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The logic of the landmark abortion ruling Roe v. Wade was that ignorance about when human life begins entails that the government not impose restrictions upon abortion practice.

If you go back to August 16, 2008, Rick Warren asked presidential candidate Barack Obama when a fetus gets human rights, and Mr. Obama (who opposes any abortion restrictions for any reason, in line with Roe v. Wade) famously responded that the answer was “above his pay grade.”

Philosopher Peter Kreeft of Boston College helps us think through the logic of this position.

He makes the commonsensical point of formal logic that “either we do or do not know what a fetus is,” explaining:

Either there is “out there,” in objective fact, independent of our minds, a human life, or there is not;

and either there is knowledge in our minds of this objective fact, or there is not.

The first set is an ontological claim (what is or is not); the second set is an epistemological claim (what we know or do not know). The result yields four logical possibilities:

  1. The fetus is a person, and we know that.
  2. The fetus is a person, but we don’t know that.
  3. The fetus isn’t a person, but we don’t know that.
  4. The fetus isn’t a person, and we know that.

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What are the implications for these four positions? Kreeft analyzes them as follows:

Abortion in Scenario #1: The Fetus Is a Person and I Know That

In Case 1, where the fetus is a person and you know that, abortion is murder.

First-degree murder, in fact. You deliberately kill an innocent human being.

Abortion in Scenario #2: The Fetus Is a Person and I Do Not Know That

In Case 2, where the fetus is a person and you don’t know that, abortion is manslaughter.

It’s like driving over a man-shaped overcoat in the street at night or shooting toxic chemicals into a building that you’re not sure is fully evacuated. You’re not sure there is a person there, but you’re not sure there isn’t either, and it just so happens that there is a person there, and you kill him. You cannot plead ignorance. True, you didn’t know there was a person there, but you didn’t know there wasn’t either, so your act was literally the height of irresponsibility. This is the act Roe allowed.

Abortion in Scenario #3: The Fetus Is Not a Person and I Do Not Know That

In Case 3, the fetus isn’t a person, but you don’t know that. So abortion is just as irresponsible as it is in the previous case.

You ran over the overcoat or fumigated the building without knowing that there were no persons there. You were lucky; there weren’t. But you didn’t care; you didn’t take care; you were just as irresponsible. You cannot legally be charged with manslaughter, since no man was slaughtered, but you can and should be charged with criminal negligence.

Abortion in Scenario #4: The Fetus Is Not a Person and I Know That

Only in Case 4 [you know that the fetus is not a person] is abortion a reasonable, permissible, and responsible choice.

But note: What makes Case 4 permissible is not merely the fact that the fetus is not a person but also your knowledge that it is not, your overcoming of skepticism. So skepticism counts not for abortion but against it. Only if you are not a skeptic, only if you are a dogmatist, only if you are certain that there is no person in the fetus, no man in the coat, or no person in the building, may you abort, drive, or fumigate.

AbortionOptions

Kreeft was analyzing the claim about fetal personhood and our knowledge of it.

For another approach, consider Professor J. Budziszewski’s analysis of the rationalizations for abortion in light of the widely held belief, “It is wrong to deliberately take innocent human life.”

In a 2005 Amicus Curiae brief, he writes:

If deep conscience really does hold within it a belief in the wrong of deliberately taking innocent human life, then consider where this leaves a woman who has an abortion. Parsing the rule against murder, there are only six possibilities of rationalization. She may tell herself (1) that her act is not deliberate, (2) that she is not taking anything, (3) that the unborn child is not innocent, (4) that it is not human, (5) that it is not alive, or (6) that what is wrong may be done.

For purposes of the present analysis, the problem is not that all six lines of justification are literally unthinkable. Indeed, all six are commonly entertained. The problem, rather, is that they are so implausible as to require a large dose of self-deception to be accepted. At the moment of decision, a woman may try desperately to talk herself into such the rightness of abortion, but it is impossible to believe it “all the way down.”

Here is his analysis of each rationalization:

Possibility 1: “It is wrong to deliberately take innocent human life.

But I didn’t mean for this to happen; I wasn’t trying to get pregnant.”

The reasoning here is that if something happens that I do not intend—in this case, pregnancy—then no matter what I do about it, I am not responsible. This line of thinking is incompatible with any coherent idea of personal responsibility.

It is like saying “I didn’t plan for my wife to become disabled, therefore I am not responsible for poisoning her.”

Possibility 2: “It is wrong to deliberately take innocent human life.

But I’m not taking life, the doctors are doing it. This is just something happening to me. I’m not involved.”

