying to secure the death of the unborn child. This just further illustrates that unborn children do have rights, even before they emerge out of the womb as babies.

MICHAEL TOOLEY

X is a person

Michael Tooley’s essay entitled “Abortion and Infanticide” averts the issue of whether an unborn child really fits into the definition of a person by lunging into and focusing on the dispute as to whether an unborn child has a “right to life.” He tell his readers: “the sentence ‘X is a person’ will be synonymous with the sentence ‘X has a (serious) moral right to life.’” [47] Tooley disapproves of using the terms “person” and “human being” interchangeably because, he claims, it confuses the issues. He concedes a human unborn child is an “organism” which is a member of the species “homo sapiens.” [48] However, Tooley claims that “(d)ifference in species is not a morally relevant difference” when he compares the killing of an unborn human to an unborn kitten, and further insists a “morally significant property must be identified” which is different between humans and animals. [53]

Apes vs. unborn children

Tooley compares the psychological properties of an adult ape to a human unborn child, and he concludes that the ape is worthier of rights. Tooley maintains that the physiological differences of a human unborn child compared to any other animal fetus are not “morally significant by virtue of their causal consequences.” [55] By “causal consequences,” Tooley means that a human unborn child potentially becomes an adult human, and an ape fetus potentially becomes an adult ape. He says these causal consequences lead to later psychological differences which are morally relevant. Tooley further claims “the conservative position on abortion is acceptable if and only if the potentiality principle is acceptable.” He insists that it is unacceptable because of his own so-called “self-consciousness requirement,” in conjunction with what I refer to as his “psychologically-differential-property requirement.”

Concept of a self

Tooley’s self-consciousness requirement is enunciated as follows: “An organism possesses a serious right to life only if it possesses the concept of a self as a continuing subject of experiences and other mental states, and believes that it is itself such a continuing entity.” [49] Tooley believes this “cutoff point . . . is at least a morally safe one (and) any error it involves is on the side of caution.” [52] But, presumably, the morally proper “side of caution” for Tooley is the opposite side from an innocent life which may be unjustly killed! Risking error on the side where one concedes there may possibly be a life is surely immoral and, therefore, Tooley errs.

If A desires X

Tooley says “‘A has a right to X’ is roughly synonymous with ‘If A desires X, then others are under a prima facie obligation to refrain from actions that would deprive him of it.’” “Desire” is meant as “something more than behavioral dispositions,” and so, machines would not qualify as being capable of having rights under Tooley’s above criterion. Therefore, argues Tooley, “‘A has a right to X’ is roughly synonymous with ‘A is the sort of thing that is a subject of experiences and other mental states, A is capable of desiring X, and if A does desire X, then others are under a prima facie obligation to refrain from actions that would deprive him of it.’” [50]

Reprogrammed brains

Tooley suggests to his readers that if, by some future technology, an adult human’s brain were to be completely reprogrammed, then the resulting consequences would be that “an individual is destroyed, (and) an adult human’s right to life is violated, even though no biological organism had been killed.”

Therefore, he says, “the expression ‘right to life’ is misleading” because the actual concern “is not just the continued existence of a biological organism, but the right of a subject of experiences and other mental states to continue to exist.” Granted, some right has been violated in Tooley’s futuristic hypothetical, but such right is not the right to life. Of course, a violation of your right to retain your own memory and brain functions (a right not to have your brain reprogrammed, which probably stems from a right not to be unjustly caused grievous bodily injury) may very well be equally as egregious as a violation of a right not to be unjustly killed; however, Mr. Tooley is manipulating the concern here in order to further his own purposes. Keeping rights separate and giving them there own bases is crucial.

Convenient exceptions

As part of Tooley’s formulation, he says “the desires one can have are limited by the concepts one possesses” and an entity must believe that it is now “a subject of experiences and other mental states” in order to be afforded rights. [51] Nevertheless, he does say three types of situations exist for “exceptions to the claim that if a person doesn’t desire something, one cannot violate his right to it.”

Temporary depression

The first exception which Tooley makes is when “an individual’s desires reflect a state of emotional disturbance” and a psychiatrist has diagnosed it as temporary depression, so that if the individual is suicidal, the exception would dictate that his or her right to life is still capable of being violated. Tooley maintains that if this doctor were to facilitate the suicide, then he or she would have violated the individual’s right to life. By the same token, perhaps a pregnant woman with an unborn child whom she has not planned and does not want to parent herself, who is likely to be in a state of emotional disturbance, should be afforded the same caution, as well as the unborn child within her. After all, the pregnant mother’s desires may very well reflect a temporary state of emotional disturbance.

Temporarily unconscious

The second exception is made by Tooley when “a previously conscious individual is temporarily unconscious” whether sleeping, drugged, or temporarily comatose — which notably fails to include a significantly developmentally disabled person who may never have had any kind of understanding of his or her own existence. An unborn child is comparable to any temporarily unconscious individual, but has the most in common with the temporarily comatose individual, because an unborn child is likely to have similar brain function, and it is only temporarily an unborn child; therefore, unborn children should fall into this exception, and should have their basic human rights recognized, despite the fact that unborn children may or may not be able to desire to continue their existence or to have “experiences and other mental states.” Actually, ultrasounds performed of unborn children during abortions demonstrate that these unborn children resist, struggle, and “silently scream” out in pain, which is evidence that unborn children are capable of desiring their existence. Nevertheless, the same justifications for granting the exception for the temporarily unconscious individuals apply for unborn children.

Conditioning/indoctrination

The third circumstance for Tooley’s exceptions is when “an individual’s desires have been distorted by conditioning or by indoctrination” such as the “inculcation of irrational beliefs or by direct conditioning.” However, every member of society certainly has had his or her desires formed by conditioning or by indoctrination, otherwise known as education, guidance, training, experience, and positive reinforcement. There is nothing distorting about individuals’ natural life experiences. If someone is easily convinced by others, it is only because he or she chooses or allows themselves to be. A person “doesn’t know any better” until someone tells him or her “better,” and the person chooses whether or not to adopt those beliefs. People change their minds throughout their lives. Furthermore, I suppose “irrational” is to be solely defined by Tooley here. Otherwise, a woman with an unwanted pregnancy who desires an abortion can be said to have such a desire based on the “inculcation of irrational beliefs” of pro-abortionists, and she ought to be placed into Tooley’s exception as well. After all, she has been “conditioned to desire the absence of” her right to pregnancy and to bear children.

Custom-tailored

Tooley modifies his rights analysis thus: “an individual’s right to X can be violated not only when he desires X, but also when he would now desire X were it not for one of the following: (i) he is in an emotionally unbalanced state; (ii) he is temporarily unconscious; (iii) he has been conditioned to desire the absence of X.” He says, one must still “possess the concepts involved in the desire.” It is clear that Tooley means to target unborn children by causing them to be excluded in his own concept-of-the-desire requirement, but this would surely exclude a temporarily comatose individual as well. Therefore, Tooley is inconsistent and is found to contradict himself for the sake of his own theories and goals. As opposed to formulating an argument around a universal truth, Tooley is obviously attempting to custom-tailor his argument and its exceptions in his desire that unborn children would be excluded from any right to life.

