Not All Abortions Are Equal

 

shutterstock_65609728Editor’s Note: This is one of two pieces we’re publishing today on abortion. Mike Rapkoch’s response may be found here.

Abortion is a contentious political issue because the two most visible positions are irreconcilable. If you think that all abortions are the moral equivalent of murder, then any accommodation with abortion makes one complicit with great evil. If, however, you think a woman has a fundamental right to terminate any pregnancy without reference to any interests besides her own personal preference, it is similarly difficult to justify restrictions on the practice.

Having hashed out my opinions on the matter on this site and elsewhere, I’ve concluded that, regardless, an unsatisfying compromise between the competing interests and factions is the best available political option. There’s the interest of the mother, the (tragically underserved) interests of the father, the interests of the fetus, and the interests of the public to be considered. Most importantly in my mind, there is the matter of practical law enforcement and the appropriate limits of state action.

In general, my apprehension of how we grant fetuses an ever-increasing quantity of rights looks like this:

Screen Shot 2015-11-11 at 10.51.43 PM
X axis represents months; Y axis represents rights.

At the time of conception – that is, the fertilization of a human ovum into a zygote – that organism has very few rights. It has a unique genetic sequence and it is, genetically, human. It is not, however, embedded in the uterine wall and has a reasonable chance (up to 50 percent by some reckoning) of never doing so. Drawing the distinction between spontaneously aborted blastocysts and those aborted as the result of a birth control device (such as an IUD) is difficult at best – certainly there is an element of willful behavior in the second case – but that is functionally indifferent from using any other form of highly effective birth control. At no other stage in our lives is it so difficult to tell natural from unnatural death.

Why should early-stage fetuses have rights short of those we grant people? That is primarily because, as a practical matter, we have limited ability to grant them such rights. At this point of its development, this creature is no larger than the tip of a pin and is not morphologically identifiable as a human; i.e., it’s indistinguishable in features and ability from a similarly aged fetus of other mammals. It lacks a rudimentary nervous system and, consequentially, the ability to feel pain. Moreover, it is functionally impossible to detect and thus, it seems impractical for the state to be expected to protect the rights of citizens who cannot be located, and whose existence can not be determined.

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.

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.

This transition signals the shift of the balance of interests — or perhaps the growth of the interests — of the fetus as it physically matures and becomes more and more intertwined with society and, potentially, the law.

The fact is that an early stage fetus (as opposed to the fully-formed infants that we have wisely chosen to protect) has a very tenuous relationship to a society ignorant of its existence. As conservatives who share Thomas Sowell’s understanding of the Constrained Vision, we should acknowledge that — perhaps, tragically — there there are limits to what we can accomplish through the power of government. Asserting that we can alter human nature with respect to this issue undermines our attempts to limit government’s reach in other areas.

Barry Goldwater once warned that “A government big enough to give you everything you want is a government big enough to take from you everything you have.” Given the near impossibility (short of Orwellian dystopias) of enforcing laws that treat early stage abortions as murder, conservatives should be wary of using state power in this matter. That is, a government that possesses knowledge of you which is sufficiently intimate to know when or how a woman might be in the early stages of pregnancy is too powerful and intrusive to allow for liberty, let alone to protect it. Unless we’re willing to chuck the Bill of Rights and the Constitution’s enumerated powers — things we rightly scold Progressives for doing, even granting good intentions — we need to accept that some abortion is inevitable and that the costs of enforcement would be extremely high when compared to the marginal potential benefits.

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.

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.

You can read Mike Rapkoch’s response here.

There are 60 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Tom Riehl Inactive
    Tom Riehl
    @TrinityWaters

    Wow. A preponderance of rights corresponds to the concept of humanity? I’d dearly love to see the equation governing the shape of that line in the graph. Impenetrable rhetoric can’t obscure the existence of life.