This time the underlying reasoning is that once I have made a decision, the results are out of my hands—even if I planned and intended them.

It is like saying, “I didn’t take my landlady’s life. If you want to blame someone for her death, blame the hit man I hired, not me.”

Possibility 3: “It is wrong to deliberately take innocent human life.

But the fetus isn’t innocent. It has invaded me, violated me, made me pregnant.”

The sole purpose of the uterus is to home and house the baby, who has no place else to go. Yet the baby is here regarded as akin to a trespasser or rapist. Although it is hard to imagine an actual pregnant woman taking this view, some abortion proponents consider it quite promising, perhaps because judges will sometimes believe things that ordinary women cannot. Thus, attorney Eileen McDonagh writes that the fetus is “objectively at fault for causing pregnancy.” It is “not innocent,” she says, “but instead aggressively intrudes on a woman’s body so massively that deadly force is justified to stop it.” Although “some might suggest that the solution to coercive pregnancy is simply for the woman to wait until the fetus is born,” she complains that “[t]his type of reasoning is akin to suggesting that a woman being raped should wait until the rape is over rather than stopping the rapist.” Yet even McDonagh admits, in an unintentional testimony to the enduring power of the deep structures of conscience, “[f]ew people are going to be comfortable with the idea.”

Possibility 4: “It is wrong to deliberately take innocent human life.

But it’s not human—it can’t feel, it can’t think, it can’t communicate—and how could it be human if it’s so small?”

Among pro-abortion philosophers, this rationalization is by far the most popular. The reasoning is that human personhood, who-ness, depends on criteria like sensitivity, intelligence, and self-awareness, and the fetus is just a what. Of course born people too can be more or less sensitive, more or less intelligent, more or less self-aware. Therefore, by this reasoning, born people too must be unequally endowed with personhood—some more, some less. The only question is whom we shall have as our masters. At the top may be those with the most exquisite feelings, the most complex thoughts, the keenest sense of self—it is not difficult to guess who these philosophers have in mind. At any rate, such arguments merely touch the surface of moral awareness. It is a matter of everyday observation that pregnant women do think of their fetuses as human persons, and the thought comes back to haunt those who have had abortions. They view themselves as having violated not only the prohibition of murder but also the duty to care for their babies.

Possibility 5: “It is wrong to deliberately take innocent human life.

But it’s not alive, not truly. It’s more like a blood clot. Or like my period just won’t come down.”

Such a thing was easier for a woman to believe before the discovery of the nature of conception. It takes a ferocious act of denial to go on believing it in an age of moving ultrasound pictures. Blood clots do not roll over and suck their thumbs.

Possibility 6: “It is wrong to deliberately take innocent human life.

But sometimes you have to do what’s wrong.”

Logically, this option is nonsense. That something must not be done is what it means for it to be wrong; to deny that wrong may not be done is to say that wrong is not wrong, or that what must not be done may be done. Psychologically, however, the option is tempting: “I just can’t have a baby right now. . . . My parents would have a fit. . . . My boyfriend would leave me.” The pattern of the temptation is ancient: “Let me do evil that good may result.” Some women who do what they themselves consciously regard as wrong try to square the act with perceived moral law by resolving to be sorry later. Whatever the ethical status of such a resolution, it is psychologically devastating. By making it, one literally calls down upon oneself the Furies of conscience. When a woman talks herself into a justifying script that she cannot really believe “all the way down,” then her surface moral beliefs, such as they are, are at war with her deep conscience. This produces disastrous consequences.

I find the logical of the analyses above rationally compelling.

But one objection to this line of reasoning is that if someone truly believes that the taking of an innocent life is murder, and if abortion is the taking of an innocent life and therefore murderous, then pro-lifers would logically have to advocate for incarcerating any woman who has an abortion.

There are at least two responses that can be made to this objection.

First, if it is to truly function as an argument, and not just a rhetorical rejoinder, then it does not touch on the actual issues of whether abortion is the unjust taking of an innocent human life. If anything, it is about the alleged inconsistency of those who hold to this belief. The primary claim itself, however, is not being disputed.

Second, it is not true that imprisoning women who have abortions would be the logical—or legal—result if elective abortion was made illegal again.

Clarke Forsythe, writing as senior counsel for Americans United for Life in 2010, explains in an article entitled “Why the States Did Not Prosecute Women for Abortion Before Roe v. Wade“:

The political claim—that women were or will be prosecuted or jailed under abortion laws—has been made so frequently by Planned Parenthood, NARAL, and NOW over the past 40 years that it has become an urban legend. It shows the astonishing power of contemporary media to make a complete falsehood into a truism.