The injected cat

Tooley further argues against the “potentiality principle,” which was earlier discussed, through the use of a hypothetical in which his readers are asked to suppose that a future, highly-technological chemical is injected into the brain of a kitten, which causes it to develop “into a cat having all the psychological capabilities characteristic of adult humans” so that the cat can think, use language, etc.. [58] He then asserts that it would be “morally indefensible” to deprive the cat of “a serious right to life, (because) there would be no morally significant differences” from adult humans!

Causal process

Tooley also argues that it would be permissible to kill the newborn kitten, instead of injecting it, because “the fact that one could initiate a causal process” that would afford it a right to life, does not mean it has the right beforehand. In other words, there is merely the possibility of transforming it. He says refraining from initiating the process, then, is “not seriously wrong.” Therefore, according to Tooley, interfering with the process is not wrong either, such as when a kitten is accidentally injected, but has not yet developed the morally relevant “properties.” He says one could either kill the kitten or inject it with a “neutralizing” chemical.

Tooley’s trip

The analogy which Tooley is attempting to draw is that the potentialities are the same whether you are dealing with a human unborn child or his injected kitten. Tooley maintains “the only difference” is that the potentialities have been present in the human unborn child from the beginning of its development, but insists it “is a morally irrelevant difference.” [57] Even though his kitten hypothetical is obviously totally unrealistic, it does result in Tooley tripping himself up. If you will recall, in Tooley’s first hypothetical, where futuristic technology reprograms the adult human’s brain, he tells us that the concern “is not just the continued existence of a biological organism, but the right of a subject of experiences and other mental states to continue to exist.” There, he is not at all concerned with the life of the reprogrammed individual. Yet, in his second hypothetical about the kitten, Tooley is concerned with the life of the reprogrammed cat! Just as he acknowledges that a machine’s desires are artificial, and therefore, do not serve to afford it a human’s right to life, the chemically-reprogrammed cat’s desires are artificial, and so it does not have a human’s right to life either. (That is not to say it does not have a cat’s right to life — whatever that may be — but the definition of what amounts to an “unjust killing” certainly changes.) Therefore, the potentialities really are not the same for a kitten or an unborn child, and the “potentiality principle” of the “pro-life” position stands.

Torture vs. killing

Another appeal of Tooley’s in support of his “self-consciousness requirement” is his suggestion that most people consider it worse to torture a newborn kitten for an hour than to kill it, and that the opposite is true as applied to adult humans. [57] According to Tooley, although a newborn kitten does not have a serious right to life, the kitten does have a right not to be tortured because of its desire not to suffer pain. He claims this is true even though it lacks a self-concept and a “desire that a self not suffer, (but) it can desire that a given sensation not exist.” [58] Certainly, a sentience requirement (not to feel pain) is necessary in order to have a right not to be tortured. However, Tooley is again confusing issues. Both are morally wrong — killing and torture — but just because most people may consider it worse to kill an adult human than to torture him or her for an hour and the opposite may (or may not) be true for kittens, it does not mean that one must have self-consciousness in order to have a right to life. The issues are wholly unrelated.

Infanticide and the need to know

Tooley averts the issue as to when an organism fulfills its “self-consciousness requirement” by delegating this determination as “obviously a matter for detailed psychological investigation.” He goes further and tragically errs in committing himself to the notion that infanticide within a short time after birth “must be morally acceptable” because, he says, a newborn baby clearly does not meet his standard for self-consciousness! [58] Tooley believes that line-drawing for infanticide “is not troubling because there is no serious need to know the exact point at which a human infant acquires a right to life.” [59] Under this theory of Tooley’s, a human infant who has acquired a right to life under Tooley’s own standards could be killed, and Tooley would have no problem with it because he refuses to draw lines. Tooley is obviously not a man of morals, and surely most people would differ with his obscure and deranged philosophies. (However, Tooley has somehow found his way into acceptance by pro-abortion supporters and into pro-abortion literature.) Justice requires the balance to be made in favor of the infant’s life because there is a serious need to know if persons who have or may have admittedly attained a right to life may be killed. Life is our most valued and protected right. Tooley’s “side of caution” is clearly not the side which has a concern about erring and potentially killing a human life.

“Desirable” infanticide

Tooley also believes “infanticide is morally permissible in most cases where it is otherwise desirable.” [59] “Otherwise desirable” could mean anything! It is difficult to even argue with Tooley on this issue. The immorality of elective infanticide — and for trivial reasons even — is so clear that one can realize we are dealing with an irrational person who is weighing the balance of rights and interests with a conscience that is vastly different from most rational and understanding people. Justice is basically a free-for-all with Tooley, and as long as any individual has a desire, that desire will outweigh any conflicts and pleasures will reign.

Animals vs. persons

Tooley concludes by telling us “the troubling worry is whether adult (non-human) animals . . . may not also possess a serious right to life” because, despite their inability to express themselves linguistically, they may still satisfy the “self-consciousness requirement.” He suggests that those who casually dismiss this claim “may turn out to be tragically mistaken” and that “our everyday treatment of animals is morally indefensible, and . . . we are in fact murdering innocent persons.” [59] I suggest the only one who is tragically mistaken is Michael Tooley. Animals may very well have rights, but they are not persons.

JOEL FEINBERG

A good of its own

In his essay, “Is There a Right to Be Born?,” Joel Feinberg first discusses his requirement of “interests” in order for individuals to be “suitable subjects for the attribution of rights.” [209] He says an individual can be represented by proxies, through guardians or trustees for example, even if the individual has no “will” as such. Therefore, he would not require a subject to have conscious desires in order to be able to have rights, as Tooley does. Also, he maintains that an individual needs to have “interests” in order to have “a good of its own.” He points out that an object or “mere thing” cannot have its own interests. Thus, a machine would be incapable of having rights attributed to it. However, Feinberg says that “(p)ossession of interests by no means automatically confers any particular right or even any rights at all upon a being” because “(t)o have a right . . . is to have a claim . . . (which) is to be in a legitimate position to make certain demands against others.” [209] His language, “in a legitimate position,” does not mean in a physical position, of course, because Feinberg has already stated that one who is not in such a physical state as to be able to make demands against others can be represented by proxy, even without a desire to make any demands.

Protection of future interests

Feinberg concedes that unborn children conceptually can have rights, “even though they are temporarily incapable of having interests, because . . . it does make sense to protect a potential interest even before it has grown into actuality, and it is possible to protect that interest.” [213] However, contrary to what Feinberg implies, surely it is logical to say that an individual can currently have an “interest” (not as in a conscious one) in having a further future interest

protected.

Wants and purposes

Finding that “higher” animals are able to have rights such as the “right not to be treated cruelly,” Feinberg concludes that vegetables cannot have rights because “they must be compounded somehow out of wants and purposes.” [210] Likewise, he says, “human vegetables” (comatose individuals) lack the requisite “expectation, belief, and cognitive awareness” in order for them to have “wants and purposes” and therefore, rights. Thus, he excludes permanently comatose individuals from his classification of who is capable of having rights. However, he decides that deceased persons are able to have rights against us because certain interests will survive one’s death, although the desirer cannot experience contentment. For example, “the rights not to be falsely defamed to those who once knew and loved them.” Feinberg seriously contradicts himself here because he previously said that an individual is capable of having his or her rights represented by proxy even though he or she may not have a present “will” that there rights be protected. Now he says that “wants and purposes” are required in order to have rights. He makes an exception and grants rights to the deceased but not to comatose individuals and fails to explain why.

