The Least Safe Space
Recently at Harvard Law School, there have been many discussions about marginalized populations and the role of the law in protecting the defenseless and disadvantaged. Notably absent from this discussion is that there remains a class of human beings who are still excluded from the fundamental rights guaranteed to all persons by the United States Constitution.
I am referring, of course, to the unborn. Since 1973, there have been approximately 55 million abortions performed in the United States. In many states, including my home state of Colorado, abortion is legal through all nine months of pregnancy, up until the day of birth. In fact, the United States is less protective of unborn life than nearly every other country in the world — ranking alongside China, North Korea, and Vietnam.[1]
As we seek to form and shape the law in a direction that is increasingly protective of basic human rights, consider the case for consistently defending the right to life, before and after birth. For without the right to life, all other rights are meaningless.
The Basic Case for Life
The pro-life position can be encapsulated in a brief logical syllogism:[2]
The unborn entity — from the moment of conception — is a member of the human community.
It is prima facie morally wrong to kill any innocent member of that community.
Every successful abortion kills an innocent unborn entity, who is a full-fledged member of the human community.
Therefore, every successful abortion is prima facie morally wrong.
If the unborn are members of the human community, then intentionally killing an unborn entity through abortion is a grave moral wrong. That’s using an intrinsically valuable human life as a disposable means to an end. On the other hand, if the unborn are not members of the human family, abortion is no morally different from having a wisdom tooth removed. The only question that matters is whether the unborn are members of the human family.
That’s why slogans about “privacy” and “choice” miss the boat. Only a monster would advocate making it legal to kill two-year-olds in the name of choice. No reasonable individual could contend that, as long as the toddler-killing occurs in the privacy of one’s doctor’s office, a penumbra of Constitutional “rights” should protect the act. At this point you might say, “These comparisons are totally unfair. Killing a two-year-old is morally different from killing a fetus.” But that’s the whole debate, isn’t it? Are the unborn, like toddlers, members of the human family?
Although Justice Blackmun infamously stated that the Supreme Court “need not resolve the difficult question of when life begins,”[3] the question has long been long settled scientifically.[4] Biologically, individual members of the species homo sapiens begin their life-cycle at fertilization. Open practically any embryology textbook and you’ll find the same information: “[The zygote], formed by the union of an oocyte and a sperm, is the beginning of a new human being.”[5] This period “of fertilization represents the starting point in the life history, or ontogeny, of the individual.”[6] As Prof. Mathews-Roth of Harvard Medical School put it, “It is incorrect to say that biological data cannot be decisive . . . It is scientifically correct to say that an individual human life begins at conception.”[7]
Unlike skin cells or gametes, which are part of a larger human organism, the embryo is a whole organism of the species homo sapiens. From fertilization, this new entity acts in a coordinated manner to support continued healthy function of its constituent parts — a biological property which individual cells and recently deceased corpses do not share. The new organism possesses unique DNA that is distinct from the mother, and which determines the new entity’s genetic characteristics, such as sex, hair color, and eye color.
From the earliest stage of the human life-cycle, the unborn entity is biologically human. You were never a sperm or an ovum: those cells from other human organisms (your parents) died in the process of creating a new organism. On the other hand, you didn’t come from a zygote and later transform into a human; you once were a zygote, in the same way that you were once an infant or an adolescent, and you remained human through the entire process.
The Only Four Differences
Despite frequent dehumanizing and othering rhetoric leveled against the unborn, there are just four differences between us and unborn humans in the womb.[8] None of them form a principled basis upon which to deny the right to life.
Size. A person’s size and appearance shouldn’t determine their value or worth. Embryos are smaller than infants, just as children are smaller than adults. Just because men are often larger than women shouldn’t mean men deserve more rights. Do we really want to say that large people are “more human” than small people?
Level of Development. Because embryos and fetuses are at an earlier point in their life cycle, they are less developed than adults. But why should that matter? Toddlers are less developed than teenagers, but killing toddlers is illegal. Abortion is ageism. Some contend that self-awareness bestows human rights. But why should this kind of sentience be the criterion for ascribing moral value to life? It’s entirely arbitrary. Setting brain function as a standard for personhood implies that individuals with higher capacity for cognition have greater moral value. If this is so, why shouldn’t creatures with higher intellect or with more numerous and noble aims be considered more valuable than those with fewer long-term aims or less brain capacity? Newborn babies aren’t self-aware. Should it be legal to kill them? After all, newborn infants lack the immediate capacity to perform some mental functions that most fully-functioning adults can. (I’ve responded to some abortion activists who say yes.[9]) By this criterion, individuals suffering from severe Alzheimer’s disease or under general anesthesia, whose caudate nuclei are incapacitated or greatly impaired, could no longer be considered moral persons. Even people who are sleeping lack present capacity for self-awareness. We know, however, that the patient in a coma or under general anesthesia retains her human value despite her temporary lack of sentience. Her human personness must cohere in some other underlying nature, a substance unrelated to her present capacity or incapacity to exercise particular functions.