    • #1
  2. Jamie Lockett Inactive
    Jamie Lockett
    @JamieLockett

    Maj, I think you make some good arguments here and while I don’t agree with your conclusions I think it is important to note the inordinate government intrusion it would require to practically enforce a ban on early abortions. While I would prefer a society where this didn’t happen the battle for early stage abortion needs to be won in the culture and not through the law.

    • #2
  3. Majestyk Contributor
    Majestyk
    @Majestyk

    Jamie Lockett:Maj, I think you make some good arguments here and while I don’t agree with your conclusions I think it is important to note the inordinate government intrusion it would require to practically enforce a ban on early abortions. While I would prefer a society where this didn’t happen the battle for early stage abortion needs to be won in the culture and not through the law.

    Moral suasion is the key. Not the enforcement of government bans.

    • #3
  4. Roadrunner Inactive
    Roadrunner
    @Roadrunner

    In our country the convenience of the mother takes precedence over the life of the baby at any stage. In our country a fully developed baby just before birth or one moment after conception have no worth unless the mother says they have worth. Who are these murderous god-like creatures called mothers? 60 million notches on their belts are quite a death toll. They rate right up there with the great mass murderers of history.

    • #4
  5. Tom Meyer, Ed. Contributor
    Tom Meyer, Ed.
    @tommeyer

    Majestyk:
    Why should early-stage fetuses have rights short of those we grant people? That is primarily because, as a practical matter, we have limited ability to grant them such rights. At this point of its development, this creature is no larger than the tip of a pin and is not morphologically identifiable as a human; i.e., it’s indistinguishable in features and ability from a similarly aged fetus of other mammals. It lacks a rudimentary nervous system and, consequentially, the ability to feel pain. Moreover, it is functionally impossible to detect and thus, it seems impractical for the state to be expected to protect the rights of citizens who cannot be located, and whose existence can not be determined.

    I know I’m in a minority here, but I find this persuasive, if not of abortion’s morality, than at least of its difference from murder.

    When we’re talking about a fetus at such an early stage of life, the fetus has never contained a self, at least in no way that can be demonstrated. That we might ban or limit early-term abortion on the grounds that it’s wrong for us to do regardless of whether or not its murder is a separate question.

    • #5
  6. Majestyk Contributor
    Majestyk
    @Majestyk

    Roadrunner:In our country the convenience of the mother takes precedence over the life of the baby at any stage. In our country a fully developed baby just before birth or one moment after conception have no worth unless the mother says they have worth. Who are these murderous god-like creatures called mothers? 60 million notches on their belts are quite a death toll. They rate right up there with the great mass murderers of history.

    If what you’re saying is “this is a problem that starts with mothers” I don’t know if I can totally disagree. In the end, the person who is the strongest advocate for a child is its mother – if the mother of these children won’t stand up for them, it puts the rest of us in a difficult position.

    • #6
  7. Tom Meyer, Ed. Contributor
    Tom Meyer, Ed.
    @tommeyer

    Roadrunner: In our country the convenience of the mother takes precedence over the life of the baby at any stage. In our country a fully developed baby just before birth or one moment after conception have no worth unless the mother says they have worth. Who are these murderous god-like creatures called mothers? 60 million notches on their belts are quite a death toll. They rate right up there with the great mass murderers of history.

    So do you think there’s no moral distinction between an abortion at seven weeks and one at seven months?

    • #7
  8. Majestyk Contributor
    Majestyk
    @Majestyk

    Tom Meyer, Ed.:When we’re talking about a fetus at such an early stage of life, the fetus has never contained a self, at least in no way that can be demonstrated. That we might ban or limit early-term abortion on the ground that it’s wrong for us to do regardless of whether or not its murder is a separate question.

    There are elements which make up murder – the most basic being habeas corpus.

    Lacking a body on which to make the case (which is what we’re facing in most of these early term situations) is a serious stumbling block.

    • #8
  9. Roadrunner Inactive
    Roadrunner
    @Roadrunner

    Tom Meyer, Ed.: So do you think there’s no moral distinction between an abortion at seven weeks and one at seven months?

    No that is what the Supreme Court found in our Constitution.