Comatose individuals

Perhaps Feinberg is simply getting ahead of himself because what he would really like to assert is that a comatose individual does not have a right to life, whether temporarily or permanently comatose, because such an assertion could then fit into his theory that an unborn child has no actual interest in being born. [216] By saying here that the deceased are capable of being attributed rights, and a comatose person is not, he is making an unsound argument. This is clear when one compares the interests involved which Feinberg says survive one’s death to the identical interests which may be pertinent to a comatose person. If a bequest or a contract of a deceased individual (obviously made before his or her death) can create rights against us, the same covenants made by a comatose individual will surely create the same obligations. Likewise, Feinberg’s own example of the right of the deceased not to be falsely defamed surely applies to comatose individuals as well. Therefore, Feinberg really cannot mean that a comatose individual is absolutely incapable of having rights against us. Furthermore, if deceased and comatose persons can have rights and interests, so too can an unborn child — even under Feinberg’s theory — because no will, purpose, or desire is necessary (although, as seen in the movie “The Silent Scream,” which shows the ultrasound of an abortion, an unborn child does demonstrate that he or she has a will, purpose, and desire to live.)

Contingent ability

Using property law principles in an attempt to illustrate his point about rights and interests, Feinberg discusses “future interests” of the “unborn child” which, he says, are “contingent upon his birth.” [210] However, rights and interests of unborn children are not really contingent upon birth, but are in expectation of it. Feinberg explains how an unborn child can inherit an estate, but that the “right to use the funds is contingent upon his birth” and if the unborn child dies prior to birth, it “fails to take effect, and no one can claim through him . . . .” [211] Feinberg errs because such a fact does not make the unborn child’s right to the future use of the funds incapable of currently being protected. Thus, an unborn child is capable (although tragically not recognized under the terms of Roe v Wade) of having current rights which can be asserted by a representative (such as a guardian, guardian ad litem, “next friend” or public administrator appointed by a court if necessary) in the same way juveniles or individuals who are either mentally impaired, developmentally disabled, comatose or otherwise legally incapacitated are appointed such advocates on their behalf. The truth is not really that the unborn child’s “right to use the funds is contingent upon his birth,” but that his ability to use the funds is contingent — a big difference! Just like an adult who is either sleeping or comatose, the unborn child’s ability to use the funds is contingent upon his awakening, but his right is still there. This is true, even if the funds revert to someone other than his legatees if the comatose individual dies before he awakes. Until the heir’s death, the right still exists — whether he is an unconscious adult or an unborn child.

In utero injury

Another claim unborn children have which fits into what Feinberg calls “contingent rights” are rights “to be free of bodily injury that will handicap them after they are born.” This right has a “corresponding postnatal right” of an action in tort (personal injury law.) According to Feinberg, if an unborn child dies “in utero”, no one can sue on his or her behalf for wrongful death because his or her “right to be free of physical injury” is conditioned on being born alive. [211] This is simply a value judgment being made by Feinberg, and it does not necessarily follow as a logical conclusion to anything he has said thus far.

The “born alive” rule

Although some courts have required an unborn child to be born alive in order for an aggressor to be convicted of murder, this rule only exists because the common law definition of murder required the killing of a “human being.” Since murder had to be proven by the criminal standard of “beyond a reasonable doubt” and the courts were unsure of whether an unborn child qualifies as a human being, the “born alive” rule was conceived. The first case that addressed the issue of whether there can be a murder of an unborn child who is not born alive was a California case which involved a husband who kicked the stomach of his estranged pregnant wife, intending to kill her unborn child. The unborn child was born dead, and the court said the man could not be convicted of murder because “beyond a reasonable doubt” was the criminal standard for the burden of proof which needed to be applied to every element of the crime which included the element of the killing of a “human being.” Since the court could not be certain as to whether the unborn child was a human being beyond a reasonable doubt, the conviction was overturned.

The “suffering unborn child” rule

The California court’s decision caused quite a bit of controversy, provoking many of the state legislatures to change the definition of murder to “the killing a human being or fetus . . . .” Some courts have also required an unborn child to be born alive in order for a woman to be convicted, under any form of homicide, when the cause of death was the mother’s cocaine-usage. The requirement of being born alive does not make any moral or logical sense. What this criterion is actually requiring is that an unborn child fight for his or her life so much so that he or she is able to be born, to struggle in pain, and to gasp for one breath of air outside of the mother’s womb before dying. Then and only then, according to these courts, is the behavior which caused the death deemed to be punishable.

Punish the harm, not the behavior?

Clearly, it is not really the behavior which is then deemed punishable when the unborn child is subsequently born alive; instead, it is the court’s perception of the harm which occurs that the courts must consider to be the morally relevant difference to warrant punishment in one instance and not the other. This is true because the killer’s intent (“mens rea”) and the killer’s act (“actus reus”) are the same whether the act of violence results in the unborn child being born out of his or her mother’s womb dead or alive, and in only one instance is the behavior — the act of killing with the intent to kill — found to be unlawful! According to these courts, with one outcome there exists a duty, and with a slightly different outcome there is none. How can this be? Either there is an advanced duty to refrain from acts which may result in a child’s death just after the child’s birth or there is not. Therefore, the rationale of these courts must be the harm which they have perceived, and which the courts have deemed, to be materially relevant, though merely based upon the death occurring in a slightly different place, either with the child’s head outside of the womb or still in the birth canal.

Rewards and incentives

What this really means is that the swifter and inherently more dangerous killer is rewarded, while the one who does not kick quite hard enough or ingests a little less cocaine (so that the unborn child has a pulse for one moment outside of the womb) is punished. The distinction is illogical — the murderer who is actually of greater harm to society because he or she uses greater force, is not deemed to have had any duty to refrain from unjustly injuring the unborn child. On the other hand, the meeker killer is deemed to have a duty to refrain from unjustly injuring the unborn child. This is precisely what punishment is all about — holding individuals responsible for failing to abide by their legal duties. The courts in these cases have tragically erred. When injury occurs while an unborn child is still in his or her mother’s womb, it is abundantly clear that the rights and duties are really the same, whether the unborn child will die inside or outside of the womb. The killer has no way of knowing whether the unborn child will end up being born alive or born dead; therefore, that person has an undeniable advanced duty to refrain from unjustly causing injury to any unborn child. Any such injury to an unborn child is a breach of that duty, and the corresponding right of that unborn child not to be unjustly injured or killed has been violated — whether the child is subsequently born dead or alive. If judges and others would simply take the time to think this through before making a decision, they would find that there really is no other way of determining the duty without contradicting themselves. Consistency is the key element to establishing sound foundations in one’s arguments and in maintaining credibility, which the pro-abortion authors are unable to do.

Duty to refrain

Feinberg points out that the harmful conduct which caused the death of an unborn child could have occurred even before an unborn child was even conceived, such as with a pharmaceutical drug or where a mother acquires syphilis through a blood transfusion. [212] This would also be true for a mother with the AIDS virus. Again, if the unborn child is born alive, the courts would allow a mother to pursue a cause of action, but if the unborn child dies just a fraction of a second before his or her head extends out of the birth canal, she is denied the courts’ recognition that her child died unjustly, and the killer gets away. In one instance, the courts deem someone to have a duty not to do anything to a pregnant woman which might harm an unborn child, and in the other instance, there is deemed to be no such duty. However, in reality, the duty to refrain from such harmful conduct is always existent because there is no way of knowing in advance of what the outcome will be.