For 30 years, abortion advocates have claimed—without any evidence and contrary to the well-documented practice of ALL 50 states—that women were jailed before Roe and would be jailed if Roe falls (or if state abortion prohibitions are reinstated).

Forsythe explains that this claim rests on two falsehoods:

First, the almost uniform state policy before Roe was that abortion laws targeted abortionists, not women.

Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second “victim” of abortion; state courts expressly called the woman a second “victim.” Abortionists were the exclusive target of the law.

Second, the myth that women will be jailed relies, however, on the myth that “overturning” Roe will result in the immediate re-criminalization of abortion.

If Roe was overturned today, abortion would be legal in at least 42-43 states tomorrow, and likely all 50 states, for the simple reason that nearly all of the state abortion prohibitions have been either repealed or are blocked by state versions of Roe adopted by state courts. The issue is entirely academic. The legislatures of the states would have to enact new abortion laws—and these would almost certainly continue the uniform state policy before Roe that abortion laws targeted abortionists and treated women as the second victim of abortion. There will be no prosecutions of abortionists unless the states pass new laws after Roe is overturned.

This political claim is not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.

Forsythe goes on to explain that the states targeted abortionists and treated women as a victim of the abortionist based on three policy judgments:

  1. the point of abortion law is effective enforcement against abortionists,
  2. the woman is the second victim of the abortionist, and
  3. prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

You can read the whole thing here.


 

Graphical images provided by Jr.canest.


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9 thoughts on “Trying to Think through the Logic of Abortion Rights”

  1. steve hays says:

    I don’t think the personhood of the baby is a necessary presupposition of the prolife argument:

    http://triablogue.blogspot.com/2016/10/power-personhood-and-pulling-plug.html

  2. steve hays says:

    “It is wrong to deliberately take innocent human life. But I didn’t mean for this to happen; I wasn’t trying to get pregnant.”

    To take a comparison, suppose, when you’re driving, you accidentally hit a cyclist. You didn’t intend to hit the cyclist. Does that mean you shouldn’t stop the car and seek medical aid for the injured cyclist?

    To take another example: suppose you’re a rich man. A desperately poor mother leaves her newborn on your doorstep. You hear it crying. It isn’t even your baby. But don’t you have a duty to care for it? It would be immoral for you to leave it on the doorstep to die of exposure. You have the wherewithal to care for it, even though you didn’t consent to that situation.

    1. Lori says:

      I am going to play devil’s advocate, because I think too often pro-lifers do not understand the pro-choice position. First, many pro-choicers do not believe that a fetus is equivalent to a born child, so they wouldn’t find either of your examples very compelling.

      And, even if they did think there was some compelling evidence that a fetus was morally-equivalent to a born person, it doesn’t necessarily follow that abortion should be illegal. The argument would more along the lines of, should you be legally obligated to donate your organs to a person who is going to die without them? Or, let’s make it even more personal: let’s say one of my children needed a kidney transplant or else they’d die, and I was the only donor. Now, we could certainly argue that I have a moral obligation to do so, and I think (although I’m not sure?) that we could even say that, absent a medical reason why I couldn’t, I’d be sinning if I refused to have the operation. But, legally, it’s my right to refuse. The state cannot compel me to donate my kidney to my child, even to save their life.

      Pro-choicers would apply the same logic. They’d say that a woman should not be legally obligated to donate her reproductive organs and other bodily systems to sustain the life of the unborn child any more than she’d be legally obligated to donate her organs to a born child. I’m certainly not saying this is air-tight logic, but that would be a more apt analogy.

  3. Philmonomer says:

    But one objection to this line of reasoning is that if someone truly believes that the taking of an innocent life is murder, and if abortion is the taking of an innocent life and therefore murderous, then pro-lifers would logically have to advocate for incarcerating any woman who has an abortion.

    There are at least two responses that can be made to this objection.

    These responses are terrible.

    The first is terrible because the point of the rejoinder is to show that no one thinks jailing women should happen, despite it being the logical result of the pro-life position. Thus, there is something wrong with the position, if you are unwilling to accept its logical outcome.

    The second is terrible because it says, essentially, laws were illogical in the past. Thus, they can be illogical in the future. Obviously, from a purely practical point of view, that’s true. Laws can be illogical again in the future. But saying “we can have illogical laws again” because we did before, does absolutely nothing to defeat the claim that, to be logically consistent, prolifers have to advocate for incarnation for any woman who has an abortion.

