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Reply to Majestyk: All Abortions Are Equal & Equally Wrong
Editor’s Note: This is the second of two pieces we’re publishing today on abortion. Majestyk’s post may be found here.
I’d like to thank Majestyk for the opportunity to respond directly and immediately to his post. I would also thank Tom Meyer and the Ricochet editors for the invitation to offer a counterpoint to Majestyk’s argument. He makes some interesting points which clearly require a reasoned response.
Honesty and good faith demand that I first set forth my position on abortion: I believe that abortion is the intentional taking of an innocent human life; that this is always wrong; and that there can be no compromise. I happily admit that I am fanatical if that term is defined as unyielding in my belief that human life — from conception to natural death — is sacred. In my view any leeway is a devil’s bargain, not simply because innocent lives will be lost, but because a society that authorizes the killing of the defenseless will quickly perish, as we are witnessing in the population collapse that is sinking the western world. Thus the stakes are enormous.
Now to respond to Majestyk’s argument. Majestyk seems to suggest that rights travel up a continuum grounded in the various stages of prenatal development. At some point — largely undefined — a fetus is entitled to the full panoply of rights, most particularly the right to life. I’ll have him speak for himself:
In contrast, after an implanted blastocyst has attained a certain level of development — and as the pregnancy becomes more obvious — it becomes feasible to grant an increasing quantity of rights to it. Indeed, these rights should accrue rapidly as shown in my illustration and asymptotically approach those of a full person as it reaches viability.
Majestyk continues:
It makes sense that the beginning point for the growth of these rights should come as the fetus moves beyond the stage of being an implanted blastocyst and grows into recognizably human form. Another critical marker should occur when the fetus begins to have neurological activity resembling that of infants.
At bottom, Majestyk argument is that until an unborn child reaches a point at which he is a person in the eyes of society, he enjoys no rights whatsoever. I find the argument strange because it suggests that the rights of which we are endowed derive from the state. We are not then “endowed by our creator with certain inalienable rights,” but rather our rights are derived through the fiat of society’s centralized and coercive power. Majestyk cites Barry Goldwater’s famous observation that “A government big enough to give you everything you want is a government big enough to take from you everything you have.” I would add that a government which gives us our rights has virtually unfettered power over our lives.
The limits placed on government are fixed, not by its power over us, but by the power we have over the government. The only workable check on government are the rights we enjoy innately — rights that cannot be taken away by anyone.
Majestyk’s argument is interesting, but nothing new. His framework is essentially identical to that invented by the Supreme Court in Roe v. Wade and Planned Parenthood v. Casey. In those cases, the Court concluded that it was impossible to determine when a fetus becomes a person and therefore the Court was empowered to make that very decision. Roe established the three trimester process in which, for all practical purposes, the states had no authority to restrict abortion. While the Court held that the states could prohibit abortion in the third trimester except in cases in which the mother’s health was at risk, in Doe v. Bolton, the companion case to Roe, the Court defined health of the mother so broadly as to effectively prohibit state regulation in toto. In Casey, the Court abandoned the three trimester approach in favor of a viability analysis. The Court held that once a fetus is viable a state could prohibit abortions, but, again, concluded that any such restrictions were pre-empted by concerns over the “health of the mother,” a concept so expansive that states still have little actual authority to ban abortion.
Thus, to accept Majestyk’s analysis is to simply surrender to the status quo. He does seem to grant that late-term abortions should be restricted, although he offers no details. However, the Congressional Budget Office, while analyzing the cost of the Pain Capable Unborn Child Protection Act, estimated that there are no more than 11,000 late-term abortions per year. Majestyk’s compromise would require that pro-life advocates accept a million abortions per year in exchange for the small number saved from late-term abortion. In essence, unconditional surrender.
It strikes me that the only principled way to treat the question of abortion is to declare that the right to life (and personhood to the extent that is a relevant consideration) begins at conception. This would require that we outlaw abortifacients and every other means the direct purpose of which is to kill an unborn child (this would not include IUDs since there use does not involve a premeditated intent to kill). Abortion advocates will scream that this means inviting the government into our bedrooms. The argument is a red herring. Constitutionally there can be no search, seizure, or arrest without an a priori showing of probable cause. It’s certainly possible that a busy body neighbor could peek in a window to see if a woman is swallowing RU-486, but the testimony of a Peeping Tom will not support a finding of probable cause. Protection from the first moment of life is, in fact, the surest guarantee that government will not stick its nose into our personal affairs.