Death row mother

Feinberg discusses two instances where an “unconditional legal right to be born” has been found by courts. In the first case cited, a pregnant convicted murderess on death row was not granted her request to have her child die with her. [212] Feinberg disagrees with the court’s decision and claims that “(w)here the example is less complicated by guilt, the maternal prerogative principle is easier to apply.” [215] Certainly, guilt should not play a factor in differentiating when abortion is impermissible, but his example does make it easy to illustrate the way in which balancing occurs in order to have a just outcome. This woman really just wanted to secure the death of her unborn child. Her interest in wanting to secure the unborn child’s death and in avoiding the pregnancy, which actually had the effect of prolonging her own life, simply could not outweigh the interest in the child being born. Selfish, frivolous, and negligible desires do not trump a life or an undeniable future life which has already been created.

The Jehovah’s Witness

The second case involved a pregnant mother who was a Jehovah’s Witness and was refusing to submit to a life-saving blood transfusion, even though her unborn child was sure to die as well without the transfusion. [213] In that case, the woman’s right to her own religious beliefs was not denied — only her interest in practicing those beliefs was abridged to the extent in which exercising those beliefs would be harmful to someone else’s (the unborn child’s) life. This is because a life outweighs even other rights which we, as a civilized society, hold “sacred.” A “religious” group who believes in human sacrifice is not denied the right to its beliefs, but is denied its right to practice those beliefs to the extent human life is at stake. The innocent life and his or her right to life are simply more important and more valued.

Assuming birth

Feinberg says “it is difficult to think of any other reason for ascribing any rights to (unborn children) other than on the assumption that they will in fact be born.” [213] Likewise, we ascribe rights to all humans on the assumption that they will in fact live on. In other words, we all have rights with regard to future benefits, despite the fact that we may die later today. The fact that we may die later today does not cause any reason not to assign rights and duties to people. Further, even if we somehow knew that someone was certain to die tomorrow, we would not then immediately begin taking away that person’s rights today. The assumption that unborn children will in fact be born is a very good reason for ascribing them rights. To suggest that an unborn child might die in a miscarriage is like saying a person could have a heart attack tomorrow. Contrary to what Feinberg suggests, it simply does not follow that it is then somehow inappropriate to ascribe rights to either of them now.

Torture vs. pregnancy

According to Feinberg, all human beings have “rights not to be exploited, or degraded, or treated in cruel or inhumane ways” just by being born human. [213] He says the right not to be physically tortured can never be justly infringed, and says it “seems more plausible than a . . . ‘fetal-human’ right to be born that can never be justly infringed.” Feinberg claims this is especially true when a conflict would involve forfeiture of already living persons’ fundamental interests. [214] His point in weighing these two rights (not to be physically tortured and an unborn child not to be unjustly killed) is unclear because they are not in conflict with one another. Deciding which one is “more plausible” or more important is of no significance here and the point in debating the issue is moot; unless of course, Feinberg is trying to equate pregnancy with physical torture! Many advocates of the right to elective abortion enjoy attempting to portray the two as being parallel, but that just simply is not the case. After all, pregnancy is the means by which we all got here — there is nothing unnatural about it. Torture, on the other hand, is unnatural. Also, the element of torture which makes it so egregious is the torturer’s sadistic intent to cause physical pain. No such element is present in pregnancy — whether by the unborn child or by the advocates of unborn children.

Promises to unborn children

Similar to Judith Jarvis Thompson’s line of reasoning, Feinberg maintains that “it is impossible to make a promise to a fetus” and he says, therefore, a pro-life argument that a right of an unborn child to be born can be derived from a promise is not valid. However, as has earlier been established, rights are not dependant on promises having been made. Instead, rights existbecause of the essence of one’s humanity.

A “right not to be born”

Feinberg goes into a lengthy argument about his claim that an unborn child has no “right to be born” and may instead have a “right not to be born.” First he says that it is to be expected that “an impoverished, husbandless, pregnant lady dying of consumption” would choose abortion, “at least insofar as (she is) exclusively concerned with the welfare of the potential child.” [215] However, such a choice could never be expected, but may possibly be understood if the woman was about to die before the child would be born. (After all, she was “dying of consumption.”) If it were otherwise, the fate of her child could turn out just fine. She has no way of knowing, and neither do we, how the life of the child would turn out. Therefore, it is inaccurate to say that abortion is justified out of a single, impoverished mother’s “concern” for the welfare of the child. In fact, the exact opposite would be true. Fortunately, we do not live in a society which considers it to be “welfare” or to be “justice” to go out and kill someone who is impoverished, single, or dying.

“Unhappy circumstances”

Feinberg further says that “if the circumstances are very unhappy one . . . (such as) prenatal damage, poverty, malnutrition, (or) no father . . . (and) the child is allowed to be born” even though his or her future interests have been blocked and his or her rights to the protection of his or her interests have been violated, “that fact seems to me to be a very good reason for not permitting it to be born . . . (and) that nonbirth is something we now owe it, that . . . can now be claimed on its behalf as its due.” Perhaps Feinberg would believe in killing every infant and child who lives in poverty, without a father, and who may even have birth defects. Perhaps this would be mercy killing to him, and in some warped way he could find what he would believe to be a duty to support it. Plenty of people in this world have lived and are currently living under such non-ideal circumstances, but still prefer to have their lives all the same. All children, born or unborn, ought to at least be given the opportunity to make the choice as to the value of their lives, and how they will deal with those circumstances. Many people are born under Feinberg’s so-called “unhappy” circumstances but nonetheless end up with very fulfilling lives, whether they were adopted by other’s or parented by their birth mothers. In order to claim the right to have an abortion as a just killing and allegedly “in defense of another,” one needs to be very certain that, objectively, the mother’s life is in danger and that the means of terminating the pregnancy is the least drastic.

Killing the victim

Feinberg also claims that when we have knowledge of the destruction of the unborn child’s future interests and still permit him or her to be born, “we become a party to the violation of his rights.” [216] He says that “the only noncontingent rights fetuses ever have is the right not to be born,” but he says it was based on unborn children’s future interests. Feinberg is clearly confusing two rights of an unborn child with one another. Certainly, when any of an unborn child’s future interests have been destroyed, someone has violated the unborn child’s rights, and other individuals may have permitted those rights to be violated by wrongfully failing to enforce the unborn child’s rights; however, the remedy is not to kill the unborn child! No relationship to the duty to protect exists in such a case. If an adult’s rights have been violated, and the interest failed to be protected by others — such as when an adult is in the vulnerable position of being asleep or unconscious — the solution is not to kill the vulnerable person. The proper remedy is to try to do what you can by identifying the individual who had a duty and who violated that duty, and who is responsible for abridging the vulnerable individual’s right to his or her future interests (to which one must have had a right in the first place.) Then you hold the wrongful party accountable by requiring that individual to make the injured party “whole.” Even if it is impossible to structure an adequate remedy at law for a harm which has been done, it simply does not follow that you kill the victim!

