What makes us human? This question may strike you as simplistic, after all, our membership in the species Homo sapiens is the obvious answer, or you may interpret the question more abstractly to mean: What is the essence of being human? It is the latter sense of this question that is of particular importance to us as physicians-in-training. Now, I am sure you are wondering what this seemingly esoteric question has to do with anything practical.
Well, this question is, in fact, fiercely contested in the American culture wars. To be sure, advances in medicine and science have refined our answer to the biological question of human identity. Yet, deciding what criterion should be used distinguish an entity as a full-fledged member of the human community–that is to say, an individual who is just as much a bearer of rights as people like you and me–remains intensely controversial. Nonetheless, it is a question that demands an answer from society by virtue of our collective responsibility to uphold the principles of human dignity and equality.
The greatest incentive to determine what makes us fully human has actually been brought about by innovations in medicine and science, such as the creation of patient-specific embryonic stem cells through cloning. Moreover, one of the most common surgical procedures for women also figures prominently in this debate. By age 45, approximately one-third of women are expected to have had an abortion. The Guttmacher Institute reports that nearly 50 million legal abortions occurred from 1973 through 2008. And on the whole, the bioethical concerns raised by abortion-on-demand (hereafter “abortion” for short), embryonic stem cell research and human cloning are in relation to when an entity, on the continuum of human development, should be considered fully human.
Unfortunately, much of the public discussion on what makes an entity fully human has involved more name-calling and demagoguery than it has the facts of science and sound reason. I am sure we all agree–as members of a profession entrusted with interfacing between science and society–that we ought to deliberate over these divisive ethical questions raised by scientific advance and discuss them with the utmost integrity and civility. The culture warring around us is characterized by deception, guilt by association, insult, caricature and demonization of opponents. These utterly unhelpful tactics have bred savage hostilities in our nation. So, as physicians-in-training, we have the responsibility to rise above the fray and take part in genuine debate.
Before I go any further, let me be clear about my purpose in writing this article. My goal is to encourage reflection and evaluation of the moral question of abortion. Often when abortion is debated, pro-choice and pro-life advocates argue their case by referencing studies and statistics relevant to the practical impact of the right to an abortion on women’s lives. Now, these are certainly important points to bring up in policy discussions. However, that is not the topic here, because it seems to me that the moral question should be dealt with before moving on to debate policy.
Returning to the matter at hand–undoubtedly, most, if not all of us, begin medical school with considerable exposure to the political debate on abortion. Additionally, in our training we become familiar with human embryology. Clearly, these are important topics within the abortion controversy. However, we ought to also be conversant with the very best arguments for and against the moral permissibility of abortion. If we want to be conscientious advocates for patients then it is important to allow our personal opinions about abortion to be tested. If our view is sound then it should be able to withstand the best challenges other views have to offer. If our view on this issue is wrong then we have the professional duty–and we ought to have the intellectual integrity–to change.
This year has featured some notable events in the U.S. abortion controversy. In January, abortion-rights advocates celebrated the 40th anniversary of Roe v. Wade. Then May brought two news items that have revived questions about our nation’s medico-legal inconsistencies. To begin with, in Cleveland, Ohio 3 women were rescued after 10 years of allegedly enduring captivity, rape and other abuses at the hands of Ariel Castro. Castro is now indicted on a number of charges, including one count of aggravated murder for allegedly terminating a captive’s pregnancy.
“Regardless of their intent, laws equating pregnancy termination with murder are being used against pregnant women not for them,” writes Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women. Paltrow decries “fetal murder laws,” such as the one being used to charge Castro with murder, as ill-contrived. If the unborn are not fully human then these laws are poorly written indeed–and can even be counterproductive to protecting women. Although, it may be that such laws are a move towards a proper recognition of the unborn as a rights bearing human being.
After the Cleveland rescue came the conviction of Philadelphia physician Kermit Gosnell on three counts of first-degree murder. He was sentenced to life in prison for the deaths of three infants, who were all born in the course of abortion procedures. But it seems that Dr. Gosnell’s actual crime was not essentially the killing of a human being. Rather, on each occasion, it was the timing of the killing and the environment in which the act occurred that has caused him the greatest legal trouble. In choosing to perform an abortion beyond 24 weeks of gestational age, Dr. Gosnell violated Pennsylvania state law. However, on all three occasions, if he had killed the infant before he or she had traveled down the birth canal then he would not have faced any greater penalty than someone who had stolen a car. And if he had killed his victims a bit earlier in their development while in utero then payment for his services would have been legitimately owed. When we reflect on these circumstances we can appreciate the mixed messages our society sends on the moral and legal status of those in the dawn of life.
So, why does the unborn mysteriously become a valuable human being after 24 weeks of gestation or at birth, but not before? And why do those in our profession condemn an extrauterine killing with a pair of scissors as a horrific crime with one hand, while with the other they accept payment for a killing in utero with digoxin? Nationwide Children’s Hospital in Columbus, Ohio reports:
A few years ago, the survival rate for babies born at 23 weeks was 10 percent. Thanks in large part to research efforts aimed at improving and standardizing care of extremely premature infants, more premature babies at Nationwide Children’s are thriving. Today, the survival rate at Nationwide Children’s for babies born at 23 weeks is 63 percent.