    • #9
  10. Roadrunner Inactive
    Roadrunner
    @Roadrunner

    Majestyk: If what you’re saying is “this is a problem that starts with mothers” I don’t know if I can totally disagree. In the end, the person who is the strongest advocate for a child is its mother – if the mother of these children won’t stand up for them, it puts the rest of us in a difficult position.

    That same argument would work on the other side of birth as well.

    • #10
  11. Tom Meyer, Ed. Contributor
    Tom Meyer, Ed.
    @tommeyer

    Roadrunner:

    Tom Meyer, Ed.: So do you think there’s no moral distinction between an abortion at seven weeks and one at seven months?

    No that is what the Supreme Court found in our Constitution.

    And you?

    • #11
  12. The Question Inactive
    The Question
    @TheQuestion

    Majestyk has a point in that as technology develops, it may get logistically harder to stop abortions through legal action (similar to what is happening with 3D printed guns). I’m not in favor of banning birth control pills, even though they may sometimes cause the abortion of an embryo. That’s not because I think embryos have fewer rights, but merely an acknowledgement that trying to prove beyond reasonable doubt an intent to kill the embryo would be very difficult.

    I assume that it’s easier to murder drifters and get away with it, because when a drifter disappears people aren’t as likely to notice. The same would apply to the unborn, whose existence is likely unknown to everyone other than the mother. That doesn’t mean that drifters or the unborn have fewer rights, but that it is more difficult to protect those rights as compared to people with jobs and friends and family connections.

    I think I could be persuaded that the insides of our bodies fall outside the jurisdiction of the government. That would explain how we can make it illegal to perform abortions, but not illegal to get one, which I think is the position of most pro-lifers. Hypothetically, if a woman had the ability to abort by voluntary, physiological action, I don’t think we would want to make that a crime. I would not support such an action, but how could it be proven in court?

    • #12
  13. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Roadrunner:In our country the convenience of the mother takes precedence over the life of the baby at any stage. In our country a fully developed baby just before birth or one moment after conception have no worth unless the mother says they have worth. Who are these murderous god-like creatures called mothers? 60 million notches on their belts are quite a death toll. They rate right up there with the great mass murderers of history.

    I don’t know of a way to prove this, but I would guess the vast majority of abortions would not take place if the father said, “Let us raise this child together.”

    If abortion were illegal, many of them would do just that. But since it’s legal, they see the mother not having an abortion as her forcing an unwanted child upon them.

    • #13
  14. The Question Inactive
    The Question
    @TheQuestion

    Majestyk:

    Tom Meyer, Ed.:When we’re talking about a fetus at such an early stage of life, the fetus has never contained a self, at least in no way that can be demonstrated. That we might ban or limit early-term abortion on the ground that it’s wrong for us to do regardless of whether or not its murder is a separate question.

    There are elements which make up murder – the most basic being habeas corpus.

    Lacking a body on which to make the case (which is what we’re facing in most of these early term situations) is a serious stumbling block.

    I agree. In general, the lack of a body makes murder much harder to prosecute. I don’t think that means the inalienable rights of the victim are in any way diminished, but just that the authority of the state to protect those rights is diminished. If I travel out of Texas to another state, my right to life is not diminished, but the power of the state of Texas to protect my right to life is greatly reduced.

    • #14
  15. Mike Rapkoch Moderator
    Mike Rapkoch
    @MikeRapkoch

    Tom Meyer, Ed.:

    Majestyk: Why should early-stage fetuses have rights short of those we grant people? That is primarily because, as a practical matter, we have limited ability to grant them such rights. At this point of its development, this creature is no larger than the tip of a pin and is not morphologically identifiable as a human; i.e., it’s indistinguishable in features and ability from a similarly aged fetus of other mammals. It lacks a rudimentary nervous system and, consequentially, the ability to feel pain. Moreover, it is functionally impossible to detect and thus, it seems impractical for the state to be expected to protect the rights of citizens who cannot be located, and whose existence can not be determined.