“Wrongful birth” suit

Feinberg points to a “wrongful birth” suit which won at trial but was overturned on appeal as being inappropriate for legal action. [216-8] On behalf of an infant girl, a claim was made against the state because the girl was conceived when her mentally incompetent mother, while a patient in a state psychiatric hospital, was raped by a male attendant who was employed by the hospital. The gist of the claim was that the infant girl had been deprived of her property

rights, a normal childhood and home, proper parental care, support and rearing, and was “caused to bear the stigma of illegitimacy.” The appellate court said that encouragement of this sort of claim “would extend to all others born into the world under conditions they might regard as adverse.” On the other hand, Feinberg claims: “to be dealt feeble-mindedness or syphilis, or advance heroin addiction, or guaranteed malnutrition, or economic deprivation . . . . (is) a

swindle.” He believes “the duty of the state . . . (is) a duty of care owed to anybody likely to be affected by its conduct . . . .” However, the duty of care is to prevent the harm of the rape from occurring, and the remedy is to attempt to make the mother “whole” by awarding her appropriate damages for the rape, securing her protection against future assaults, and ensuring the future welfare of her child. In Feinberg’s example, there were no compensatory damages to

be given to the child under the “wrongful birth” theory because the position in which she would have been had the rape not occurred would have been that she was non-existent, and the position in which she would have been had the state performed an abortion would have been that of an aborted unborn child.

Michigan’s “wrongful birth” lawsuits

Here in my home state, as of the most recent case as of the last edit of this writing, the Michigan Court of Appeals has found wrongful birth claims to be invalid as against public policy. (See Brandy Taylor et al v. Surender Kurapati M.D. and Annapolis Hospital, 1999.) However, in an earlier case, the court found a valid cause of action in which a woman who gave birth to a child born with Down’s Syndrome sued her doctor and the hospital in the county Circuit Court. She

claimed that, had the doctor and hospital tested her unborn child for Down’s Syndrome and had they told her that her child would be born with Down’s Syndrome, she would have aborted her child. Thankfully, this case was effectively overturned.

Deadly ramifications

The legitimization of wrongful birth suits has several ramifications. First, it devalues the life of this woman’s child and the lives of every person now living who has Down’s Syndrome or any other “birth defect.” Secondly, it opens the door for lawsuits from women claiming that, had they been told they would give birth to a girl instead of a boy, they would have aborted. The courts would then have to determine the value of the girl’s non-existence vs. existence. The argument would probably be focussed on a claim to a universal and “fundamental” right to elective abortion under Roe v. Wade, no matter what the intent or goals of the mother were. Next, it creates a standard of care in the medical field that would require doctors and hospitals to test pregnant women earlier and earlier for birth abnormalities in order that their “window of opportunity” to abort would be open pursuant to Roe v. Wade’s trimester scheme. This would then cause more and more doctors to be wrong when prognosticating because the sooner they test, the higher the margin of error is. Many of us know women who were told that their children would be born with birth defects, and ended up having healthy babies.

Wrongful abortions?

The last ramification which would perhaps be the scariest to most people — whether they identify themselves as “pro-life” or “pro-choice” — is that perfectly healthy babies will be aborted because doctors are not going to risk being wrong or risk waiting to test, and women will be denied any claims for wrongful abortions of healthy babies because of the previously discussed “born alive rule.” For example, in Michigan, we had the born alive rule for many years. Even

if a woman was able to secure the body of her aborted unborn child and was able to take the body for a second opinion as to whether the baby had any anomalies, she would have no recourse if she later discovered that her unborn baby was healthy and the doctor was wrong. Even a doctor’s gross

negligence would not create a cause of action because the child was aborted and was, therefore, born dead. However, Michigan passed a new law — the Prenatal Protection Act — in the Fall of 1998, which protects women from harm to their unborn children, thereby significantly curtailing the “born alive rule” in Michigan. Incidentally, the abortion advocates, showing their true agenda, fought vigorously not to have these women protected for fear it could later impact

on abortion law.

Partial-birth abortions

The “born alive rule” is one of the reasons why many abortionists are choosing partial-birth abortion as their preferred means of aborting unborn children. The baby is turned in the breach position by the abortionist with the guide of ultrasound, the baby is then delivered feet-first only up to the base of his or her skull. The base of the baby’s skull is then pierced with scissors and spread open, a tube is inserted, and the baby’s brain is suctioned out while his or her head collapses — all prior to the baby’s head being delivered out of the womb. This satisfies the courts’ requirement that a baby be born dead in order for a doctor who has or who may have committed malpractice to be able to get away with it. If the baby is removed by Cesarian section or by induced labor and the baby is born alive, and if the baby then dies, the doctor may be exposed to a malpractice claim by the mother if the doctor breached a duty of care owed to the mother and the baby. Therefore, abortionists have a vested interest in ensuring that all unborn children are removed from their mother’s wombs by the worst drastic means, with no possibility of life. This is also an inherent conflict of interest since most pregnant women are first interested in preserving their own lives and health, but are also interested in having a baby if possible. The absurdity of the abortionists’ interest just further demonstrates the inherent problem with a failure to recognize that unborn children have a right not to be unjustly killed.

Mandatory abortions

Feinberg has amazingly attempted to justify a universal right to elective abortion on the basis that someday a child or adult who is unhappy with his or her life may bring a lawsuit for having been born — essentially, for being alive! No matter what Feinberg may think, the mere threat or potential for a lawsuit is not a justification for abortion. If a mother does not want to abort her unborn baby when her unborn baby’s “future interests” may have already been destroyed, Feinberg would see a duty on everyone else’s part to prevent the child from being born — thus, advocating mandatory abortions whenever he, or others, have determined that the child’s life would not be worth allowing to occur. Clearly, this notion of Feinberg’s echoes the sentiments of Adolph Hitler and Nazi Germany.

Being around to complain

Feinberg says that when a potential person is aborted and, therefore, denied the “chance to be born into a life quite sure to give him love and wealth and fulfillment . . . , there is no person around to complain that he himself was wronged.” [219] But it is not necessary to have the child “around to complain” in order to maintain that the aborted child has born wronged. In any wrongful death or criminal homicide action, someone else “complains” on behalf of the unjustly killed individual, whether that person is the next of kin as a “Next Friend” or the government on behalf of the people, as it is a crime against society. If, under Feinberg’s theory, the aborted child actually needed to be “around to complain” in order to demonstrate that the aborted child was wronged, then it would follow that anyone who is ever unjustly killed would not be “around to complain that he himself was wronged” and every killer in our society would literally be getting away with murder.

“Never knows what hits him”

In justifying denial of this unborn child’s right to be born, Feinberg says that “the fetus with no chance becomes a human being who gets badly hurt, but the fetus with the glittering future never learns what he is missing and never ‘knows what hits him.’” However, this argument could be applied the same way to any person who has a “glittering future” and is murdered while in an oblivious state — such as when a person is sleeping or unconscious. Although the incognizant victim may “never learn() what he is missing and never ‘knows what hits him,’”: the denial of his right to continue living clearly is not justified. Perhaps Feinberg would say it is all right to deny this person the remainder of his life or his “future” life on the basis that he “never knows what hits him” because he was killed in his sleep. Then again, his own theory may justify the denial of Feinberg’s own right to life and his own murder on the bases that Feinberg was sleeping, he would not know what he is missing in the future, and he would no longer know the difference, so what does it matter?