Why do we go to such great lengths to preserve a 23-week-old life in one instance, but in other circumstances we actively destroy a 23-week-old upon request? On the face of it, there does seem to be a double standard held by those who wish to decry infanticide while endorsing feticide and embryocide.
The Common Ground
In order to reason together about the ethics of abortion we will need a few reference points–in other words, we need to agree on at least a few things. I take it that we all agree on the value of science and reason, since we are pursuing a career in medicine. But what will be the shared ethical standards that guide us to the solution? Of course, a diversity of opinions exists about what ethical principles ought to be foundational. Nevertheless, we likely agree on at least some of them, namely, social justice and the values of medical ethics.
We are part of a profession that naturally advocates for social justice. Social justice includes the promotion of justice in the health care system and working to eliminate discrimination in health care. However, it is also a broader principle. So, what does it look like to promote social justice? In his book “Generous Justice,” Timothy Keller, founding pastor of Redeemer Presbyterian Church in Manhattan, defines “doing justice” as defending members of society with the least economic and social power. Keller writes that to “do justice” is to have concern for the most vulnerable, poor and marginalized members of our society and make personal sacrifices to serve their interests, needs and cause. The struggle for social justice certainly is a noble enterprise. And both sides of the abortion controversy claim the other is promoting a social injustice. So, in order to avoid being part of an unjust cause, we have a duty to understand the very best arguments both sides have to offer for their contention.
Medical ethics also provides us with a shared framework of ideals. We all acknowledge the virtue of certain basic ethical principles, specifically, beneficence (doing what is good or beneficial for the patient), autonomy (the patient’s right to self-determination), justice (fairness in the delivery of health care), nonmaleficence (avoidance of infliction of intentional harm), and fidelity (truthfulness and faithfulness in delivering health care). At the very least we have these values in mind when deciding if we ought to support or engage in the practice of abortion. To be sure, in the case of abortion some of these standards appear to be in conflict, because of the unique nature of the relationship between mother and unborn.
Fortunately, there is good reason to think we should be able to truly answer the question of whether or not abortion is morally permissible. David Boonin, a professor of philosophy at the University of Colorado, recognizes this is an issue over which reasonable people will continue to disagree. Even so, he sees the moral question of abortion as resolvable. Boonin writes that defenders of abortion and defenders of the unborn agree on some basic claims, “such as the claim that killing people like you and me is wrong and the claim that the zygotes that are formed by the fusion of a sperm and an egg at conception eventually develop into people like you and me.” Boonin identifies this common ground as a sufficient basis for a debate that can be settled rationally. Thus, since we share this common ground as well as the above-mentioned principles, it seems we have a sufficient basis on which to proceed.
Order in the Court
The U.S. Supreme Court in Roe and its companion decision, Doe v. Bolton, has effectively established the right for a woman to have an induced abortion for any reason up to the time of birth. Yet, some states have imposed restrictions on abortion. So, it is not necessarily a readily accessible medical service for many women. A January 2013 cover of TIME magazine declared: “Abortion-rights activists won an epic victory in Roe v. Wade. They’ve been losing ever since.” In the cover story article, journalist Kate Pickert draws attention to a discrepancy between the legality and accessibility of abortion services. “While the right to have an abortion is federal law, exactly who can access the service and under what circumstances is the purview of states,” Pickert writes. “And at the state level, abortion-rights activists are unequivocally losing.”
“Despite the formal existence of the right to a safe and legal abortion, for many women abortion access is regulated so that it’s almost, or entirely, out of reach,” says the American Civil Liberties Union. “And the struggle is getting worse.”
Medical Students for Choice, a non-profit dedicated to ensuring reproductive health care choices for women, warns:
The United States and Canada face a dangerous shortage of trained abortion providers. In 2000, 87% of the counties in the United States had no provider. The “graying” of current providers (57% of whom are over the age of 50), violence that targets physicians, and restrictive legislation threaten to drive these numbers even lower. Further, medical schools are simply not addressing the topic; most physicians graduate with little more than circumstantial knowledge of abortion.
Supreme Court decisions have indeed favored abortion-rights advocates. Nevertheless, these respected pro-choice organizations see obstacles–with more on the horizon–for many women who want to have an abortion.
“The decision whether to have an abortion should be made by a woman, with her doctor and her loved ones,” says NARAL Pro-Choice America, an organization dedicated to reproductive-rights advocacy. “Politicians should play no part in this decision.”
If politicians should play no part in decisions about abortion then the right to an abortion is not granted by our government. Where did such a right come from? These sorts of rights are inalienable and independent of government. They are natural rights and, therefore, cannot be taken away. A natural right, in the words of political scientist Hadley Arkes, “existed even before the advent of the government, and it would be there even when the government broke down.” Government is charged with the responsibility to protect natural rights, not to regulate them.
If the right to an abortion is a natural right then it is unjust for states or anyone else to restrict a woman’s access to it. In this case, attempts to overturn Roe, defund Planned Parenthood’s provision of abortion services, and make abortion clinics infeasible to operate based on legal technicalities–however well intentioned such attempts may be–are simply efforts to violate a woman’s natural right.
There is a legacy of natural rights advocacy in the U.S. For instance, key figures in the abolition of slavery and the civil rights movement advocated for natural rights. In his “Letter from a Birmingham Jail,” Dr. Martin Luther King Jr. appealed to natural rights to reveal the unjust nature of segregation laws. Moreover, Dr. King recognized that natural rights flow from the natural (or moral) law. “How does one determine whether a law is just or unjust?” Dr. King wrote. “A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.”