Environment. The unborn child and the newborn infant are only separated by a few inches. The short journey down the birth canal does not magically transform that entity from non-human to human. The event of birth cannot impart humanity upon a non-human entity.
Degree of Dependence. The unborn child’s dependence upon another human being doesn’t make her any less of a person. Children, especially newborns, are particularly dependent on adults and can hardly survive without them. Human value cannot vary based on the degree of that dependence. If it did, those who depend on insulin or kidney medication would have less value than the rest of us. If dependence is the criterion for human value, would conjoined twins who share vital systems possess a right to life?
If any of these standards were the criterion for legal and moral personhood, it would be impossible to claim that “all men are created equal,” since each individual’s value would vary to the degree they fulfill certain functions. Living human individuals must possess value because of what they are, not because of some arbitrary attribute that comes in varying degrees and which may be gained or lost during their lifetimes.[10]
Functionalist arguments attempting to distinguish between the unborn and the rest of us fail to establish a principled criteria for doing so. Humans must possess an essential nature that is intrinsically valuable throughout their life cycle. The biological reality of being a living human organism necessarily entails that the organism is a human being with moral worth. All human beings are persons endowed with dignity and rights based on what they are, not what they can do.
Responding to Abortion Advocates’ Arguments
Abortion is often defended on the basis of gender equality or bodily autonomy. Both arguments fail to justify the intentional killing of an innocent member of the human family.
Abortion advocates argue that to be on a level playing field with men, women must have control of their reproductive systems, which are used by the patriarchy to keep women in the home and under male domination. Yet men and women are equal by nature. To presume that a woman’s reproductive system makes her inherently inferior to men is an implicit misogyny against women’s equality. Women don’t need abortion to fix some natural “handicap.”
Furthermore, using the notion of equality for one class of persons to undermine equality for another class of persons is incredibly perverse. Legalized discrimination against the unborn undermines basic human equality. We would recoil from the argument that, in order to achieve equality, parents must be able to kill their toddlers who would otherwise prevent them from leading lives of self-determination. In other words, the equality argument assumes from the outset that the unborn are not human beings.
Some abortion advocates accept that the unborn are human beings, yet contend that bodily autonomy justifies the killing of an innocent person in some cases (including abortion). Judith Jarvis Thomson presented the most famous argument of this form through a thought experiment of the killing of an innocent person she believes justified.[11] Imagine a prominent violinist who will imminently die without a kidney transplant from a matching donor. Suppose that, to keep the violinist alive, a woman was kidnapped and her body connected to the violinist. Thomson concludes that, in that situation, disconnecting herself from the violinist would be justified based on bodily autonomy, and further says that this situation is analogous to abortion in cases of rape. She concludes that disconnecting could be justified even if the person were not kidnapped, but were confused, drunk, or even volunteered but changed her mind.
Though the donor may be justified in disconnecting from the violinist,[12] the analogy to abortion fails in several respects. The distance between the actors frames the moral intuition. The stranger has no responsibility to care for the violinist, but a mother—and a father!—owe special responsibilities to their children based on their relationship. The law punishes child neglect and imposes duties on parents irrespective of their consent because it recognizes the defenselessness of children. Even if a stranger could abandon the violinist, parents can never abandon their duties to their toddlers when doing so results in the child’s death, notwithstanding a change of heart and the large burden caring for children can be. Accepting the personhood premise, there is no morally significant difference between a fetus and a toddler, and this parental duty attaches at fertilization.
Moreover, an unborn baby is not an intruder, but is in its proper place in the design of the reproductive system. Unlike passively “disconnecting” one’s body from the violinist, abortion entails violently tearing an unborn human apart. It’s only “withholding support” in the sense that choking someone to death is withholding oxygen. The violinist is further dis-analogous since, unlike one who has been unnaturally connected to the woman’s body, the baby is not an intruder, but rather in its proper place according to the biological design of the reproductive system.
Finally, the autonomy argument has disturbing implications: if a mother may abort her child as an exercise of autonomy, may she take thalidomide (a sedative for morning sickness which causes birth defects) for the purpose of deforming and disabling her child? If one believes mothers have a duty not to do that, how can bodily autonomy justify intentionally killing the unborn child, but not intentionally disfiguring that child? Bodily autonomy is not absolute.
