Thinking Critically About Abortion

Thinking Critically About Abortion
Dennis Schroader
PHI 103
Stephen Carter
August 2, 2010

Introduction/Thesis
Very few topics generate as much passionate debate from both sides as does the issue of abortion. Even twenty-seven years after Roe v Wade (1973), the abortion debate rages on talk-radio, Sunday morning political commentary, editorial pages and even in the halls of Congress. While this student is under no delusion that this paper will encompass the entire debate, what follows will argue that abortion should not be legal due to medical, legal and ethical reasons. This paper will further attempt to argue the case from the pro-abortion standpoint, and then conclude by refuting those very arguments.

The medical arguments against abortion are legion; however, let it suffice for now to establish that the child in utero is not, in fact, a part of the mother’s body. Human embryos developing in the womb are individual human beings. At conception, an embryo is genetically distinct from his or her mother. The pregnant mother has her own presumably unique set of chromosomes and DNA, whereas the embryo is comprised of approximately 23 chromosomes from both parents, thus making its DNA an amalgamation of the two and distinct from each. This distinction makes the developing child a unique being, not merely an extension of the mother’s body.

Furthermore, according to the Mayo Clinic’s website (2009), the embryo develops a heart and primitive circulatory system between 15 and 21 days after conception, and possesses distinct brain activity at approximately 35-42 days. While these developmental milestones may not establish the beginning of “life” in the minds of everyone, they must certainly raise the question of when life begins.

This leads to the legal matter. To be plain, the law is unable to determine when life begins. According to the majority opinion in Roe vs. Wade (1973), the Supreme Court of the United States wrote:

"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to an answer" (Section IX, Part B).

If the judiciary is unable to make this determination, and if it is true that a child in utero is a biologically distinct being, then should not other laws and legal precedent apply? This can only be answered as a matter of opinion. It is the opinion of this author that human life is human life and should be treated as such, regardless of its “address” (in or out of the womb). Even absent that belief, the American justice system requires that individuals receive the presumption of innocence before they receive any form of punishment, especially execution.

A near universally held belief in America is that the destruction of human life, absent desert, is a reprehensible act. There are many types of and legal definitions for this sort of behavior, a discussion of which goes far beyond the scope of this discussion. At this point, it is important to define a term: for the purposes of this discussion, desert refers to a person deserving or having earned something. In the heated debate between pro-life and pro-abortion advocates, the topic of capital punishment – the only other form of state-sanctioned homicide – often comes up.

With regard to the matter of capital punishment, Dr. Louis Pojman, a renowned American philosopher, explains the ethical basis for retributive punishment for the commission of crimes as it is practiced in the United States:

“The retributivist holds three propositions: 1) that all the guilty deserve to be punished; 2) that only the guilty deserve to be punished: and 3) that the guilty deserve to be punished in proportion to the severity of their crime” (Pojman, in Waller, 2008, Kindle location 8242).

Pojman continues to provide a persuasive ethical argument in favor of capital punishment as retribution:

“People often confuse retribution with revenge. Governor George Ryan, who recently commuted the sentences of all the prisoners on death row in the State of Illinois… quotes a letter from the Reverend Desmond Tutu that ‘to take a life when a life has been lost is revenge, it is not justice.’ This is simply false. While moral people will feel outrage at acts of heinous crimes… the moral justification of punishment is not vengeance, but desert.” (Kindle location 8248).

The point is that capital punishment is practiced as a form of retributive justice in response to the actions of the individual condemned to death. This is absolutely and necessarily different from abortion in that the child in utero - or children at all according to Roper v Simmons (2005) – is/are incapable of committing any offense so heinous as to deserve death.

Antithesis
While this author would very much like to think the above arguments should prove sufficient to convince even the staunchest of abortion supporter, that simply is not the case. Pro-abortion activists commonly take the position that abortion is legal and should remain so.