In his struggle to abolish slavery in the U.S., Abraham Lincoln invoked natural law to establish the rights of all members of the human family. Lincoln distinguished positive law–the law established by the government, which permitted slavery in the antebellum U.S.–from natural law. Moreover, Lincoln understood the rights asserted in the Declaration of Independence as natural rights, not mere positive rights. In a debate with Judge Stephen Douglas, during his lost bid for the U.S. Senate in 1858, Lincoln argued that these rights were extended not to a particular race, but to all of humanity. “I hold that … there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence,–the right to life, liberty, and the pursuit of happiness,” Lincoln declared. “I hold that he is as much entitled to these as the white man.”
Now, if abortion is a natural right then that entails it is morally permissible. However, abortion is not prima facie a natural right, such as the right to life, liberty, freedom of conscience and equality before the law. So, before we accept abortion as a natural right–it may only be a positive right–, we need to consider if it is morally permissible in the first place. If we just assume abortion is a natural right then we only beg the question in favor of the abortion-choice perspective.
It is clear that if abortion-rights advocates are correct and women have a natural right to choose an abortion then we ought to be active participants in advancing the pro-choice cause, especially given our chosen profession. Conversely, if abortion is morally wrong, as prolifers claim, then it ought to be prohibited even though it presently is not. Put differently, simply because the Supreme Court decides a question for our country legally does nothing to show they made the right decision. All we need to disillusion ourselves about the moral discernment of the Court is to open up a history book and read about the Dred Scott Decision. Among other things, the Court’s decision in Dred Scott v. Sandford abetted antebellum proslavery activists in promoting their vision of white supremacy. One of these activists was a New York physician by the name of John H. Van Evrie. In his effort to advance racism Dr. Van Evrie wrote the preface for a pamphlet edition of the Dred Scott decision prior to the Civil War. His words are a reminder of the moral bankruptcy of this decision made by the Court:
The doctrine of 1776, that all (white) men “are created free and equal,” is universally accepted … the status of the dominant race, is thus defined and fixed for ever. But there have been doubts and uncertainties in regard to the negro…. This confusion is now at an end, and the Supreme Court, in the Dred Scott decision, has defined the relations, and fixed the status of the subordinate race forever.
As I’m sure we can all agree–given our nation’s moral improvement on the issue of racism–Supreme Court justices should not be looked to as the ultimate arbitrators on ethics. Justice Harry Blackmun, the author of the Court’s opinion in Roe v. Wade, established the right to an abortion as a species of the right to privacy. To do this Blackmun argued, through dubious reasoning, that the unborn is not a Fourteenth Amendment person. Should we have faith that the Court made the right decision? Or should we carefully examine the reasons why intelligent people disagree about the moral status of the unborn and try to arrive at a sound conclusion ourselves?
Pro-Choice and Pro-Life Concerns
To better understand the abortion debate we should consider the principal concerns of each side. Pro-choice advocates see abortion as an inalienable part of a woman’s reproductive freedom. “The ability to decide whether or not to carry a pregnancy to term is essential to women’s equality, autonomy, and dignity, with implications for every aspect of her life – her educational aspirations, career goals, economic status, and, more broadly, her ability to live the life she planned,” says the ACLU.
“Pro-life advocates contend that elective abortion unjustly takes the life of a defenseless human being,” writes Scott Klusendorf, president of the Life Training Institute. “Is the unborn a member of the human family? If so, killing him or her to benefit others is a serious moral wrong. It treats the distinct human being, with his or her own inherent moral worth, as nothing more than a disposable instrument.”
Both prochoicers and prolifers have sobering concerns. It would be utterly wrong to deprive women of any natural right. Likewise, it would be unjust to deny the unborn theirs. Neither possibility should be taken lightly. Reflecting on what is at stake helps us appreciate why this dispute stirs up great passion. Concern for those who are wronged is natural and right. So, passion is not unwarranted on this issue. Desiring justice and fairness for the downtrodden is surely the sign of a healthy conscience. We ought to defend the rights of those who are discriminated against. But who is treated unfairly in this case? I doubt any of us want to end up on the wrong side of history as Dr. Van Evrie did. Therefore, in order to determine what is in accord with social justice, we will have to first answer a few basic questions.
The Fundamental Questions
Abortion, with few exceptions, results in the death of the unborn. Before we kill anything, it seems sensible to first identify what it is we intend to kill. Once we identify exactly what it is we intend to kill then we ought to figure out whether or not we have the proper justification to kill it. To that end, Klusendorf has clarified the debate for us by identifying two fundamental questions:
If we can adequately answer these two questions then we should be able to conclude whether or not abortion is morally permissible. In a 2005 letter to the editor of the New York Times, the influential Princeton University bioethicist Peter Singer hones in on the truly disputed question:
Even the earliest embryo conceived of human parents is alive and a member of Homo sapiens, and that is enough, in the eyes of many, to make it a living human being. The crucial moral question is not when human life begins, but when human life reaches the point at which it merits protection. It is to that question that the significance of consciousness and viability … should be addressed. Unless we separate these two questions – when does life begin, and when does it merit protection? – we are unlikely to achieve any clarity about the moral status of embryos.