    1. Lori says:

      Laws weren’t illogical in the past, because abortion was not legally or even socially considered equivalent to murder. But, yes, it would be illogical now to say that abortion is murder but the individual who commissions the murder, and pays for it, is another victim. If I hire a hitman to kill somebody, the law will not treat me as a victim of that hitman, nor should it.

      Now, the logically consistent way for pro-lifers to handle this is to say that restorative justice should be applied in these cases. But, that would mean embracing restorative justice in general (for the abortion provider and the woman, and outside the realm of abortion), and I unfortunately do not see that happening.

      1. Philmonomer says:

        Laws weren’t illogical in the past, because abortion was not legally or even socially considered equivalent to murder.

        I agree. But the pro-life position is that we can go back to those laws–even if they were illogical under our understanding of human life.

        But, yes, it would be illogical now to say that abortion is murder but the individual who commissions the murder, and pays for it, is another victim. If I hire a hitman to kill somebody, the law will not treat me as a victim of that hitman, nor should it.

        We agree.

        Now, the logically consistent way for pro-lifers to handle this is to say that restorative justice should be applied in these cases.

        Two quick thoughts:

        1) Why apply restorative justice in some cases, and not others? Or are you advocating restorative justice for all crime?
        2) It seems that Restorative Justice necessarily needs a victim-offender encounter. How does one do that with a woman who takes RU-486 in the 4th week of her pregnancy?

  4. Lori says:

    I think a lot of these pieces are pretty cagey about the reality of pre-Roe abortion laws. First, women were seen as the “second victim” because, in the cases that were prosecuted, they often literally were. Most prosecutions involved cases where a woman died during the illegal abortion; in other cases, she was left permanently harmed. So, she was a victim not in some sense in which she lacked the moral agency to say no to the procedure or was duped into it by a cunning doctor, but because the illegal abortion actually did harm to her.

    Second, abortion was not considered murder under the law, or even close to it. The one case I could find that involved a doctor who was prosecuted for performing abortions that did NOT also involve the woman dying got 18 months for performing two abortions. Even given that criminal penalties for nearly all crimes have risen dramatically over the ensuing decades, 18 months for two abortion is not anywhere comparable to the penalties a person would have gotten for committing two murders.

    Before Roe, it made sense to prosecute the providers, because abortion was seen as a dangerous procedure that should not be done or provided. (Fetal life was not protected under the law at the time, either.) But, if you believe abortion is murder and that fetal life should be protected under the law the same as born persons are, then it simply makes no logical sense to say you should prosecute the abortion provider and not the woman seeking the abortion. That’s like saying you should prosecute the hitman but not the person who hired the hitman in the murder of a 3-month-old baby. That simply isn’t how the law works, nor should it be.

    If you want to go back to a pre-Roe framework, that’s fine, but it means not treating abortion like murder and not treating fetal life the same as born persons. You simply cannot impose a post-Roe view of abortion (that it is the murder of a life deserving of the same legal protections as a born baby) onto pre-Roe laws and say they make logical sense, because they just don’t. If you don’t think, if abortion was to be made illegal, that women should be incarcerated for it, then you either don’t think abortion is murder, or you think that murderers sometimes shouldn’t go to prison (which I’d actually be on board with, as a proponent of restorative justice, but I don’t think that’s the position being taken), or you think women lack moral agency. But if women lack moral agency, why prosecute them for any crimes every? It is an inconsistent and illogical position, and I suppose it’s been fine since there’s been no real chance of Roe being overturned, but certainly if it ever looks like a real possibility, the inconsistency of the position that abortion is murder but the person who commissions and pays for the murder should be considered a victim does need to be grappled with.

  5. Philmonomer says:

    The logic of the landmark abortion ruling Roe v. Wade was that ignorance about when human life begins entails that the government not impose restrictions upon abortion practice.

    This sentence is simply wrong. That wasn’t the logic of Roe v. Wade, at least as stated in the decision itself.

  6. Curt Day says:

    I am pro-life, but I can tell you the immediate problem with the article above. It doesn’t recognize that the abortion issue involves a collision of rights between the pregnant possible mother to be and the child. In addition, it does not address the conditions that led to the legalization of abortion. Here again, consideration of the pregnant possible mother to be is left out.

    Finally, the above argument fails to recognize the areas in which conservatives so easily discount and allow for the taking of human life. Those areas involve war, poverty, and destruction of the environment. For as long as we support the wrecking of the world through waging war and destroying the environment, as well as neglect to care for the poor, our arguments, regardless of how air-tight they are, will fall on deaf ears.

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Justin Taylor, PhD


Justin Taylor is executive vice president of book publishing and book publisher for Crossway and blogs at Between Two Worlds. You can follow him on Twitter.

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