    I know I’m in a minority here, but I find this persuasive, if not of abortion’s morality, than at least of its difference from murder.

    When we’re talking about a fetus at such an early stage of life, the fetus has never contained a self, at least in no way that can be demonstrated. That we might ban or limit early-term abortion on the ground that it’s wrong for us to do regardless of whether or not its murder is a separate question.

    This is the question of personhood which, although in my view it shouldn’t be, is a tricky issue. Maj and I are going to do a follow-up on this and other issues. There are just too many issues for one argument.

    • #15
  16. Brian Clendinen Member
    Brian Clendinen
    @BrianClendinen

    Jojo:

    Roadrunner:In our country the convenience of the mother takes precedence over the life of the baby at any stage. In our country a fully developed baby just before birth or one moment after conception have no worth unless the mother says they have worth. Who are these murderous god-like creatures called mothers? 60 million notches on their belts are quite a death toll. They rate right up there with the great mass murderers of history.

    I don’t know of a way to prove this, but I would guess the vast majority of abortions would not take place if the father said, “Let us raise this child together.”

    If abortion were illegal, many of them would do just that. But since it’s legal, they see the mother not having an abortion as her forcing an unwanted child upon them.

    I have not looked lately but it used to be two/thirds of all abortions were done by married woman. Considered married people have a lot more sex it would make sense they have more abortions.

    • #16
  17. Roadrunner Inactive
    Roadrunner
    @Roadrunner

    Tom Meyer, Ed.:

    Roadrunner:

    Tom Meyer, Ed.: So do you think there’s no moral distinction between an abortion at seven weeks and one at seven months?

    No that is what the Supreme Court found in our Constitution.

    And you?

    They look like human life, like you. When you get to the particulars my seven week children had a lot more value than you at least to me. I’m not looking for that god-like role though. I don’t think I would do well with it either.

    • #17
  18. Roadrunner Inactive
    Roadrunner
    @Roadrunner

    Jojo: I don’t know of a way to prove this, but I would guess the vast majority of abortions would not take place if the father said, “Let us raise this child together.”

    I wouldn’t take blame from my kind for this awful state of affairs but nobody gave us that god-like power. If I kill someone, even one of those seven week babies, there are earthly consequences.

    • #18
  19. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Tom Meyer, Ed.:

    Majestyk: Why should early-stage fetuses have rights short of those we grant people? That is primarily because, as a practical matter, we have limited ability to grant them such rights. At this point of its development, this creature is no larger than the tip of a pin and is not morphologically identifiable as a human; i.e., it’s indistinguishable in features and ability from a similarly aged fetus of other mammals. It lacks a rudimentary nervous system and, consequentially, the ability to feel pain. Moreover, it is functionally impossible to detect and thus, it seems impractical for the state to be expected to protect the rights of citizens who cannot be located, and whose existence can not be determined.

    I know I’m in a minority here, but I find this persuasive, if not of abortion’s morality, than at least of its difference from murder.

    I am not commenting on the premise of the piece, but I want to quibble a bit on the idea of murder. Murder, with exception to psychosis, is the removal of those who are an inconvenience. Whether we are talking about the inconvenience of a witness to a crime, an inconvenience to the fulfilling of one’s desires, or the inconvenience of having care for another human being, all point to a reason to murder.

    • #19
  20. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Majestyk:

    Tom Meyer, Ed.:When we’re talking about a fetus at such an early stage of life, the fetus has never contained a self, at least in no way that can be demonstrated. That we might ban or limit early-term abortion on the ground that it’s wrong for us to do regardless of whether or not its murder is a separate question.

    There are elements which make up murder – the most basic being habeas corpus.

    Lacking a body on which to make the case (which is what we’re facing in most of these early term situations) is a serious stumbling block.

    Not all murders require the need for a body to find a conviction. In fact the definition of murder does not mention a body only “the killing of another human being under conditions specifically covered in law.” Now we can argue the definition of “human” but there is not requisite need for a body to satisfy the definition of murder.