Singer, an abortion-choice advocate, proposes we make a significant distinction, namely, separate those human beings with value from those without. He asks us to discern when the unborn gains those properties that allow her to be a valuable member of the human family. To this end, we must locate intrinsic value in her acquired capacities, such as consciousness and viability, instead of grounding it in her human nature.
“Humans have value simply because they are human, not because of some acquired property they may gain or lose during their lifetime,” Kulsendorf writes. “If you deny this, it’s difficult to say why objective human rights apply to anyone.”
The respective contentions of Singer and Klusendorf are illustrative of the state of the philosophical debate. The true dispute is over the second question. So, our investigation must turn to questions of human value and equality. What makes human beings valuable? Do all or only some have value and rights? However, before jumping to the second question, answering the first will help clear up any confusion there may be about the biological status of the unborn.
The biological status of the unborn is well established. Those unfamiliar with human embryology may mistakenly think it is controversial to claim the unborn is a living human being. However, that is what the science of embryology shows to be true. Even still, for the sake of completeness, we should look at why questions about the human identity of the unborn are effectively settled. In his book “Practical Ethics,” Singer writes:
It is possible to give ‘human being’ a precise meaning. We can use it as equivalent to ‘member of the species Homo sapiens’. Whether a being is a member of a given species is something that can be determined scientifically, by an examination of the nature of the chromosomes in the cells of living organisms. In this sense there is no doubt that from the first moments of its existence an embryo conceived from human sperm and eggs is a human being; and the same is true of the most profoundly and irreparably intellectually disabled human being, even of an infant who is born anencephalic – that is, an infant that, as a result of a defect in the formation of the neural tube, has no brain.
As Singer points out, it is within the purview of science to determine what sort of entity the unborn is. Therefore, we turn to the science of embryology to find the answer.
Renee Reijo Pera seems well qualified to speak on this subject. She is a professor of obstetrics and gynecology at Stanford University School of Medicine and director of the Stanford University Center for Human Embryonic Stem Cell Research and Education. “I was once asked to talk at a conference in New York … and the subject was what makes us human,” recalled Reijo Pera, during a 2010 “ideacity” talk in Toronto. “And my answer wasn’t consciences and it wasn’t love and it wasn’t spirituality, but it just is. On day one, a human sperm and a human egg come together and we have a human embryo.”
Standard medical texts substantiate the claim that the unborn is a living human being. According to Langman’s Medical Embryology: “Development begins with fertilization, the process by which the male gamete, the sperm, and the female gamete, the oocyte, unite to give rise to a zygote.”
“A zygote is the beginning of a new human being,” write Keith L. Moore and T. V. N. Persaud. “Human development begins at fertilization, the process during which a male gamete or sperm (spermatozoon) unites with a female gamete or oocyte (ovum) to form a single cell – a zygote. This highly specialized, totipotent cell marked the beginning of each of us as a unique individual.”
The science of embryology reveals the unborn is a living, distinct, and whole human being. Let us unpack that statement. First, the unborn is alive. This point seems indisputable. From the earliest stages of development the unborn exhibits those attributes characteristic of life, such as growth, irritability, cellular metabolism and cellular reproduction. Nevertheless, a debate does persist over when the exact moment is that human life begins. Maureen Condic, an associate professor of neurobiology and anatomy at the University of Utah, has written on this very question. “A new cell, the human zygote, comes into existence at the moment of sperm-egg fusion, an event that occurs in less than a second,” Condic writes. Some might argue that syngamy (the breakdown of nuclear membranes in preparation for cell division) is the point at which the zygote is formed and life begins, but Condic makes a compelling case for why the moment of sperm-egg fusion should be regarded as the beginning of human life. In any event, it seems incontrovertible that, at the latest, syngamy is a point at which a new human being exists. Second, the unborn is a distinct organism. Sperm and egg cease to exist with sperm-egg fusion by giving rise to a new organism, the zygote. Consequently, the zygote is distinct from any parental cell. “There is a clear difference in kind,” writes Robert George, the McCormick Professor of Jurisprudence at Princeton University and a former member of the President’s Council on Bioethics. And third, the unborn is a whole organism. “From conception onward, the human embryo is fully programmed, and has the active disposition, to develop himself or herself to the next mature stage of a human being,” write George and bioethicist Patrick Lee. Thus, it is part of the edifice of human knowledge that from the earliest stages of development the unborn is a living, distinct, and whole human being.
Now is there any morally significant difference between the embryo you once were and the adult you are today? Philosopher Stephen Schwarz argues there is none. In his book “The Moral Question of Abortion,” Schwarz outlines four features–size, level of development, environment, and degree of dependency–as the main differences between a born human being and one in utero. According to Schwarz these differences are not relevant in a way that we can say that you had no rights as an embryo, but you do have rights today. An embryo is smaller than an adult. This doesn’t seem morally relevant, because Gabby Douglas is not less deserving of human rights than Michael Phelps. An embryo is less developed than an adult. Likewise, a 3-year-old girl is less developed than a 33-year-old woman yet the 3-year-old is not less deserving of human rights. An embryo exists in a unique environment, but where you are doesn’t change who you are. If a 24-week old fetus is a morally significant human being after a journey down the birth canal then it seems rational to think she was a morally significant human being prior to the journey. An embryo is dependent on her mother for survival. But if our degree of dependency determines our value as human beings then insulin-dependent diabetics or quadriplegics would be less deserving of human rights than those who are relatively less dependent on medicine or care providers to live. Clearly such an idea is morally abhorrent.