Of course abortion advocates will surely argue that the outlawing of abortifacients like RU-486 will create a black market in such methods. But it is more likely that, rather than risk prosecution, people will exercise greater caution in the selection and use of legal birth control including, we might hope, the oldest and most effective of them all: The word “no.”
In his concluding remarks Majestyk decries the legacy of Roe:
Roe v. Wade has given us a tragic legacy of division. Its human cost has been nearly incalculable in addition to the violence it did to our system of jurisprudence. Conservatives have sought to use the tools available to us to limit that damage and we have won hard-fought battles to limit late-term abortions – and I should note, done it in the correct way, through the use of the legislative process, not judicial fiat.
As noted above, however, he advocates for the exact same methods albeit pursuant to legislation. The democratic enactment of an equally incoherent approach hardly seems to get us very far. While I too would prefer legislation over judicial power, I would leave the decision entirely in the hands of the legislature — including the authority to prohibit all abortions. We ought not to place any restrictions if we are truly interested in legislative solution. To create a presumption in favor of a viability analytic would effectively do exactly what present jurisprudence does: Limit legislators to a very narrow field of authority.
Majestyk concludes with this:
But let us not make the error of observing the evils of a Kermit Gosnell and his abattoir and conclude that we can and must stop all abortion. Such power is not ours to wield.
This argument, which is entirely conclusive and devoid of analysis, is to rationalize legal killing. Worse, in my view, the killing of the innocent. It’s hard to imagine a greater and riskier power than the right to kill an innocent human being. Nor is it difficult to imagine that protecting the innocent is our greatest calling.
You can read Majestyk’s original post here.
Published in General, Law
Mike,
While I tend to agree with you on this issue more than Maj, I would like to see you lay out the philosophical and legal case for both why your beliefs are the correct ones and how they can be realized legally. You correctly identify flaws in Majs argument without actually laying the groundwork for your side as Maj did in his piece.
Still, well argued.
Thanks for your response, Mike.
I think that you give short shrift to the notion of what is politically feasible versus what is morally desirable. Given test cases such as the various Personhood Amendments in Colorado which have failed spectacularly in plebiscites and even served as anchors which our political opponents tie around the necks of our candidates do you think that a position which is more conciliatory might be in order?
I appreciate clarity to agreement (as does Dennis Prager) but I can see the argument for the use of the morning-after pill, various birth control techniques and exceptions for rape and incest.
So too apparently do broad swaths of the public at large. So strong is that sentiment in fact that if we required our candidates to toe this line perfectly it would be a suicide mission.
I was going to go into this but then the post would be a couple thousand words. I try to avoid that because posts that long wear me out. Also, I finished this at 3AM, about the time my ambition waned(-:
I’m working on another post on these issues which I’ll put up next week. I’d like to do another point-counterpoint if Maj is up for it.
Kudos to both Mike and Majestyk for the strong pieces.
I don’t think that’s the natural conclusion of Maj’s argument.
The difficulty with early stage abortion here is that the government’s ability to protect the right is so inherently compromised; i.e., it cannot be expected to protect the rights of citizens it does not know to exist.
Some doubtless, will refrain from doing so.
But my guess is that it’s going to be a fairly small number given the relative ease of procuring such things and the equally easy ease of getting away with it.
I’m sufficiently pragmatic to accept small victories in what has been a long fight. On the other hand, I’m concerned that the precedent set will only make it more difficult to achieve the final goal. You’re right, of course, that the voters aren’t there for a complete victory–and that’s important–but I don’t think my side benefits by deviating from the absolutists argument. We’re walking a tight rope here.
Jamie asks for a philosophical and legal analysis of the issues. I’d like to do another of these exchanges. Would you be up for it? I won’t be able to get it done before Monday. I could offer the first article and you could do the reply.
I’m more than willing.