    • #20
  21. Jamie Lockett Inactive
    Jamie Lockett
    @JamieLockett

    Robert McReynolds:

    Tom Meyer, Ed.:

    Majestyk: Why should early-stage fetuses have rights short of those we grant people? That is primarily because, as a practical matter, we have limited ability to grant them such rights. At this point of its development, this creature is no larger than the tip of a pin and is not morphologically identifiable as a human; i.e., it’s indistinguishable in features and ability from a similarly aged fetus of other mammals. It lacks a rudimentary nervous system and, consequentially, the ability to feel pain. Moreover, it is functionally impossible to detect and thus, it seems impractical for the state to be expected to protect the rights of citizens who cannot be located, and whose existence can not be determined.

    I know I’m in a minority here, but I find this persuasive, if not of abortion’s morality, than at least of its difference from murder.

    I am not commenting on the premise of the piece, but I want to quibble a bit on the idea of murder. Murder, with exception to psychosis, is the removal of those who are an inconvenience. Whether we are talking about the inconvenience of a witness to a crime, an inconvenience to the fulfilling of one’s desires, or the inconvenience of having care for another human being, all point to a reason to murder.

    That seems like an awfully convenient formulation in the context of an abortion discussion.

    • #21
  22. Jamie Lockett Inactive
    Jamie Lockett
    @JamieLockett

    Robert McReynolds:

    Majestyk:

    Tom Meyer, Ed.:When we’re talking about a fetus at such an early stage of life, the fetus has never contained a self, at least in no way that can be demonstrated. That we might ban or limit early-term abortion on the ground that it’s wrong for us to do regardless of whether or not its murder is a separate question.

    There are elements which make up murder – the most basic being habeas corpus.

    Lacking a body on which to make the case (which is what we’re facing in most of these early term situations) is a serious stumbling block.

    Not all murders require the need for a body to find a conviction. In fact the definition of murder does not mention a body only “

    Please describe how a murder would occur to a human absent a body.

    • #22
  23. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Robert McReynolds:

    Majestyk:

    Tom Meyer, Ed.:When we’re talking about a fetus at such an early stage of life, the fetus has never contained a self, at least in no way that can be demonstrated. That we might ban or limit early-term abortion on the ground that it’s wrong for us to do regardless of whether or not its murder is a separate question.

    There are elements which make up murder – the most basic being habeas corpus.

    Lacking a body on which to make the case (which is what we’re facing in most of these early term situations) is a serious stumbling block.

    Not all murders require the need for a body to find a conviction. In fact the definition of murder does not mention a body only “the killing of another human being under conditions specifically covered in law.” Now we can argue the definition of “human” but there is not requisite need for a body to satisfy the definition of murder.

    Also I think the stumbling block is “under conditions specifically covered in law.” It is not the need for the baby to have human form, or body as you phrase it, but the need for the law to recognize that the baby is “another human.”

    • #23
  24. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Jamie Lockett:

    Robert McReynolds:

    Majestyk:

    Tom Meyer, Ed.:When we’re talking about a fetus at such an early stage of life, the fetus has never contained a self, at least in no way that can be demonstrated. That we might ban or limit early-term abortion on the ground that it’s wrong for us to do regardless of whether or not its murder is a separate question.

    There are elements which make up murder – the most basic being habeas corpus.

    Lacking a body on which to make the case (which is what we’re facing in most of these early term situations) is a serious stumbling block.

    Not all murders require the need for a body to find a conviction. In fact the definition of murder does not mention a body only “

    Please describe how a murder would occur to a human absent a body.

    I am reading Maj’s above statement to mean that one would need a body–corpse–to make the charge of murder. To your point, “body” can have many forms. An amoeba has no distinctive shape but is a body nonetheless.

    • #24
  25. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Also you are trying to conflate two separate definitions I think, “human” and “body.” On a molecular level how do you know you are looking at a human and not a cow? Are there no other ways to determine “human” aside from the need of a “body”?