Nonetheless, sophisticated abortion-choice advocates typically argue that our level of development should be used to distinguish morally significant human beings from subordinate ones. They contend that one’s value as a human being is located in one’s present capacity to exhibit a certain property or function that is not present in the early stages of human development. However, there is no consensus on what ought to be considered a value-giving property.
If you lose your leg then are you still you? You are not less you than you were before you lost your leg–that is, unless you are purely the sum total of a collection of parts. In that case, during the course of your life (as cells die and are replaced) you substantially change your identity. If you have ever seen the film “Regarding Henry” then you might remember how the lawyer, Henry Turner (played by Harrison Ford), survives a shooting. However, as a result of the shooting he ends up in a coma. When Henry wakes up he is diagnosed with retrograde amnesia. He remembers nothing from his past. His job, wife, daughter and even his own name are unknown to him. He has to relearn how to do even the most basic daily functions. Does Henry retain his identity even though he has lost the immediate capacity to exercise a particular function? Or does his memory loss mean that he no longer is Henry Turner? Believing you maintain your identity (whether you undergo a kidney transplant or suffer from amnesia) may seem to be a simple and intuitive idea, but–if it is true–it says something significant about who we are as human beings. Something that retains its identity despite a change to a particular part or function is known as a substance thing. Something that does not retain its identity with such change is a property thing. Klusendorf explains the difference between the two concepts:
Substances are living organisms that maintain their identities through time, while property things, such as cars and machinery, do not. What moves a puppy to maturity or a fetus to an adult is not an external collection of parts, but an internal, defining nature or essence. As a substance develops, it does not become more of its kind but matures according to its kind. It remains what it is from the moment it begins to exist. Consequently, a substance functions in light of what it is and maintains its identity even if its ultimate capacities are never realized due to disability or injury. A dog that never develops his capacity to bark is still a dog by nature.
In sharp contrast, a property thing, like my car, is nothing more than the sum total of its parts. Change the motor or replace a tire, and you technically have a different vehicle from the one that rolled off the assembly line. There is no internal nature (or essence) that orders its development and grounds its identity through change.
By and large the issue that divides sophisticated pro-life and pro-choice advocates today is the foundation for human value, namely, whether our intrinsic value is grounded in our human nature (or substance) or in some acquired capacity. Each view has profound implications for our understanding of human dignity and equality.
In a statement on a cloning report, George makes a helpful distinction between two types of capacities: a natural capacity and an immediate capacity. George explains that both an embryo and a 6-week-old “lacks the immediately exercisable capacity to perform characteristically human mental functions.” However, both embryo and infant possess the root or natural capacity for self-consciousness. In other words, if allowed to develop, their immature nervous systems will, in time, produce characteristically human mental functions. According to George, having a natural versus an immediately exercisable capacity is nothing more than “a difference between stages along a continuum.”
Locating human value in an immediately exercisable capacity affects our understanding of who we are as human beings. It also entails significant implications, even for the born. For instance, infants lack the immediately exercisable capacity for abstract thinking, which only begins to develop in early adolescence. Do we therefore conclude that 3-year-olds are less valuable persons than adolescents? George maintains that the immediately exercisable capacity of a certain function “is only the development of an underlying potentiality that the human being possesses simply by virtue of the kind of entity it is.” Further, George and Lee present us with a point that demands our attention: If our value and rights are derived from accidental properties that we each have in varying degrees then it follows each of us has value and rights in varying degrees. Hence, if we locate human value in an immediately exercisable capacity, a fundamental ethical principle is abandoned. “The proposition that all human beings are created equal would be relegated to the status of a superstition,” writes George.
Do we have intrinsic value by virtue of the kind of thing we are? Or does an immediately exercisable capacity, that is to say, an accidental property, make us valuable? Francis Beckwith, a professor of philosophy at Baylor University, further assesses the implications of our value being rooted in the latter:
If one’s value is conditioned on certain accidental properties then the human equality presupposed by our legal institutions and our form of government … is a fiction. In that case, there is no principled basis for rejecting the notion that human rights ought to be distributed to individuals on the basis of native intellectual abilities or other value-giving properties, such as rationality and self-awareness. One can only reject this notion by affirming that human beings are intrinsically valuable because they possess a particular nature from the moment they come into existence. That is to say, what a human being is, and not what she does, makes her a subject of rights.
The Universal Declaration of Human Rights adopted by the United Nations defends the equal and intrinsic value of all human beings. Article 3 says, “Everyone has the right to life, liberty and security of person.” The Declaration’s drafters recognized that humankind’s respect for all members of the human family is of paramount importance. “Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” the Preamble says. Moreover, humanism promotes respect for human dignity and equality. The American Humanist Association asserts their affirmation of these values in the Humanist Manifesto III. “We are committed to treating each person as having inherent worth and dignity, and to making informed choices in a context of freedom consonant with responsibility,” says the Manifesto. “Humanists are concerned for the well being of all. … We work to uphold the equal enjoyment of human rights and civil liberties.”