One of the strongest arguments in favor of legal abortions is that they provide safe alternatives to “back alley” abortions, which would occur anyway if made illegal. This author presumes the reader’s familiarity with at least some of the horror stories about pre-1973 abortion practices, particularly in states where it had not been legalized. This argument is often chosen because it is extremely difficult to argue in favor of putting pregnant women in dangerous situations. This, however, seems to demonstrate the fallacy of the false dilemma, “if not one, then surely the other” (Moore, 2007, p181).

Abortion supporters will also correctly assert that abortion is a settled matter of law in the United States. The legal history of abortion is a lengthier matter than the average American might expect. Legal abortion existed under English Common Law and is found in the writings of James Wilson, one of the founding fathers of the United States:

“With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger” (On the Natural Rights of Individuals, 1790-1792).

Upon first reading, this may not seem like much of an approval for terminating life in utero, however, the statement that “life begins when the infant is first able to stir in the womb” (Wilson) leaves room for the time from conception and implantation through those months where such stirring either does not happen or is perhaps undetectable.

Moving forward to the late 1960’s, the Supreme Court of the United States ruled on a number of cases that either directly or indirectly affected the legality of abortion under certain circumstances. Additionally, the state legislatures of at least twenty states had passed laws making abortion legal to varying degrees – restricted in sixteen of the twenty and only available on demand in Washington, Alaska, Hawaii, and New York. In 1973, the Supreme Court effectively removed the major barriers to abortion (Roe v Wade), and all subsequent rulings have served only to expand its access and applicability, with the exception of Gonzales v Carhart (2007), which upheld the Partial-Birth Abortion Ban Act of 2003.

Finally, the pro-abortion supporter may assert that “choice” is an essential part of women’s empowerment. Elisabeth Porter, an Australian professor and researcher, arguing in favor of the “special rights” of women, writes:

“Given women’s body, sexuality, and reproductive potential, reproductive rights affirm equality as an extension of the principle of bodily integrity and self-determination. Given the social position of women, a defense of autonomy in important. Insofar as women are not only responsible for pregnancy but also usually for the care of children, women must be the ones who ultimately decide on contraception, abortion, and childbearing” (Porter, 1994).

Synthesis/Conclusion
These are just a few of what this author views as the more convincing arguments in favor of maintaining legal abortion. The problem with these arguments is that they are logically flawed. The premises that because abortions are legal they are safer (presumably for the mother as they are by definition unsafe for the child), that the legal matter is settled and that women are entitled to “special rights”, even if true, fail to justify an act that amounts to infanticide.

Making an unconscionable act legal and medically safe does nothing to make the act morally acceptable. As has already been established in this paper, children in utero, at whatever stage of development, are distinctly individual human beings. The only way to make a moral argument in favor of abortion is somehow to de-legitimize the life by referring to the child as an “embryo”, “fetus”, or “blob of tissue” since those words are less emotionally charged than “baby”, or even outright deception. According to one Kathy Sparks, a former abortion clinic worker:

“Sometimes we lied. A girl might ask what her baby was like at a certain point in the pregnancy: Was it a baby yet? Even as early as 12 weeks, a baby is totally formed, he has fingerprints, turns his head, fans his toes, feels pain. But we would say ‘ it’s not a baby yet. It’s just tissue, like a clot’” (Williamson, 1986, p 28).

Even the words used to describe the procedure, such as “abortion” or “termination”, are chosen because they are clinically accurate and sound much better than “kill your baby”.

Additionally, with regard to the false dilemma fallacy mentioned above, overturning Roe v Wade (1973) would neither immediately make all abortions illegal nor return women or the medical profession to pre-1973 states. In fact, also as previously established, twenty-three states already had laws on the books, which made abortion legal within those jurisdictions. It stands to reason that other states would follow suit in the event Roe were overturned. The only difference is that the authority would come from elected state legislatures rather than appointed judges and thus ostensibly reflect the will of the voters in those states.

Furthermore, Dr. Bernard Nathanson, one of the co-founders of the National Association for the Repeal of Abortion Laws (NARAL) and a abortion provider himself, wrote in his book Aborting America (1979):

“I confess that I know the figures [5,000 to 10,000 annual  deaths resulting from “back alley” abortions] were totally false…But in the ‘morality’ of our revolution, it was a useful figure, widely accepted, so why go out of our way to correct it with honest statistics?” (p 193).