“Mere nonbenefit”

Feinberg says that in the case of the first unborn child “with no chance,” one can claim that the child, once born, suffers harm, whereas with the second unborn child “with a glittering future,” one can only claim “mere nonbenefit” on behalf of the aborted child. [220] Again, one could then claim that an unconscious or sleeping individual does not suffer harm if murdered and can only claim “mere nonbenefit.” This is further illustrated if the person was about to receive a lot of money or some other benefit. In actuality, that person, as well as the unborn child, does have a right to his or her claim of “nonbenefit.” Also, whatever harm Feinberg’s first unborn child suffered by being born (and to the extent that the child had a right to be free from that harm and someone violated a duty with respect to such right,) then a remedy can be fashioned accordingly so that the child can theoretically be made “whole” under the law. For example, if someone raids a trust fund, the unborn child’s right to the trust fund can still be protected, and an adequate remedy would be money damages for the funds which were wrongfully taken.

A crime against society

Feinberg maintains that “(w)hen a fetus with a promising future is aborted, neither he nor any other existing being is harmed by it . . . .” Presumably then, Feinberg would hold this to be true even if he (pursuant to his euthanistic-vigilante notions about having a duty to abort unborn children) went further and aborted an unborn child which a mother wanted to keep, but which Feinberg felt he had a duty to abort. Again, under the “born alive rule”, the woman would have no recourse against Feinberg for doing so. It seems clear that he would maintain that in such a scenario, no “other existing being is harmed by it . . . .” However, someone in addition to the unborn child is harmed when an unborn child is aborted — either a relative as the child’s “Next Friend” or the state as a representative of the people of the state. Just as when a mother kills her child or a husband kills his wife, the state steps in to punish for the violation because the homicide is considered to be a crime against the state and against society. In other words, society as a whole is harmed when anyone is unjustly killed.

If a tree falls . . .

Just because someone has no family or friends who would directly feel the pain and the “harm” of his or her unjust killing, does not mean that the lonesome person is a free target for murder. It’s like the old question, “if a tree falls in a forest and no one is around to hear, does it make a noise?” The answer is “yes!” Whenever anyone is unjustly killed, we are all harmed by the killing, and that is why we have our criminal laws. Feinberg had previously acknowledged that individuals’ rights can be represented by others on their behalf. Therefore, there can be no right to elective abortions on the basis that no one can assert or enforce the unborn child’s right because such is simply untrue. A family member or friend as “Next Friend,” a guardian ad litem representing the child’s best interests, or a prosecutor representing the people of the state can assert and/or enforce the unborn child’s right not to be (and/or not to have

been) unjustly killed.

JOAN C. CALLAHAN

Human being vs. person

Joan C. Callahan, in her essay, “The Fetus and Fundamental Rights,” admits that “unquestionably, human fetuses are, from the earliest stages, alive,” but says the relevant “issue is not when human life begins, . . . (but) whether the living human fetus should be recognized as a bearer of the same range of fundamental moral rights” which humans who have been born have. [117-8] She differentiates an unborn child from a “person” by saying that a human being is a homo sapien, but that a “person” is a bearer of the strongest moral rights. In her mind, one is a biological claim and one is a moral claim.

Defining the unborn

Paternity laws analyze whether a child has been born or conceived during a marriage; then the husband at the time of conception is presumed to be the biological father — not whether a child was born or a fetus conceived during the marriage. Black’s Law Dictionary, 5th Edition, defines “fetus” as “unborn child” and defines “unborn child” as “the individual human life in existence and developing from fertilization until birth.” Black’s Law dictionary also defines “child” and “children” as “progeny; offspring of parentage. Unborn or recently born human being.” The American Heritage dictionary, 3rd Edition, defines “fetus” as “in human beings, the unborn young,” and includes in its definition of child “an unborn infant; a fetus.” Webster’s dictionary also defines “fetus” as “unborn child.” Except in the neonatal intensive care unit of hospitals, we do not call a newborn a “neonate,” so why would anyone call an unborn child a “fetus?” I assert that the answer lies in abortion supporters’ intentions to de-humanize human unborn children.

Acorns vs. unborn children

Callahan accepts that a “conceptus” (an unborn child at conception) is the beginning of the life of a future person, but using the same exact argument which Thompson makes, Callahan says an unborn child is to a person, what an acorn is to an oak tree. Because of the fact that they are unlike, (which she says we “settle the issue by setting a convention which does not seem counter-intuitive. . . , “) we must therefore, says Callahan, “sit down and decide whether fetuses are to be recognized as full-fledged persons as a matter of public policy.” [119]

The comatose “E.T.”

In an effort to support her theory that the distinction between an unborn child and a person is relevant, Callahan uses the title character from the movie “E.T.” (“The Extra Terrestrial”) as an illustration. She claims that “E.T.” is a person with fundamental rights because of his characteristics such as the capacity to suffer mental and physical pain, the ability to make plans, a sense of himself as an ongoing being, and such — all of which, she says, unborn children do not have. [117-9] However, if one recalls the movie, when “E.T.” slipped into a coma, he no longer had these specific characteristics which Callahan has emphasized. As was the intent of the movie’s director, Steven Spielberg, the audience still felt “E.T.” had a fundamental right not to be unjustly killed by the N.A.S.A. researchers. In fact, the scene in which the boy, “Eliot,” was crying over the comatose “E.T.” was probably the most memorable and moving moment in the whole film! Obviously, as “E.T.” has demonstrated for us better than Callahan could herself, there is something other than simply having characteristics such as the capacity to suffer mental and physical pain, the ability to make plans, and a sense of one’s self as an ongoing being, which is relevant for establishing rights. That “something” must be the potential for having these traits and therefore, unborn children fit into the definition of a person, as well as the comatose “E.T.”.

Mere potential

Callahan says an unborn child is merely a “potential person” or “person-not-yet.” However, as has been illustrated, the potential for personhood, along with its characteristics, are enough for fundamental rights to attach. [123]

Unwilling life support

Callahan also maintains that infants do not have any of her requisite traits for recognizing personhood, but says that other considerations suggest that birth is the most ideal and non-arbitrary place to attach fundamental right. [121] Such factors, according to Callahan, include the ability and interest of others to care for the infants, and the fact that they are “now biologically independent beings that can be sustained without forcing an unwilling woman to serve as a life support.” [122]

A deserted island

However, consider a scenario where a woman is stranded on a deserted island with her new-born infant, or, if one were to prefer the situation to be more proximate, the woman and her child can be stranded in a vacant house in Detroit during a snow storm. In either of these situations, the new-born infant cannot “be sustained without forcing an unwilling woman to serve as a life support.” Therefore, the “viable emergence” distinction (as Callahan labels it) must not be relevant. This is clear because, in either of the “stranded mother” scenarios, we would hold the mother to a duty to breast feed if no formula is available. To permit the mother to starve the child to death out of her selfish desire not to be inconvenienced or to have her “freedom of choice” to decide what she can do with her own body would clearly be unjust, and the infant would have been unjustly killed if starved in such a manner. Likewise, the same duty exists when the baby is older or when the person in the unique position is a man. Someone must still act as “life support” to feed and sustain the baby. In other words, infants are clearly not fully and necessarily “biologically independent beings that can be sustained without forcing an unwilling woman to serve as a life support,” as Callahan has suggested.

