Why It’s Not Murder

Posted on February 28, 2017 by Facilitator

An Exception for Serious Injury

At Wayne State University last November 16, Scott Klusendorf, perhaps the dean of pro-life apologists, ably debated abortion with Nadine Strossen, a former president of the ACLU. Klusendorf based his pro-life argument on the humanity of the unborn and the wrongness of intentionally killing an innocent human being.

At 1:08:57 Klusendorf indicates a possible openness to health exceptions to his anti-abortion position. Strossen insists on more specifics – what kind of health condition would be serious enough to reach the threshold at which Klusendorf would agree to make an exception? Klusendorf replies:

Sure, I’ll answer that. Let me make an observation, though. Even if my answer were inconsistent, it wouldn’t eradicate the syllogism I put forward. . . . So even if I answered this question in a way that seemed inconsistent with my view, it would only show I’m inconsistent. It wouldn’t rule out the evidence I presented.

Then he brings up Doe v. Bolton’s overly-broad standard of “health,” and the empirical rarity of cases that would raise a real ethical question; but Strossen insists on a specific example even if “hypothetically,” and offers “Let’s say she will not lose her life, but she will be rendered infertile . . . ?” Klusendorf replies, “In that case the mother stands to lose one good, the child stands to lose an ultimate good” – meaning that impending infertility would not be a sufficient reason to abort. Strossen then moves on to other topics.

So Klusendorf laid the groundwork for a defense in case he might say something “inconsistent.” In the event, he was not forced to say anything inconsistent, but to my mind Strossen let him off the hook. Suppose instead of the infertility example, she had framed the hypothetical as “Let’s say she will not lose her life, but most likely her brain will be damaged, seriously affecting her motor skills and memory for the rest of her life.”

I don’t know whether Klusendorf would have agreed to an exception in such a case – which would have “seemed inconsistent with [his] view” that only a life-threatening situation might justify taking the innocent life of another a little earlier than its end would have come anyway (as in his ectopic pregnancy example) – but I, and I think many pro-lifers, would say, “In that case, no, she should be allowed to abort if she so decides. I will admire her if she doesn’t, but in terms of legal obligation, society should not compel her to carry the pregnancy.”

Yet it remains generally true for my brand of pro-lifers (just as for virtually all pro-lifers) that “It is wrong to intentionally kill an innocent human being,” and it remains true for us that the unborn is an innocent human being – so that it would seem impermissible to kill it. Moreover, if in an otherwise analogous situation a mother could avoid serious brain damage only by killing her innocent born child, it would almost certainly be illegal for her to do so. Suppose that in an earthquake a mother and her 4-year-old become trapped in a small space beneath the rubble. They can hear the voices of rescuers a few yards above them, but the air is running out and the mother’s brain will become damaged by oxygen deprivation if the 4-year-old keeps breathing also. If she were to put her hand over the toddler’s mouth and nose, thus killing it, that would certainly be illegal. Thus since the unborn is a human being like the toddler, allowing the woman to abort, as I and many pro-lifers would do, would seem inconsistent both with existing legal protections for born human beings, and with a syllogism that we basically support.

How to explain this? Do many pro-lifers not really believe that the unborn is an innocent human being? Well, clearly it is innocent, so the question becomes, do we not really believe that it is a human being? (Many pro-choicers, of course, like to push the idea that we do not really believe that.)

The answer is: we do believe that the unborn is an innocent human being, but we feel that society has no right to legally prevent a woman from saving herself, even if it is by use of lethal force against an innocent human being, from a very serious developing threat which would not exist without the participation of her own body.

What, morally, is the difference between the grievously health-threatening pregnancy situation and the “competing for oxygen” situation? The difference seems to be the difference between legally preventing a woman from using lethal force to save herself from a developing threat that is coming from outside her own body, and legally preventing a woman from using lethal force to save herself from a developing threat that is living within her own body and in whose development her own body will participate. The latter woman’s body is helping, as the days wear on, to augment more and more the threat against herself, and thus obliging her to continue doing that obliges her to seal her own terrible fate – an obligation which has a kind of moral repugnance all its own. (Even to prevent abortion in the case of a normal pregnancy is to oblige a woman to seal her own fate, but if it is a normal pregnancy, then by definition it is not a terrible fate.)*

Virtually all pro-lifers, like anyone else, respect the mental sense of body ownership that underlies the concept of bodily rights. The importance accorded to that sense rests on a kind of intuition, and hence the importance varies somewhat from person to person, but I don’t think there is a night-and-day difference in that regard between pro-lifers as a group and pro-choicers as a group. To put it more simply, pro-lifers as well as pro-choicers believe in “bodily rights.” So pro-lifers feel that as a moral starting point, or as a default moral principle, everyone should have a legal right to refuse to let their body be used unless they give permission. Certainly one’s body cannot be used for just any purpose under the sun. Where pro-lifers differ from pro-choicers is that pro-lifers are likely to feel that a woman should not have that legal right when her body is the only hope for survival of a new human being – a situation that they feel confers some degree of responsibility on her. (I have discussed elsewhere how I, as one pro-lifer, come to that conclusion.)