The simple fact is that bad law, no matter how “settled” is still bad law. By deciding Roe, the Supreme Court seized authority not granted by the Constitution. Instead of interpreting the Constitution and its amendments, the Court established a new Constitutional right to privacy, which did not previously exist (Ely, 1973). While the Court has authority to interpret the Constitution, the power to amend it lies with the Congress, the President and the states (Article V). Further, the tenth amendment limits federal authority to those powers specifically granted to it and reserves all others to the states or people. By that rationale, the Supreme Court was wrong to invent what did not exist in the Constitution. The Court should therefore overturn this decision and devolve the issue to the states, who have actual Constitutional authority in this matter.

Finally, as far as women’s rights are concerned, what makes murder wrong is the loss of the victim’s future, presumed to be of value. This is unarguable when discussing any human being having already been born. Professor Porter (1994) may argue for the “special rights of women”, however no reasonable person would argue that such rights would extend to infanticide. Don Marquis, a professor of philosophy, argues against abortion from an ethical perspective by first establishing the wrongness of killing adults, stating, “… it would seem that what makes killing any adult human being prima facie seriously wrong is the loss of his or her future” (Marquis, in Waller, 2008, Kindle location 8556). He goes on in his explanation of his theory of wrongness to include infants and children: “…it is prima facie seriously wrong to kill children and infants, for we do presume that they have futures of value” (Kindle location 8590).

This reasoning leads to his ultimate thesis that the argument for determining rights by personhood as established in current law is flawed and incomplete (Kindle location 8592). In fact, similar legal justification was used in the Dread Scott(1857) decision that slaves were not “legal persons”, but the property of their owners. This author assumes that no refutation of that reasoning is necessary.

As first quoted, what makes killing wrong is the loss of that individual’s future (Marquis). If that is true, he argues, then it follows that a child in utero, at whatever stage of development has a valuable future, thereby making the killing thereof “prima facie seriously wrong”. Whatever the role of women in society, whatever “special rights” they may claim, surely those cannot extend to these kinds of acts.

References
Ely, J. (1973, April). The wages of Crying Wolf: A comment on Roe v. Wade. Yale Law Journal, 82(5), 920-949.

Gonzales v Carhart, 550 U.S. 124 (2007)

Marquis, D. (2008). Abortion is immoral. In B. Waller, Consider Ethics: Theory, Readings, and Contemporary Issues, 2nd Edition. (Kindle locations 8519 – 8669). New York: Pearson

Mayo Clinic. (2009). Fetal development: The first trimester. Retrieved July 31, 2010 from http://www.mayoclinic.com/health/prenatal-care/PR00112

Moore, B., Parker, R. (2007). Critical Thinking, 8th Edition. Boston: McGraw Hill

Nathanson, B. (1979). Aborting America: The Case Against Abortion. New York: Pinnacle Books.

Pojman, L. (2008). The death penalty is sometimes morally legitimate. In B. Waller, Consider Ethics: Theory, Readings, and Contemporary Issues, 2nd Edition. (Kindle locations 8213 – 8458). New York: Pearson

Porter, E. (1994, Summer). Abortion ethics: Rights and responsibilities. Hypatia, 9(3), 66-87.

Rice, B. (2006, March 23). Abortion: Ethical analysis. Lifestyle. Retrieved April 16, 2010 from http://www.associatedcontent.com/article/25347/abortion_ethical_analysis.html

Roper v Simmons, 543 U.S. 551 (2005)

Roe v. Wade, 410 U.S. 113 (1973)

Williamson, G. (1986, January). The conversion of Kathy Sparks. Christian Herald. 28.

Wilson, J. (1792). Of the Natural Rights of the Individual. Retrieved April 18, 2010, from the Ashbrook Center for Public Affairs at Ashland University, TeachingAmericanHistory.org Project Web site: http://teachingamericanhistory.org/library/index.asp?document=831