Erring on the Side of Caution
Setting aside for a moment the overwhelming scientific and philosophical evidence that the unborn are members of the human family and adopting the perspective of a system designer, what legal approach should be taken on the issue of abortion? Let’s assume we don’t know whether the unborn are human beings or not. To which side should the law err? According to the philosopher Peter Kreeft, there are only four possible scenarios:[13]
Justice Blackmun’s notion of “neutrality” on the question of when life begins is impossible: the law either protects the unborn or it permits killing them. If it permits killing the unborn, then the courts have established a public policy that the unborn do not deserve the same basic protections owed to other human beings.
The Court’s decision to treat the unborn as if they were not human beings in the face of uncertainty is analogous to the conduct of a hunter who shoots into a rustling bush without knowing whether he shoots a turkey or his companion.[14] To kill a living organism without knowing whether that being is a human entity with a right to life is willful and reckless disregard for the value of human life. Admitting its ignorance on this important question, the Court’s only responsible reaction would have been to err on the side of life.
On the other hand, all of the biological and philosophical evidence indicates that the unborn are human beings deserving the same right to life that you and I enjoy. The only reason we pretend that we don’t know when life begins or whether the unborn are “persons in the full sense” is to justify abortion. Our consciences know better.
“One’s right to life . . . depend[s] on the outcome of no elections.”[15] Nor should it depend on the outcome of Supreme Court decisions. As long as the Court continues to interpret the Constitution so as to perpetuate a discriminatory caste system of separate and unequal for unborn human beings, there can be no equal protection under the law.
Josh Craddock is a 1L and a member of Harvard Law Students for Life. Harvard Law Students for Life can be reached at hlawstudentsforlife@gmail.com.
[1] Angelina Baglini, J.D, “Gestational Limits on Abortion in the United States Compared to International Norms,” Charlotte Lozier Institute, American Reports Series 6 (February 2014). https://perma.cc/9JHR-WPUR
[2] Adapted from Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice (New York: Cambridge University Press, 2007).
[3] Roe v. Wade, 410 U.S. 113, 159 (1973), holding modified by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992).
[4] Scientifically and medically, the question had been settled for over a century by the time Roe was decided. The American Medical Association’s 1859 report on abortion considered the human being in utero a person and called for protection of the “independent and actual existence of the child before birth, as a living being.” 12 Transactions of the Am. Med. Assn. 73–77 (1859). They decried the “unwarrantable destruction of human life” both before and after quickening and urged state legislatures to reform their abortion statutes. Id.
[5] Keith L. Moore, Before We Are Born: Essentials of Embryology, 7th edition. (Philadelphia: Saunders, 2008), 2.
[6] Bruce M. Carlson, Patten’s Foundations of Embryology, 6th edition. (New York: McGraw-Hill, 1996), 3.
[7] Subcommittee on Separation of Powers to Senate Judiciary Committee S-158, Report, 97th Congress, 1st Session, 1981.
[8] See Scott Klusendorf, Stand for Life: A Student’s Guide for Making the Case and Saving Lives (Hendrickson, 2012), 9–10.
[9] See Joshua J. Craddock, “Personhood and after-birth abortion.” Human Life Review 40 (Winter 2014), 97–101. https://perma.cc/GW22-NDD8
[10] Abraham Lincoln contended against similar arguments, observing that common justifications of slavery on the basis of skin color served to justify enslaving whites too. See 1 Abraham Lincoln: Complete Works (ed. John Hay, 1894), 179 (“You say ‘A’ is white and ‘B’ is black. It is color, then: the lighter having the right to enslave the darker? Take care. By this rule, you are a slave to the first man you meet with a fairer skin than your own. You do not mean color exactly—You mean the whites are intellectually the superiors of the blacks, and therefore have the right to enslave them? Take care again: By this rule you are to be a slave to the first man you meet with an intellect superior to your own.”).
[11] Judith Jarvis Thompson, “A Defense of Abortion,” Philosophy & Public Affairs, Vol. 1, no. 1 (Fall 1971).
[12] One might resist this premise. Interestingly, a utilitarian of the sort that supports the quality of life view applying the least harm principle would likely be unable to ratify this intuition.
[13] Adapted from Peter Kreeft, “Human Personhood Begins at Conception,” Medical Ethics Policy Monograph, Castello Institute (1990).
[14] See, e.g., State v. Desoto, 6 So. 3d 141, 148 (La. 2009) (“One of the principle [sic] rules of safety in hunting is to ‘identify your target, make sure you know what you’re shooting at and what’s beyond that target. . . .A safe hunter never shoots at a flash of color, a sound, or a shape in a tree.’”); Minn. Stat. Ann. § 299F.83 (“Whoever, acting with gross disregard for human life or property, negligently causes an explosive or blasting agent to be discharged may be sentenced to imprisonment for not more than ten years or payment of a fine of not more than $20,000, or both.”).
[15] West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).