Yet the tipping of the scales on the side of the child’s life is not a completely day-and-night proposition. The belief in a default principle of bodily rights, on one side of the balance, never disappears even when a child’s life is at stake on the other side, with the consequence that for some pro-lifers (including me), if the woman’s pregnancy is expected to be exceptionally dangerous, then, in this conflict of rights, her bodily rights will again prevail as they did when no other life was at stake. It is not that the unborn is not what Klusendorf calls a “distinct, living and whole human being;” it is indeed that human being; but society has no right to legally prevent a woman from saving herself, even if it is by use of lethal force against an innocent human being, from a developing threat which would not exist without the participation of her own body.

This explains and resolves the seeming inconsistency. If in a situation analogous to pregnancy a mother could avoid lifetime brain damage only by killing her innocent born child, it would almost certainly be illegal for her to do so, whereas if a pregnant woman could avoid lifetime brain damage only by killing her innocent unborn child, many of us would allow that. The difference is bodily rights that operate when a person’s body stands to be used in a particular way, but otherwise do not operate.

Broader Implications of the Exception

This example of how bodily rights work when there is a likelihood of a grievous permanent injury has implications about the meaning of bodily rights in the cases of more normal pregnancies, also. One corollary of the example is this: For pro-lifers such as us who would make a grievous-injury exception, society’s right to outlaw abortion in the case of a normal pregnancy is based, as mentioned, on a balance that is not entirely one-sided. On one side of the balance is the value of a human life, on the other side, the burdens of a normal pregnancy coupled with the woman’s bodily rights. The human life wins out. But the woman’s bodily rights that are there by default never disappear; and therefore if a normally pregnant woman violates the law and claims those default bodily rights, it is not fully the same as killing a born child who is not infringing on her bodily rights. It is, though a defiance of the law, something less than murder.

Almost all pro-lifers think of the unborn at any stage as full-fledged persons, as members of our human family. And I think it is safe to say that very few pro-choicers think of them that way. Pro-choicers who use bodily-rights arguments think that they can justify abortion regardless of unborn personhood (as mentioned, I find that bodily-rights approach strong but not strong enough in normal pregnancies). So those who use such an approach normally concede for the sake of argument that the unborn are persons; but I think that almost always, they make that concession only for the sake of argument. As pro-choicers who genuinely think of the unborn as persons, I can only think of Naomi Wolf, who said, “Sometimes the mother must be able to decide that the foetus, in its full humanity, must die. But it is never right or necessary to minimise the value of the lives involved,” and Camille Paglia, who said, “A liberal credo that is variously anti-war, anti-fur, vegan, and committed to environmental protection of endangered species like the sage grouse or spotted owl should not be so stridently withholding its imagination and compassion from the unborn.” I don’t know how far those two base the pro-choice position they hold on bodily rights, but any pro-choicers who do rely on bodily rights, and genuinely see the unborn as persons, could make statements just like theirs.

So how should we frame a face-off over a normal pregnancy, between pro-lifers such as me, and those few bodily-rights pro-choicers who genuinely see the unborn as persons? It would be like the pro-choice side declaring, “There is a debatable contest between bodily rights and the right to life of a full-fledged person, in which bodily rights prevail,” and the pro-life side declaring, “There is a debatable contest between bodily rights and the right to life of a full-fledged person, in which bodily rights don’t manage to prevail.” For me personally, though it is clear that the outcome of the contest is on the pro-life side, I wouldn’t call the margin of the outcome (in terms of what should or shouldn’t be legal) a very pronounced one.

One may wonder why there should be so much polarization on the abortion issue, even among people who agree about the statistics, scientific facts, etc. Understanding those few conversations (such as the imagined one above) that are free from polarization helps illuminate the sources of the polarization that more typically occurs. Apart from some very important psychological dysfunctions that are involved, polarization stems mainly from widely disparate perceptions of the unborn, so a conversation such as the above is bound to be free from polarization. Therefore there is another corollary of the “somewhat debatable balance” view of the abortion issue: those few pro-choicers who really see the unborn as our little sisters and brothers will share that “somewhat debatable” view with the pro-lifers who hold it, and those two groups will not be each other’s hated enemies. Both groups will agree that the issue involves a balance that could understandably tip the other way in the other person’s mind. There will not be the acrimony that is usual between pro-choicers and pro-lifers. They will be able to talk. (If the pro-choicers deprecate the unborn, on the other hand, there will be a big fight.)