    • #25
  26. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Jamie Lockett:

    Robert McReynolds:

    Majestyk:

    Tom Meyer, Ed.:When we’re talking about a fetus at such an early stage of life, the fetus has never contained a self, at least in no way that can be demonstrated. That we might ban or limit early-term abortion on the ground that it’s wrong for us to do regardless of whether or not its murder is a separate question.

    There are elements which make up murder – the most basic being habeas corpus.

    Lacking a body on which to make the case (which is what we’re facing in most of these early term situations) is a serious stumbling block.

    Not all murders require the need for a body to find a conviction. In fact the definition of murder does not mention a body only “

    Please describe how a murder would occur to a human absent a body.

    Also for some reason what I wanted to write got chopped off. Here is the whole quote Jamie:

    Not all murders require the need for a body to find a conviction. In fact the definition of murder does not mention a body only “the killing of another human being under conditions specifically covered in law.” Now we can argue the definition of “human” but there is not requisite need for a body to satisfy the definition of murder.

    • #26
  27. Jamie Lockett Inactive
    Jamie Lockett
    @JamieLockett

    Robert McReynolds:Also you are trying to conflate two separate definitions I think, “human” and “body.” On a molecular level how do you know you are looking at a human and not a cow? Are there no other ways to determine “human” aside from the need of a “body”?

    At a molecular level most humans have no difference than any other carbon based life form, heck it might be impossible to tell the difference between a human and a chair.

    At a cellular level the only difference would be genetics, but then since every cell in the human body has the same genetics could we prosecute someone for murder if they cut off a lump of skin?

    • #27
  28. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Jamie Lockett:

    Robert McReynolds:

    I know I’m in a minority here, but I find this persuasive, if not of abortion’s morality, than at least of its difference from murder.

    I am not commenting on the premise of the piece, but I want to quibble a bit on the idea of murder. Murder, with exception to psychosis, is the removal of those who are an inconvenience. Whether we are talking about the inconvenience of a witness to a crime, an inconvenience to the fulfilling of one’s desires, or the inconvenience of having care for another human being, all point to a reason to murder.

    That seems like an awfully convenient formulation in the context of an abortion discussion.

    Well Jamie if you look at the numbers provided by the Guttmacher Institute that show who are seeking and why they are seeking abortions, you will find that convenience is very, very high on the list. And murder–although not legally, but philosophically–is simply the extinguishing of a human life to prevent some form of inconvenience. Again, with the exception of psychosis for instance.

    • #28
  29. Jojo Inactive
    Jojo
    @TheDowagerJojo

    Roadrunner:

    Jojo: I don’t know of a way to prove this, but I would guess the vast majority of abortions would not take place if the father said, “Let us raise this child together.”

    I wouldn’t take blame from my kind for this awful state of affairs but nobody gave us that god-like power. If I kill someone, even one of those seven week babies, there are earthly consequences.

    I guess my point is, if it were the man’s god-like decision, there would not be fewer abortions. There are probably many more cases where the man wants an abortion and the woman refuses and bears the child, than cases where the woman has an abortion without the consent/encouragement/pressure of the father.

    • #29
  30. Robert McReynolds Inactive
    Robert McReynolds
    @RobertMcReynolds

    Jamie Lockett:

    Robert McReynolds:Also you are trying to conflate two separate definitions I think, “human” and “body.” On a molecular level how do you know you are looking at a human and not a cow? Are there no other ways to determine “human” aside from the need of a “body”?

    At a molecular level most humans have no difference than any other carbon based life form, heck it might be impossible to tell the difference between a human and a chair.

    At a cellular level the only difference would be genetics, but then since every cell in the human body has the same genetics could we prosecute someone for murder if they cut off a lump of skin?

    Yeah that’s right, cellular is a better line of argument. But to your point the cutting off of an arm is not “murder” now is it? You could say “attempted murder” but it is not “murder.”

    • #30

Comments are closed because this post is more than six months old. Please write a new post if you would like to continue this conversation.