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Not All Abortions Are Equal
Editor’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:
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.
Published in Domestic Policy, Law, Science & Technology
And actually the molecular level argument still holds as I assume that the argument is that in the early stages of pregnancy the baby is not granted human status because of the state it is in. Well what defines “human”? Shape of body? Cellular structure? How can one tell upon sight what is and is not “human” in the case of pregnancy of a human?
Sorry but there was an explosion in Paris and a shootout is underway. Can someone check if Claire is okay?
I’ll see what I can find out.
Great post.
I can’t believe a conservative would write that it is up to the government to decide which rights “we” should grant to people.
I think this quote is emblematic of the problem throughout your entire essay. You continually illustrate the various ways that make a fetus different from the rest of us and definitively state the these differences mean that we have no obligation to protect the fetus.
A tenuous relationship to society–> no rights.
Gain of neurologic activity–>rights.
Loss of neurologic activity—>??
Rights are granted based on appearances? Is there any doubt that an embryo in a human’s uterus is a human, regardless of its appearance?
I think you are on very thin intellectual ice when you argue (in a country that was founded based on ‘inalienable rights’ granted by our Creator) that we can/sh0uld produce a list of qualities that determine when we “grant” someone rights.
This illustrates the second error in your essay. You paint a picture that suggests that all laws must be enforced without discretion and without rest until the illegal activity is abolished, regardless of the damage done to civil rights.
Would you argue against laws against tax evasion simply because it would be impossible to eradicate it without having surveillance cameras in every garage sale?
Should we abolish laws against murder simply because eliminating murder requires a police state?
I hope my reductio ad absurdem fallacy illustrates your strawman fallacy.
It is entirely possible, indeed utterly commonplace, to enact laws without demanding the entire society needs to be re-ordered so that the law can be enforced without limit.
No, I’m saying that there are tradeoffs that must be considered between the reality of enforcing a particular law and the realistic expectation of having the law followed.
I don’t like symbolic laws. It think they breed contempt for the law in general, and so it goes when we pass well-meaning but unenforceable laws.
I agree with SoDakBoy. There are unique qualities that we associate with human persons: intelligence, emotion, awareness. I certainly don’t think that a zygote or an embryo has those qualities. However, those qualities are not things that exist on their own. They are emergent properties of a living human being. It is sometimes said , in defense of abortion, that a fetus is not a person, but rather is becoming a person. I think that it is true that a zygote/embryo/fetus is becoming the person they are going to be, but that doesn’t mean that the fetus is not a person yet. Becoming the person that you are going to be is exactly what it is to be alive. An organism that is no longer in the process of becoming something else is dead.
It is true that potential children do not have rights, but embryos are not potential people. The nonexistent offspring of a man and a woman whose egg and sperm have not yet joined are potential people.
Certainly you recognize that people can be found mentally incompetent, and that this significantly reduces their rights, correct?
Again, we draw distinctions between fully formed people and fertilized eggs; but even in either extreme there are times when we can ethically take actions which result in the death of that being.
My Grandfather’s lung collapsed (because of pneumonia) and he fell into a coma. He was being kept alive by the administration of concentrated oxygen, but his normal respiration couldn’t keep him alive.
My Grandmother made the decision to suspend life support, and my Grandfather died. This was entirely ethical because my Grandfather could no longer breathe on his own.
So, there are times when we can take actions which directly end another person’s life and it isn’t murder.
Maybe yes, maybe no. We have all been sold a bill of goods with regard to sex with no consequences. Women, however, were granted that power and there are 60 million dead human beings as a result. I wouldn’t want a power like that.
The described actions did not “directly” end your grandfather’s life. She let the normal process of his illness proceed until he died a natural death. That is radically different than taking a positive action with the intent to kill him. What you are describing with your grandfather is analogous to allowing miscarriages to occur. They are not analogous to allowing one human being (an abortionist) to kill another human being.
Yes, but not to the point of taking away inalienable rights.