A key part of my presentation, remember, has been, “we [pro-lifers who share my view] do believe that the unborn is an innocent human being, but we feel that society has no right to legally prevent a woman from saving herself, even if it is by use of lethal force against an innocent human being, from a developing threat which would not exist without the participation of her own body.” Most of us feel that in the case of the big majority of pregnancies, those that result from a voluntary action by both the mother and the father, society should be ready to demand more risk than in the case of a rape pregnancy, but the above statement holds for us, even in that big majority of pregnancies in which the responsibility consideration is factored in.

* This note anticipates a certain objection and tries to respond to the objection. Readers who have not felt any objection so far to my argument involving the “rubble” example can skip this note.

I’m trying to show that there are some things about the fact that an unborn child who is a threat to a woman is inside the woman’s body, that should make it more legally justifiable to kill it than to kill a born child if that born child is equally a threat but also equally passive and innocent. And I’m arguing that one of those things, and sometimes a pivotal thing, is the fact that to legally prevent the woman from killing is to oblige her to participate in the development of a threat against herself. But some pro-choicers claim to intuit that anyone should have a right to kill a born assailant, innocent (by reason of insanity or whatever) or not, who threatens even a moderate degree of injury. Based on that intuition, they then cast the unborn as an assailant whom one has a right to kill. Moreover, they intuit that a woman’s bodily rights entitle her not only to passively refuse to let her body be used, but also to actively kill if necessary to save her body from being used.

Thus those pro-choicers might report that their moral intuitions agree with mine in that a pregnant woman threatened with permanent serious injury would have more right to use lethal force than would the woman in the rubble, yet interpret those moral intuitions as deriving from 1) their intuition that anyone should have a right to kill a born assailant, innocent or not, who threatens even a moderate degree of injury, 2) their intuition that a woman should have a right to actively kill if necessary, and 3) their view that the unborn is an assailant – more of an assailant than is the 4-year-old. So their moral intuitions might agree with mine about the “rubble” situation, but they might say that they agree partly because I have stacked the deck and cast as the counterfoil to the unborn a 4-year-old who is less of an aggressor than is an unborn child. They might disagree with my conclusion that what is necessarily pivotal is the fact that to legally prevent the woman from killing is to oblige her to participate in the development of a threat against herself.

But I am trying to show only why it is that many pro-lifers think that a woman in real danger of suffering permanent serious injury should be allowed to abort (and show that the reason is not that pro-lifers assign less moral value to the unborn than to her). I do think that many pro-lifers would permit a woman to use lethal force in order to avoid a level of injury that would not warrant killing a born person. But would pro-lifers agree 1) that anyone should have a right to kill a born assailant, innocent or not, who threatens even a moderate degree of injury, 2) that a woman should have a right to actively kill if necessary, and 3) that the unborn is an assailant?

Even if pro-choicers sometimes argue insincerely, their arguments are possible to make, so anyone who agrees with my moral intuition that a pregnant woman threatened with permanent serious injury would have more right to use lethal force than would the woman in the rubble, has optionally open to them the interpretation that that moral intuition comes only from agreement with 1, 2, and 3; that is, they could theoretically say that their intuition does not necessarily have anything to do with the fact that to legally prevent the woman from killing is oblige her to participate in the development of a threat against herself. But I think that pro-lifers are 1) unlikely to agree with pro-choicers about the degree of expected injury that would give anyone a right to kill an innocent born assailant, and I think they are 2) unlikely to agree with pro-choicers about the justifiability of active killing (as opposed to passively refusing to let one’s body be used, and 3) very unlikely to agree that an unborn child can be considered an assailant. So I think that pro-lifers who agree with me that it is more justifiable to use force against an unborn who is a threat, than against the child in the rubble, will not only agree with me that “there are some things about the fact that an unborn child who is a threat to a woman is inside the woman’s body, that should make it more legally justifiable to kill it than to kill a born child if that born child is equally a threat but also equally passive and innocent,” but also agree that the pivotal consideration is that to legally prevent the woman from killing is to oblige her to participate in the development of a threat against herself.