Cesarian duty

Maintaining the same position as Thompson, Callahan says that the right to an elective abortion is not a right to secure the death of the unborn child, because to allow such would be equivalent to infanticide. She says that one “can justify a requirement to sustain viable fetuses that survive abortion.” [122] Again, this suggests that one could require sustaining a viable unborn child which could survive an abortion. In other words, one could require a Cesarian section in such a case if such is the least drastic means by which to safely remove the child from his or her mother’s womb. Also, once outside the womb, the baby is no longer what Callahan refers to as a “viable fetus . . . (which) survive(d) abortion.” Instead, the baby is, by Callahan’s own definition, clearly a “person” at such time. This is despite the fact that such an infant delivered out of his mother’s womb by Cesarian section was not technically “born” but was, as Shakespeare so eloquently phrased it in his play, Macbeth: “from his mother’s womb, untimely ripped.”

“Exquisite intimacy”

To the extent an unborn child can feel pain during the pregnancy, Callahan believes the abortion must specifically be shown to be “otherwise justifiable” because, she says, just as with kittens, an unborn child has “a strong moral right not to be treated cruelly.” [122] She indicates that if an unborn child cannot feel pain, then the killing of an unborn child could never be unjust by her standards. However, she then claims that any reason for wanting an abortion is justified, simply because of “the exquisite intimacy of pregnancy.” [122] It is amazing how some elements of our society will attempt to justify or excuse violence whenever it is linked to intimacy or labelled “domestic.”

“The Silent Scream”

If anyone has ever seen the film, “The Silent Scream,” they would have witnessed, and they would have a clear understanding, that unborn children do feel incredible pain as they are aborted and killed. The film was created by a former abortionist who had a theory that unborn children experience significant pain during abortions. This doctor received permission from a practicing abortionist to perform an ultrasound during the abortion of an unborn child during the first ten weeks in his mother’s womb. Just as the former abortionist suspected, the unborn child “silently screamed,” kicked, stretched and fought back until he was dead. The horror of seeing the unborn child’s head toss back, mouth open wide and fists clench, caused the attending abortionist to never perform an abortion again. Perhaps if Callahan actually witnessed this atrocity, she would set her standards differently.

Implications

Finally, Callahan sums up what she considers to be the two major implications of treating “fetuses as beings with the full range of fundamental moral rights.” [124] First, she admits that abortion in the case of rape would have to be ruled out if unborn children were to be treated as “beings with the full range of fundamental moral rights” for the same reasons which Judith Jarvis Thompson maintains: “Fundamental rights are not a consequence of where someone came from.” [125] It appears as though universal abortions on demand would be more comfortable for Callahan because she obviously desires that there be some way to allow abortions in cases of rape, despite the fact that it would go against her own philosophy of rights theory. The second ramification which she claims is that (again like Thompson’s idea) in cases of a threat to a mother’s life, a state cannot prefer either the mother or the unborn child over the other. However, Callahan errs because a state actually can “prefer” an innocent non-aggressor over an innocent aggressor, by choosing not to punish the innocent non-aggressor for defending her own life, as was discussed earlier.

CHARLES HARTSHONE

“Years until it is a human being”

In his essay “Concerning Abortion: An Attempt at a Rational View,” Charles Hartshone explains that the egg and the unborn child are both human in origin, but says that a fertilized egg cell cannot speak, reason or judge between right and wrong, and cannot have personal relations for months, or even years until it is a human being. Even then, he says, the ability to speak, reason, or judge is only acquired when others have taken pains to help the child. [110] Under this theory, an adult who has been kept in a closet since birth, or who perhaps has grown up alone in the wilderness — without the benefit of someone having taken pains to help him or her to acquire the ability to speak, reason, or judge between right and wrong — would not be considered by Hartshone to be a human being because the individual would not have had such personal relations. Also, a temporarily or permanently comatose individual cannot speak, reason or judge between right and wrong, and cannot have personal relations. Similarly, a developmentally disabled or mentally ill person may not be capable of those functions either. This leaves Hartshone in a position of having to find, under his articulated standards, that individuals who are comatose, unconscious, developmentally disabled, or mentally ill not to be human beings.

The genetic code

He labels an unborn child as being either a “subhuman animal” or a “possible individual” as compared to a being which is an “actual person.” Hartshone says the unborn child will be an actual person only in possible or probable destiny. [110] He claims that it is the nervous system which counts for individuality, and says that a very premature baby’s nervous system is like a pig’s. However, as John Noonan points out in “Deciding Who is Human,” the full genetic code is present from conception, along with the potential capacity for rational thought. [135] A child’s gender, eye color, hair color, and the entire genetic map for his or her body is present from the moment of conception. Not only are we talking about children, but boys and girls. Hartshone points out that identical twins have the same gene combination and suggests that somehow this is relevant to a question of whether a distinct person can exist at conception. [111] However, this is insignificant as a counter-argument for establishing personhood because with identical twins, there are simply two persons present. It is also interesting to note that even identical twins each have their own unique fingerprints.

Hopelessly or permanently an unborn child

In response to the assertion that “if comatose individuals are considered person and have a right not to be unjustly killed, then fetuses should too,” Hartshone contends that “the killing of a hopelessly senile person or one in a permanent coma,” is not equivalent to the killing of persons in the full sense! [112] He seems to think that a “hopelessly senile person” and “one in a permanent coma” have something less than the right not to be unjustly killed. Not many rational-minded individuals would agree with Hartshone on such a position. Note how Hartshone painstakingly avoids addressing the status of a non-“hopelessly senile person,” or a person in a temporary coma. It is crucial to address these particular issues because, after all, an unborn child is not “hopelessly” an unborn child, nor is he or she permanently an unborn child. There is no sense of despair to be attached to the unborn child, as there may potentially be with a “hopelessly senile person” or “one in a permanent coma.”

“No such ‘I’ to miss it”

Hartshone tells his readers: “I feel no indignation or horror at contemplating the idea the world might have had to do without me. The world could have managed, and as for what I would have missed, there would be no such ‘I’ to miss it.” [113] Assuming Hartshone’s statement is true, and as it is intended to support the idea that abortion is permissible, it also supports the just permissibility of killing Mr. Hartshone today. After all, he does not mind that the world would go on after his killing, thus being without him, and “there would be no such (Hartshone) to miss it.” The argument that an unborn child would never know the difference anyway if he or she had been aborted is a common one, but the same argument supports the murder of any human being. Therefore, it is clearly negligible.

Aborted heroes

Finally, the world would be much different if Moses or Jesus, Einstein or Newton, Rosa Parks or Martin Luther King, Jr., or simply any person had been aborted. The world may in fact be much different now because of people who have been aborted. Mother Theresa shared that she had been praying to God as to why he had not sent someone to find a cure for the A.I.D.S. virus. After praying for many days, she said she finally received an answer from God. His response, she said, was that He had sent someone, but that person had been aborted. Whether you are a spiritual person or not, you must realize that the world is necessarily different because of those who have been aborted. There is a famous and telling saying from an author unknown, “A hundred years from now, it will not matter what kind of house I lived in, what kind of car I drove, or what my bank account was, but the world may be a different place because I was important in the life of a child.”

OTHER AUTHORS

A few other authors offer similar definitions of what constitutes personhood or human life. The following paragraphs present a sketch of a few additional writers’ theories regarding personhood.