Naturally, ethicists who have their philosophical roots in certain religious traditions also hold a similar perspective to secular organizations that advocate for human rights, such as the U.N. and the AHA. Bernadette Tobin, director of the Plunkett Centre for Ethics at St. Vincent’s Hospital, in Sydney, Australia, endorses an inviolable view of humanity. “Every human being is equal precisely in having a human life which is our common humanity, our personhood, our dignity, our intrinsic value,” Tobin says. “In refusing to violate that life, one respects the human person in the most fundamental and indispensible way.”
We must recognize the dissolution of human equality–a principle that civilized organizations and individuals affirm–entailed by the pronouncement of abortion as morally permissible. If we are going to claim abortion is morally permissible then we implicitly endorse the idea that human beings are not equal and only some have intrinsic value. Overturning this foundational principle was anticipated in the early abortion debates. In an insightful editorial supporting abortion reform that appeared in a 1970 issue of California Medicine the author recognized just what was being called into question:
The process of eroding the old ethic and substituting the new has already begun. It may be seen most clearly in changing attitudes toward human abortion. In defiance of the long held Western ethic of intrinsic and equal value for every human life regardless of its stage, condition or status, abortion is becoming accepted by society as moral, right and even necessary. It is worth noting that this shift in public attitude has affected the churches, the laws and public policy rather than the reverse. Since the old ethic has not yet been fully displaced it has been necessary to separate the idea of abortion from the idea of killing, which continues to be socially abhorrent. The result has been a curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra-uterine until death. The very considerable semantic gymnastics which are required to rationalize abortion as anything but taking a human life would be ludicrous if they were not often put forth under socially impeccable auspices. It is suggested that this schizophrenic sort of subterfuge is necessary because while a new ethic is being accepted the old one has not yet been rejected.
The new ethic has found greater and greater acceptance in our nation over the past 43 years.
Deciding Who Counts, Who Doesn’t
Dr. Shelley Sella, is one of our nation’s four remaining late-term abortion providers. Dr. George Tiller–our nation’s preeminent abortion practitioner until his murder in 2009 by a man opposed to abortion–trained her. In an interview for the documentary film “After Tiller,” Dr. Sella reveals an inner struggle with her work. “I think about what I do all the time,” she says. “And I recognize what I do. And at times I struggle, and at times I don’t. But I always come back to the woman and what she’s going through. And, often, what life will this baby have? What will it mean to be alive with horrific fetal abnormalities? It’s not just about being alive. It’s about life and what does it mean.”
Dr. Sella’s charitable interpretation of her work seems to offer no comfort for Justin Dyer, a political science professor at the University of Missouri. Dyer sees a disturbing parallel between Dr. Sella’s work and a heinous project in history:
In the context of the debate over late-term abortion, Sella’s subtle contention is that killing a disabled baby can be an act of mercy and compassion. Although Nazi analogies are rarely helpful when talking about contemporary issues, it is hard not to think of the old German concept of lebensunwertes Leben, or life unworthy of life. In their now infamous book by that title, German professors Karl Binder and Alfred Hoche questioned “whether the vigorous continued preservation of such lives, as evidence of the inviolability of life, deserves preference, or whether permitting their termination, to the relief of everyone involved, would seem the lesser evil.”
Deciding which human beings count as morally relevant members of the human family and which ones do not is indeed a project with a monstrous track record. Philosophers who wish to distinguish between the value of fetuses and adult human beings argue that these little ones possess little or no value, and therefore should be segregated out of the human community. For that reason, lines are drawn on the continuum of human development to distinguish the valuable from the valueless. This undertaking has led to troublesome implications for abortion-choice advocates. For example, the view that killing a fetus is morally permissible, because doing so does not prevent her from accomplishing any aim–since she is not yet capable of forming any aims–justifies both abortion and infanticide. This principle was recently carried to its logical conclusion by two ethicists, Alberto Giubilini and Francesca Minerva. In an article titled “After-birth abortion: why should the baby live?” published by the Journal of Medical Ethics in 2012, they defended the moral justification for killing a healthy newborn infant:
Both a fetus and a newborn certainly are human beings and potential persons, but neither is a ‘person’ in the sense of ‘subject of a moral right to life’. We take ‘person’ to mean an individual who is capable of attributing to her own existence some (at least) basic value such that being deprived of this existence represents a loss to her. This means that many non-human animals and mentally retarded human individuals are persons, but that all the individuals who are not in the condition of attributing any value to their own existence are not persons. Merely being human is not in itself a reason for ascribing someone a right to life. Indeed, many humans are not considered subjects of a right to life: spare embryos where research on embryo stem cells is permitted, fetuses where abortion is permitted, criminals where capital punishment is legal.
With the dismissal of human equality it becomes possible to find justifications for infanticide. Moreover, arguments in favor of infanticide are not peculiar to these two authors. In the ensuing backlash from the article’s publication, the journal’s editor, Julian Savulescu, defended its publication and noted the concord of a number of pro-choice philosophers on the “merits and justification” of infanticide:
As Editor of the Journal, I would like to defend its publication. The arguments presented, in fact, are largely not new and have been presented repeatedly in the academic literature and public fora by the most eminent philosophers and bioethicists in the world, including Peter Singer, Michael Tooley and John Harris in defence of infanticide, which the authors call after-birth abortion.
Given their reasoning for the morally permissibility of abortion, these philosophers are, at least, brutally consistent when they go on to endorse infanticide.