Appendix

I originally wrote the following version of the first few paragraphs, but replaced it with the above version for the sake of brevity. Some readers might be interested in further details of what led up to Klusendorf’s Even if my answer were inconsistent . . .:

At Wayne State University last November 16, Scott Klusendorf, perhaps the dean of pro-life apologists, ably debated abortion with Nadine Strossen, a former president of the ACLU. Early on, Klusendorf based his pro-life position on this simple syllogism:

Premise 1: It is wrong to intentionally kill an innocent human being.
Premise 2: Abortion intentionally kills an innocent human being.
Conclusion: Therefore abortion is wrong.

At 1:07:01 Strossen asks Klusendorf about exceptions: “when it’s necessary to save a woman’s life, when it’s necessary for her health, when she is the victim of rape or incest . . .” Klusendorf gives the example of an ectopic pregnancy threatening the life of a woman and affirms that this would be an exception and that any pro-life physician would agree. Strossen then asks about health exceptions: “if it’s not a matter of literally saving a pregnant woman’s life, but . . . serious adverse health impact . . .” Klusendorf replies in terms of the rarity of such serious cases (serious cases other than ectopic pregnancies). He also points out that Doe v. Bolton had allowed an overly broad health exception; but his answer implies that if Doe had not made things so broad, he would agree to a health exception. Strossen then asks, “What do you define as health [that is, a health condition whose seriousness would reach the threshold at which he would agree to make an exception]?”

At 1:12:01 Klusendorf says, Sure, I’ll answer that. Let me make an observation, though. Even if my answer were inconsistent, it wouldn’t eradicate the syllogism I put forward. . . . So even if I answered this question in a way that seemed inconsistent with my view, it would only show I’m inconsistent. It wouldn’t rule out the evidence I presented.

At that point he again brings up the overly-broad standards and the empirical rarity of serious cases, but Strossen insists on a specific example even if “hypothetically,” and offers “Let’s say she will not lose her life, but she will be rendered infertile. . . . Would that be a situation where you would say the pregnancy could be terminated?” He replies, “In that case the mother stands to lose one good, the child stands to lose an ultimate good” – meaning that impending infertility would not be a sufficient reason to abort. Strossen then moves on to other topics.

You may leave a reply, if you wish, without giving your name or email address. If you do give your email address, it will not be published. Back up your work as you type, in case of accidents.

Some future posts:

Life Panels

A Trade-Off of a Sensitive Nature

Unborn Child-Protection Legislation, the Moral Health of Society, and the Role of the American Democratic Party

The Motivations of Aborting Parents

Why Remorse Comes Too Late

The Kitchen-Ingredients Week-After Pill

Unwanted Babies and Overpopulation

The Woman as Slave?

Abortion and the Map of the World

A Pro-Life Feminist Balance Sheet

Posted on February 24, 2017 by Facilitator

Secular Pro-Life has published an article of mine under their paid blogging program.

A sentence in the next-to-last paragraph reads:

Because even if the legality of abortion is morally neutral and abortion does not psychologically harm women, there is no question that reliance on the practice to solve various problems denigrates women’s femaleness, instead of honoring it and demanding that society accommodate it (remember the point about female functions above) . . .

But as I said in a main comment under the article, “I should have written ‘Because even if keeping abortion legal is not morally wrong and abortion does not psychologically harm women, there is no question that reliance on the practice to attain equality with men denigrates women’s femaleness, instead [etc.].'” The entire comment reads:

I wrote in the article, Because even if the legality of abortion is morally neutral and abortion does not psychologically harm women, there is no question that reliance on the practice to solve various problems denigrates women’s femaleness, instead of honoring it and demanding that society accommodate it (remember the point about female functions above) . . .

I should have written “Because even if keeping abortion legal is not morally wrong and abortion does not psychologically harm women, there is no question that reliance on the practice to attain equality with men denigrates women’s femaleness, instead [etc.].” I was trying to be brief, but I wasn’t very successful in being both brief and clear.

Early in the article I had written: Women will no longer have to live in a society that gives official sanction to the idea “. . . Often, the female sex can become equal to the male only by assaulting a female function . . .” There were a number of reasons that abortion was originally made legal in the US. The stated reason was “privacy,” but that does not mean that that was the actual main reason in the collective inner mind of society – or if it was, the main reasons might have shifted – and I don’t think that in popular belief that is now the main justification for the legality. Justice Ginsburg wrote in Gonzales v. Carhart, quoting from Planned Parenthood v. Casey, “[Women’s] ability to realize their full potential . . . is intimately connected to ‘their ability to control their reproductive lives.’ Thus, legal challenges to undue restrictions on abortion procedures . . . center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature…”

Ginsburg was talking about equal citizenship stature to be achieved by assaulting the normal bodily functioning of a female who has happened to get pregnant. She was giving official sanction to the idea that that is sometimes the price of equality and thus that women are by nature less than equal. (Which pro-life feminism disputes. Pro-life feminism blames society rather for not accommodating women’s nature.) If in the popular mind the reasons for the legality of abortion were other than such equality – for instance if people believed that it is legal because making it legal is, due to bodily rights or whatever, morally neutral or morally right, then the legality of abortion would not have the effect of denigrating women’s femaleness – but if people believe the reason to be equality, then the message they get from official quarters is that by nature, women are less than equal.