You guys are going to write counterarguments, right?
This is why I am a Ricochetti.
Can’t wait for round 2, wherein the souls of the unborn will be further analyzed and their viability determined, or at least cataloged. I’m a fierce opponent of vote counting, empty arguments and angels dancing on pin heads. Life is sacred.
We’re working on something for next week.
Appreciate these posts. Thanks, fellas.
My first thought is, it isn’t in the interests of the pro-choice crowd to inform the public on either the law or the bioethics of abortion. More information, more widely disseminated works against their case. This should be a red flag to those tempted to agree with them. In my experience, most people are ignorant of how Roe v Wade trampled states’ rights to impose “reasonable” limits on abortion.
I also think the argument that bans on abortion are too intrusive is a bit of a straw man. The law only needs to address the means of killing innocents, it doesn’t necessitate knocking down doors and administering pregnancy tests.
As to the ethical arguments, it is more than passing odd that we can agree that we don’t know at which stage of development a fetus gains his “rights,” and therefore we should allow killing him? Especially when the medical community which facilitates abortions has agreed to the ethic of “first do no harm.” Doctors who agree to perform abortions (and euthanasia) scare me, and should scare us all.
I also refer readers to Robert J. Spitzer’s Ten Universal Principles of Life for the philosophical ground against abortion.
Scientifically RU-486 is not abortion. There is no fertilized egg which gets aborted. It merely causes the egg to drop from the lining before it is even able to be fertilized. Birth control which prevent fertilization is not abortion. This is coming from someone who thinks any woman who aborts her child for any reason, other than a high probability of dying, should get a bullet through her head, along with the father for accessory to murder if he helped in anyway.
Check your facts there, Brian. Fertilization typically occurs in the Fallopian tubes before the blastocyst descends and implants in the uterine lining. It’s a unique human, which, without interference, more often than not will be born and need a name nine months later.
That’s why RU-486 is called an “abortifacient,” not “contraception.”
Not actually true – evidence suggests that there is an over 50% chance a blastocyst will never implant.
Huh, it used to be 25%.
I’ll need some explanation as to how this “evidence” was gathered and who’s doing the gathering. I admit to lacking the imagination as to how anyone could possibly know this number.
We have to remember who we are up against. (We who believe either that human life begins at conception, or at some other point during gestation; but either way, that aborting a human life is wrong.)
We are up against people who believe that a human life is valued on a sliding scale.
Progressives understand they’ll never get to a perfect society with some of the genetic material hanging around here. Up until WWII, American Progressives loudly and proudly promoted culling the herd. And they engaged in doing so with the help of an ever pliant medical profession. Progressives are finally taking some bold steps back in that direction. This is why late-term abortions seem so important to them, why they can hardly contain their enthusiasm for assisted suicide and its close cousin euthanasia, and why academic ethicists are already arguing that infanticide is not ethically different from abortion.
We need to establish that a fetus is human at SOME DEFINABLE POINT during gestation. I personally favor conception, but will go along with another definition – as long as we draw a line somewhere, and refuse to cross it.
But more importantly we need to fight to establish the principle that killing any innocent human is wrong, illegal, immoral, illiberal – whatever, but that it is absolutely prohibited. It must be prohibited for strong practical reasons, not merely religious ones, for we have seen what happens when governments are granted the authority to define when human life is worthwhile.
The only reason for recognizing the right to life at any point other than conception is to provide a rationale for eliminating the life….. verdict first trial afterward. A human life is a continuum that begins at conception and ends in death. The goal of an abortion is to ensure that both ends of the continuum take place within the womb. The whole point of the exercise is to preempt a child who already exists, but is unwanted, unrecognizably human, and unattractive. In other words we are defining someone out of the human race in order to justify their elimination and we are basing our redefinition on flexible selfish standards. How does that fit in with any absolute conception of human rights?
Also, the word “murder” does not belong in any discussion of abortion. A murder is an illegal homicide and abortion is legal. It is, however, the deliberate killing of an innocent human being and is wrong regardless of legal status.
Also, (again) we need to be careful not to conflate principle and practice: our principles can be absolute while we accept the need to work within the existing environment to draw closer to the day when principle and practice are congruent.