MARY ANNE WARREN

Basic Criteria

In an article entitled “On the Moral and Legal Status of Abortion,” Mary Anne Warren maintains that an unborn child is not a person, and offers a “rough and approximate list of the most basic criteria of personhood . . . or humanity in the moral sense: [77]

“(1) consciousness (of objects and events external and/or internal to the being), and in particular to feel pain;

“(2) reasoning (the developed capacity to solve new and relatively complex problems);

“(3) self-motivated activity (activity which is relatively independent of either genetic or direct external control);

“(4) the capacity to communicate, by whatever means, messages of an indefinite number of possible contents, but on indefinitely many possible topics;

“(5) the presence of self-concepts, and self-awareness, either individual or racial, or both.”

She has just excluded about half of our society from a right not to be unjustly killed! Many developmentally disabled persons may not meet some or any of the requirements. Some individuals exist who do not meet the sentience requirement. Most children and even some adults will fail the reasoning requirement because of an incapacity “to solve new and relatively complex problems.” Certainly most babies do not meet the third and fourth requirements. Lastly, it is rare to find adults who truly have a defined self-concept and self-awareness. Many people will spend their entire lives trying to figure that one out, but nevertheless, still have a right not to be unjustly killed.

Good candidates

Warren says that a person need not have all of these, and that (1), (2), and maybe (3) are sufficient and are “good candidates for necessary conditions.” She further states that in order to show that an unborn child is not a person, one needs only to find that the unborn child does not satisfy any of these conditions. Warren falsely claims such has already been established: “I consider this claim to be so obvious that I think anyone who denied it . . . would thereby demonstrate that he had no notion at all of what a person is.” [78] Furthermore, she says, “(i)f the opponents of abortion were to deny the appropriateness of these five criteria, I do not know what further arguments would convince them. We would probably have to admit that our conceptual schemes were indeed irreconcilably different, and that our disputes could not be settled objectively.” [78]

Conceptual schemes

Warren may feel that those who disagree with her have “no notion at all of what a person is,” but her theory on personhood has lead her to her own astonishing and unexplainable conclusion: “Some human beings are not people, and there may well be people who are not human beings.” [79] This statement of hers makes no logical sense whatsoever, and I am proudly forced to agree with her assessment that “our conceptual schemes (are) indeed irreconcilably different.”

Robots and moral rights

Warren alienates herself further from the rest of the rational-thinking world when she insists that highly advanced robots or computers should be recognized “as people in the fullest sense, and . . . (we should) respect their moral rights!” [79] It is unclear what her basis is for asserting that robots are people. Perhaps she has fallen hopelessly in love and is having a meaningful romantic affair with one — who knows? Warren then confuses her readers more by asserting that if an “entity” is not a person, then it is “absurd” to assign rights and duties toward it; yet, she does not explain why she advocates that highly advanced robots or computers should be afforded moral rights. Her definition of “absurd” seems to be rather warped given that she would assign moral rights and duties to robots and computers!

JANE ENGLISH

“Being alive”

In her work entitled “Abortion and the Concept of a Person,” Jane English says that a person is a cluster of features which are more- or less-typically found. These features are biological, psychological, social, legal, and are also related to rationality. [84] She says that an advanced robot could meet all of these factors, but still fail to be a person. Therefore, unlike Warren, English maintains that “being alive” is a necessary prerequisite for personhood. However, she finds that a conclusive answer as to whether an unborn child is a person is unattainable. [85]

What to do with uncertainty

Even if we can concede that an unborn child might possibly be a person or a human being, or that we are not absolutely certain as to whether an unborn child is or is not a person, then that should be enough to warrant assigning a right not to be unjustly killed to all unborn children. After all, if you were in your automobile, pulling out of your driveway, and you thought there might be an unseen person behind your vehicle, you simply would not proceed down your driveway without knowing for sure that there was not a person hidden outside of your view behind your car. To proceed otherwise would be engaging in a reckless disregard for someone else’s life, or even gross negligence, and you would have thereby breached your basic duty of care owed to all individuals not to act unreasonably and thereby causing them harm. “But for” your negligence in failing to be certain as to whether there was a person in harm’s way, even though the person was unseen, a human life may have been unjustly killed. Because the error could be so great if we are wrong — the unjust killing of a human being — we ought to err on the side of caution where, admittedly, there might be a human being or a person, because human life is precious.

SIDNEY CALLAHAN

A continuum

On the side of rights for unborn children, Sidney Callahan, in her article “Abortion and the Sexual Agenda,” explains that “human development is a continuum” so that the continuous development of unborn children is no different from all humans’ development. [132] I may not look the same as I did when I was four years old or four days old in my mother’s womb, but that was undeniably still me.

HARRY J. GENSLER

Being human

Harry J. Gensler characterizes the three senses of being human in his essay entitled “An Appeal for Consistency.” Those three senses of being human are: “rational animal,” “genetic,” and “population-study.” Gensler says it “depends on what is meant by ‘human.’” [94] He describes the various claims and/or theories as to when human life begins:

“(1) at conception;

“(2) when individuality is assured (and the zygote cannot split or fuse with another);

“(3) when the fetus exhibits brain waves;

“(4) when the fetus could live apart;

“(5) at birth; and

“(6) when the being becomes self-conscious and rational.” [94]

Consistency

Gensler says we must decide which sense to use, but that scientific data and our own intuitions cannot help in choosing which sense is the most appropriate one. According to him, one should be consistent in all of his or her arguments and applications in order to justify the selection of criteria, and in order to lend credence to one’s own arguments. I agree with Gensler. All of my above arguments are based on an appeal to consistency without any “convenient exceptions.” Gensler mentions at the end of his article that someone may wish to hear an argument as to why one should be consistent, but, he points out, “in effect” such person is saying that he or she has “a closed mind.” [106] I would describe such a person as being arbitrary and as making a willful decision to be irrational.

CONCLUSION

Life

Certainly, an unborn child is human in nature, growing and developing at every moment, and living. Just think, if scientists found an unborn child just after conception — a “cluster of cells” — on the planet Mars or on Antarctica, the next day world headlines would read: “Scientists Have Found Life on Mars” and our president would be making a special televised address to the nation to announce these “spectacular” findings that scientists have found life. We would then be spending billions of dollars to probe Mars in search of a little water and nutrients because they know, that with a little nourishing, life can flourish. When those were the headlines in the summer of 1997, all that was found was the fossil of a cell on a rock believed to be from Mars — just look at all the fuss that is made. Yet, when certain scientists find the same “glob of tissues” in a woman’s womb which actually contains the full genetic code of a brand new human being, they claim they don’t really know what it is or that “it’s not life.” Can you imagine what the controversy and resulting punishment would be if someone were to destroy the fossil of a cell on the rock believed to be from Mars? This is a sad commentary.

The right of the unborn child not to be unjustly killed

An unborn child should be assigned the same rights as any person because an unborn child is human, is alive, is growing and developing, and is undeniably at the very least a living human being, with the full genetic code establishing whether he or she is a boy or a girl. Also, unborn children are capable of having rights and are capable of having their rights protected. Any uncertainty should err on the side of caution with regard to protecting a human life because the risk that one may unjustly kill a human being would result in too great of a harm. In addition, it is an indisputable fact that an unborn child is a living human being since no human “fetus” has ever been known to develop into a dolphin, a rabbit, or a carrot. Therefore, every unborn child should be treated as a person, and granted the universal human fundamental right not to be unjustly killed. Finally, self-defense as against an innocent aggressor is justifiable when one’s life is in danger; thus, an unborn child may only be justly killed in order to save the life of the mother.

BIBLIOGRAPHY

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