And in a reply to a commenter, I further wrote –

Suppose I had said, “there is no question that if a pregnant person allows her physiology, which scientific consensus calls female and not-male, to function unhindered, the result will be a born baby (or at least is much more likely to be a born baby than if she deliberately hinders the functioning)” — ? I think you would say, okay, there’s no question.

However, am I justified in equating unhindered female functioning with femaleness? Though I might think twice about how I use “femaleness” if I find that word has been used differently by pro-life feminist thinkers, I guess I would define it as “female anatomy/physiology (along with any inborn, hardwired female behavior traits, if there are any) as the ultimate basis of female identity.” Let me explain.

Suppose a person has typical male anatomy and physiology but identifies as female. Okay, so if you ask me the person’s gender identity, I will say “female”. But does that mean that anatomy is completely unrelated to identity, as some might claim? I don’t think so, because the fact that the person identifies as female means there is such a thing as a female. And what defines that concept of “female” that the person is using? It can only be what scientific consensus calls female anatomy and female physiology. Unless “female anatomy/physiology is the ultimate basis of female identity,” then there can be no such thing as feminism, there can be no meaning to “women’s struggle,” “women’s rights,” “Women’s March,” “women’s health.” Or even “equality of men and women.”

So, a few or many females (by identity) may have male anatomy, but still female anatomy/physiology is the ultimate basis of female identity. Take away that basis and female identity will become meaningless

You might be trying to tell me, “If women hinder their physiological functioning, that is not denigrating their female identity, because they don’t identify with their anatomy/physiology.” But they DO identify with it.

I wrote, “there is no question that reliance on the practice to solve various problems denigrates women’s femaleness.” I should have said “certain problems,” or more specifically “problems that jeopardize their equality.” If a woman’s problem is that the unborn has some cosmetic defect, that’s not a good reason to abort, but she is not aborting for the sake of equality with men. But if she aborts in order to compete with men at work,* then the abortion is a statement “If I allow my normal physiological functioning then I’m inferior to men.” An abortion for that reason denigrates her femaleness.

* The Justice Ginsburg justification for legal abortion — see the main comment that I made in this comments section.

Whereas if the woman said, “I’m going to go ahead and deliver the baby, maybe even raise it, and I demand that society reward me for doing that job as much as it rewards the men whom I will now lag behind at the office,” then she’s a pro-life feminist. PL feminists say No, I can have my normal physiological functioning without being inferior to men. But I will be different from men, and society has to accommodate me along with my difference . . .

– and to another commenter I wrote:

. . . The institution of legal abortion, as the article says, entails both benefits and losses for women, and most of those benefits and losses are primarily material, not moral. For instance, if abortion is legal, it will be a little safer — a benefit in terms of the health of aborting women, a material benefit. However, if the institution of legal abortion is morally wrong and if that institution exists, then the whole society becomes to that extent an immoral society and everyone (including women) will be polluted morally by having to live in it. Whereas if the institution of legal abortion is morally right and if that institution DOESN’T exist, then the whole society becomes to that extent an immoral society and everyone (including women) will be polluted morally by having to live in it. So though the article counts up mostly material benefits and losses that stem from making abortion illegal, there will also be a benefit or loss in terms of moral pollution BY THE VERY FACT that abortion is legal or illegal.

Though I think myself that the institution of legal abortion is morally wrong, some think it’s morally right, and I wanted all the benefits and losses to be undebatable, so as you may have understood, I did not (in this particular article) come to any conclusion about its morality.

But I did say that if the institution of legal abortion is not morally wrong, then as an institution (THE VERY FACT that it is legal), it doesn’t come in the “losses” column. But even if the institution of legal abortion is not morally wrong, that institution DOES send the message that femaleness is inferior — that institution denigrates women — which DOES come in the losses column. That’s what the sentence is saying.

That denigration is not exactly a material loss or a loss in terms of moral pollution. It’s an image loss . . .