These kinds of hateful comments say so much. “A bullet through the head … accessory to murder.” I personally find this kind of comment more morally reprehensible than a couple who has an abortion.
I also see the premeditated intent to kill as the issue. However, in our free society to condemn a person of a crime you also have to prove there was a crime. This is why RU-486 is in a gray area. When a woman takes uses RU-486 after a regretful encounter there is certainly intent, however there is also significant probability that no actual chemical abortion took place due to the probability of no natural implantation or even fertilization took place.
One could argue that there is no other purpose to RU-486 than preventing a pregnancy so it should be outlawed, but this same logic could then apply to all birth control. In fact, don’t some chemical birth control solutions like IUD’s act by preventing implantation rather than fertilization?
Thank you for this reasoned rebuttal to Majestyk’s essay.
I look forward to the post outlining your rationale for protecting unborn human life. As part of that, i believe we should construct a legal mechanism to allow medical treatment of mother even when the death of a fetus can be foreseen, though not intended. I think any legal limits on abortion need these exceptions for practical reasons (to pass the bill) but also to allow for legitimate exceptions for maternal health (ie double effect). I agree SCOTUS made this exception big enough to drive a truch through but that does not mean legitimate cases dont exist.
My issue with Mike’s statements is that he seems to imply that we are either bound by society’s current standard. which I disagree with; or a religious, but still arbitrary, standard. The statement that “We are endowed by our creator with certain inalienable rights” is also a societal declaration.
Personally, I believe that as soon as an embryo has consciousness then their life is sacred. I do not believe that a collection of 4, or 16, or 32 cells has consciousness. I do not know when this might happen. Over the past 4o+ years, we have continued to learn more; and I think that as we learn more, this should continually guide our standards and our actions.
That said, my declaration to my children is that I will support and raise any of their children regardless of circumstance of conception.
I think the value of a post on this subject is directly proportional to a poster’s willingness to define a bright line. If you cannot, why even start this debate again? Put this whole conversation down as another futile effort to define grayness that has happened for decades.
If Maj can define a moment when abortion is ok, and a moment later when it is not, say it loud and proud. Without it, the inevitable destination is hundreds of posts arguing over where the line is – an exercise in futility if I ever met one.
When the sperm meets the egg, the DNA created is unique in all the history of humankind. Count that as my bright line. Left to itself, and as complex as the process is, unimaginably often a baby will soon meet the world.
Anything other than “Life begins at conception” means giving the state the power to declare that not all humans are persons.
That never ends well.
Yes, precisely. There was an article at The Federalist about how self-definition (or defining others down, in this case) — and then demanding others accept your self-definition against all evidence to the contrary, is destroying our society. I can’t find it now, or I’d link.
I do not think I have the eternal wisdom to define a bright line. You seem to be saying that I cannot think and care about this topic unless I am possessed with detailed certainty.
No, I’m saying without a bright line I gloss over most comments. On abortion, I’m convinced there has to be an absolute bar to measure whether and when this should occur. Maybe that’s too mystical for some, but I’m also convinced that if someone claims certain rights exist, “when” they start is crucial to define.
I agree about the need for a bright line. And I think that the bright line evolves over time as the human race learns more e.g. becomes more enlightened.
Yeah, that’s spot on. Who are we to decide at what stage human life is worthy of killing or not? Life is endowed by our creator, and we don’t have a moral right to end it, and certainly not for convenience. And the state is the last entity I would turn to in such matters.
The good news on that topic is that you don’t have to make that decision. It sounds trite, but the best way to avoid abortion is to not have one. Expecting that every other citizen will toe the same line as you (and to have that preference enforced by the rule of law, no matter how ineptly) is an unreasonable expectation.
Another aspect of this is: how do you explain your position to people who don’t believe in God as you do? Do you have a means of elucidating this outside of an appeal to authority?
I personally favor a definition of life that reverses the definition of death. We determine death by lack of brain activity and lack of cardiorespiratory function. It would seem to follow that a fetus with brain activity and a beating heart is clearly alive.
This does not require the invocation of God or some kind of new worldview, and it is easy to explain.