In his book “A Defense of Abortion,” David Boonin proposes an additional criterion for respecting a human’s right to life. He maintains the unborn may be killed if they have no desire to live, but adds a caveat. Boonin argues abortion ought to be permissible until a fetus develops organized cortical brain activity, which “refers to electrical activity in the cerebral cortex of the sort that produces recognizable EEG readings.” Boonin suggests that once organized cortical brain activity is present the unborn may be attributed dispositional desires, which are desires you have even though you may not be thinking about them right now, for example, the desire not to drown. Boonin’s criterion relegates the moral permissibility of abortion to a specific time frame. “There is no evidence to suggest that this occurs prior to approximately the 25th week of gestation, and ample evidence to suggest that it does begin to occur sometime between the 25th and 32nd week,” Boonin writes of organized cortical brain activity. “If the onset of such activity marks the point at which the fetus acquires a right to life, then the vast majority of abortions do not involve the death of an individual with a right to life.”
If Boonin is correct in attaching our value to the advent of organized cortical brain activity then perhaps some will find solace in the realization that our profession only unjustly kills a minority of human beings with a right to life each year. Conversely, pro-life advocates reject the notion that human beings need certain acquired properties to be valuable. Instead they contend our value is rooted in our substance as a human being. Beckwith puts forward a cogent summary of this view:
Sophisticated pro-life advocates typically argue from the nature of the unborn in order to establish the standing of each unborn person as a rights-bearer who ought to be protected by our laws. This type of argument is meant to rebut the typical abortion-choice argument that locates a human being’s intrinsic value with whether it is presently able to exercise or exhibit certain functions, for example, consciousness, self-awareness, ability to communicate, possession of a self-concept. In a nutshell, prolifers respond to this sort of argument by arguing that there is a deep connection between our human nature and the rights that spring from it, which a just government is obligated to recognize. Because the unborn–from zygote to blastocyst to embryo to fetus–is the same being, the same substance, that develops into an adult, the actualization of a human being’s potential–that is, “human” appearance and the exercise of her rational and moral powers as an adult (which abortion-choice advocates argue determine the person’s intrinsic value), is merely the public presentation of functions latent in every human substance, from the moment it is brought into being. A human may lose and regain those functions throughout her life, but the substance remains the same being.
What is the basis for human value? Our conclusion will inform our judgment about who counts as a morally significant member of the human family and who does not. So, it is an enormously important question to answer right. Locating our value in accidental properties raises a lot of questions. For example, what possible non-arbitrary justification could ground our value in acquired properties? Further, why are these alleged value-giving properties value-giving in the first place? On the other hand, if you affirm human beings as valuable for the kind of thing they are–in other words, their nature or substance is value giving–then we have a principled reason to respect all human life at every level of development.
Our profession and our nation are confronted with a defining decision on this question of human value. What kind of a people will we choose to be? Will we give up human equality? On September 25, 2007, Keith Ellison, the U.S. Representative for Minnesota’s 5th congressional district, gave a speech to congress in support of the State Children’s Health Insurance Program bill, which aimed to provide health care coverage for members of society with little economic and social power. His words from that speech are very apropos to the questions we face today:
As the late Senator and former Vice President Hubert Humphrey from my State of Minnesota stated so eloquently: “The moral test of any government is how it treats those in the dawn of life, children; those in the dusk of life, the elderly; and those in the shadow of life, the disadvantaged.”
What will be history’s verdict on our actions by this moral test?
In an interview earlier this year, Dr. LeRoy Carhart, another late-term abortion provider trained by Dr. Tiller, spoke with journalist Alicia Menendez. “I mean–these are just such weighty issues, Dr. Carhart,” Ms. Menendez says. “How do you decide who you’re willing to serve, who you’re not?”
“Well I think the question of who we’re willing to serve is anyone who knows they need to have an abortion,” Dr. Carhart replies. “I think–well, in my heart and my mind–life begins when the mother thinks it begins, not when anybody else thinks it begins. For some women, it’s before they conceive, and for some women, it’s never. Even after they deliver it’s still a problem, not a baby. So, I think the main requisite for me is that the patient knows that this is the only answer she can tolerate in her life.”
In his response, Dr. Carhart seems to endorse an idea that is at the heart of the contemporary pro-choice view. His answer affirms the belief that a mother’s freedom to choose whether or not to carry her pregnancy to term ought to be of paramount concern. For Dr. Carhart, the mother should have the freedom to decide when life begins, not embryologists. I get the sense that those immensely important questions of human equality, human value, the humanity and moral status of the unborn, all pale in comparison with this issue of freedom for many. For these abortion-choice advocates, protecting the freedom to choose–even if it is an ignoble choice–may be the principle that trumps all others. From the perspective of a modern American, it may seem commonsensical to believe we should defend all freedom. But what is meant by freedom is often unclear.
In his 1958 lecture “Two Concepts of Liberty,” philosopher Isaiah Berlin distinguished between negative and positive freedom (or liberty). “Negative liberty is the absence of obstacles, barriers or constraints,” explains the Stanford Encyclopedia of Philosophy. “One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting – or the fact of acting – in such a way as to take control of one’s life and realize one’s fundamental purposes.”
Should we seek to have a wholly negative freedom, that is to say, a freedom from responsibility to the most defenseless human beings? What is rightly oriented positive freedom? In other words, what good is our freedom for?
If freedom without proper constraints is viewed as the ultimate good then this will have disastrous consequences for the vulnerable and downtrodden members of our society. “Men are largely interdependent, and no man’s activity is so completely private as never to obstruct the lives of others in any way,” Berlin said. “’Freedom for the pike is death for the minnows’; the liberty of some must depend on the restraint of others.”
“I think freedom is the central issue today because many of the chaotic things that are happening in this country are because of an excessive libertarian freedom,” said author and social critic Os Guinness, in an interview focused on his latest book, “A Free People’s Suicide.”
“Neither positive nor negative freedom is complete without the other,” writes Guinness. “They each describe complementary sides of the same full freedom, which always rests on two conditions: the complete absence of any abuse of power, which is the essence of negative freedom, and a vision of a positive way of life, which is the essence of positive freedom. In a free society understood in this way, free citizens are neither prevented from doing what they should (the denial of positive freedom) nor forced to do what they shouldn’t (the denial of negative freedom).”
Guinness goes on to write:
In short, negative and essentially private freedom is never enough by itself, and certainly not for citizens of a republic. Positive freedom is essential too. Yet today both American conservatives and liberals often speak as if negative freedom were all–the only difference between them lying in what each considers the bogeyman from which there needs to be freedom. Liberals view freedom as freedom from the imposition of others (“Not with my body, you don’t”) and conservatives as freedom from government encroachment (“Don’t tread on me” and “Get the government off our back”). …
As Abraham Lincoln pointed out, the Civil War was a clash between two freedoms: the negative freedom of the South and the positive freedom of the North. Today’s liberal and libertarian supporters of negative freedom should ponder a simple but stunning fact: from the banning of infanticide in the Roman Empire, to the abolition of slavery in the British Empire, to the advance and protection of civil rights in America, none of the great liberal reforms of the West could have succeeded on the basis of negative freedom alone, and none will be launched on such a basis in the future. Liberals, without a respect for positive freedom, your liberalism is not as liberal as it needs to be.
It seems to me that Guinness has rightly diagnosed our view of freedom as distorted. Without a proper vision for what is good and right we are, as some may wish, left to decide what is right in our own eyes. But we ought to honestly consider a few questions before endorsing an autonomous freedom without certain restraints. Does a noble view of freedom mean freedom from all responsibility to the unborn? Should a mother’s ability to live the life she planned outweigh her obligation to her son or daughter in utero? Should we use our freedom for upholding virtuous principles, such as human equality and inherent human value, or should we use it to oppose them? What is good about the freedom to kill a little one in gestation without interference from government or society?
Social justice is not remotely attainable when we seek freedom from certain responsibilities. If a self-determination, that is free from obligations, is thought to be the definitive moral good then we are left in a circumstance where might makes right or 51 percent of the vote decides what is right. If we decide right and wrong for ourselves by ignoring the natural law then how can we claim to be doing anything better than Dr. Van Evrie when he promoted his vision of white supremacy? Moreover, freedom from responsibility to the unborn is antithetical to the moral intuition we have for the inestimable and equal worth and dignity of all human beings. In her article “Abortion and the ‘Feminine Voice’,” Celia Wolf-Devine points out that we do have responsibilities to each other, and we apprehended this interconnectedness in our moral experience:
Making the existence of a relation between the unborn and the mother a matter of her choice or feelings, seems to run contrary to one of the most central insights of the feminine perspective in moral reasoning—namely, that we already are interconnected with others, and thus have responsibilities to them. The view that we are connected with others only when we choose to be or when we feel we are, presupposes the kind of individualism and social atomism which … feminists criticize as masculine.
Will we sacrifice human equality and dignity for a corrupt freedom?
Abortion, at least on a surface level, presents us with conflicting ethical principles. On the one hand, we have the principle that physicians ought to respect a woman’s autonomy to make decisions about her own health care. On the other hand, it is unjust to discriminate against the unborn based on her smaller size, earlier level of development, in utero environment, and greater degree of dependency. On top of that, we have a duty to safeguard the welfare of both patients and a duty not to intentionally cause harm. That being so, is it morally permissible to kill the unborn?
To solve this ostensible medico-ethical conflict we must answer some basic questions. What is the unborn? Do human beings possess value for the kind of thing they are? Or are they valuable only for what they can do? Should we recognize and uphold the inherent dignity, equality and inalienable rights for all members of the human family? Or do we reject this old ethic for a new one so we can decide whose life is worth living and whose is not?
With such profoundly important questions raised in this controversy we ought to do some further study and reflection. Should we be promoting greater access to this procedure? Or should we work to compassionately care for all women including the 500,000 little women who are currently destroyed in our nation every year? Should we work to promote the kind of reproductive freedom that authorizes women to end their pregnancies? Or should we work to end the destruction of freedom for one million little human beings every year?
This in-Training article has been revised to reflect the following correction:
Correction: June 9, 2013
An earlier version of this essay implied that John H. Van Evrie, M.D. issued the introduction for the Supreme Court’s opinion on Dred Scott v. Sandford. In fact, the preface, authored by Dr. Van Evrie, appeared in a pamphlet edition of the Dred Scott Decision.
The essay also repeated a sentence in a quotation from Peter Singer’s book “Practical Ethics.”