The number of cells has little relevance in determining whether a body is a piece of tissue or a complete organism. A piece of tissue shed from a body might contain billions of cells, but is not a human being. In contrast, with a zygote, one cell comprises the entirety of one body. The zygote rapidly cleaves into many smaller cells, but is still one body. If one of those cells becomes separated, that might initiate a new process of development, with the separated cell effectively becoming a new zygote, an identical twin of the original. This is a form of asexual reproduction. We don’t usually think of humans (or mammals in general) as exhibiting asexual reproduction, but in the zygote/early embryonic stage we do.
“There are probably”? Sounds like pure conjecture.
Absent abortion, it’s still in women’s hands whether men become fathers. She can put the baby up for adoption or drop it off at a safe haven without regard to what the father wishes. Women can hold men financially responsible for a child even if it’s conceived by fraud, or in at least one instance I know of, the father was a teenage victim of statutory rape.
Yes, totally. Hard to get figures. Just based on people I’ve known, things I’ve read, etc.- does your experience suggest otherwise?
No one is saying women don’t have control or responsibility. But it is always shared by men in the creation of a pregnancy, though perhaps a statutory rape victim gets a pass. And I believe, as I said, that it’s usually shared by men in the termination of a pregnancy. To the extent that, if they choose, they could often convince the mother not to abort. The decision is the woman’s, but men usually have influence.
Completely unpersuasive to me. You said it yourself, the conceived embryo is a human being. There are stages to humanity. An embryo is one stage, just a like a new born, a toddler, a teen, a geriatric. That human being has a right to life.
That’s fine – but that doesn’t change that this makes you a tiny minority in that regard and politically, your position is a poison pill for conservative politicians.
We can’t expect to win holding what even Mike Rapkoch admits is an extreme position.
The poison pill is the pro-immigration Marco Rubio. Abortion was permanently dictated in 1972 and will serve as only a minor distraction in 2016 as Hillary tries to change the subject whenever needed. Forty some years after Roe we now can yank the baby’s head out of the woman, puncture the skull, suck out the brains and then rip the nearly term body of the baby right out of the mother satisfying judges to all legalities. In some states we can even off the little buggers if they miraculously survive the abortion even after they are born. The mother never need look at the dead body of her young as they are sold off for medical experiments. Maybe our Supreme Court will decide to follow some left wing ethicists and take it to the other side of birth. Thank God we are not the ignorant barbarians that are ancestors were. They sure were a blood thirsty bunch and not the Darwinian success story that we all are. It will be an exciting time for hip sophisticated engineers. Who is the radical again?
Placing politics above human life seems a morally bankrupt position to me.
That said I will return to my hobby horse – why let the perfect be the enemy in the good.
While I agree that the zygote is a full human being with a right to life, I do think that the ability to distinguish between contraception and abortion gets a little fuzzy in the earliest stages of pregnancy. Birth control pills prevent conception, but as I understand it sometimes prevent implantation of an embryo. I think that the deliberate killing of an embryo violates its right to life (I call the embryo “it” because it doesn’t have sex organs yet). However, it seems to me that it would be impractical to prosecute and convict someone for preventing the implantation of an embryo. I’m not a physician or a lawyer, but that’s my impression.
I’m ambiguous about the morality of contraception, but I don’t think it should be illegal.
Is it morally bankrupt to say that your personal position is that you’re against abortion because there is reasonable suspicion that you’re killing a potential person but that you’re skeptical of the idea that the state ought to be used to enforce your preference on what is (admittedly) a murky subject?
I agree though, why let the perfect be the enemy of the good? My hope is that abortion would stay safe, legal and above all: rare. There are always corner cases that defy hard and fast rules unless the position one takes is absolutist.
I am skeptical of such claims because I don’t think that this is an appropriate area for the state to intrude upon – up to a point. Because we can’t agree what that point is (either all or none depending upon where you’re at) the best I think we can do is allow people to deal with the issue as they see fit – again – up to a point.
I think it’s fair to point out that practical politics has to be a consideration, and we have a supermajority of people who agree that late-term abortion is abominable – so let’s use that as an appropriate expression of the body politic’s will and be satisfied until you can convince larger majorities to push the limit further back.
That wasn’t the argument you were making in that particular comment – you said that it was a bad idea to espouse those positions because it cost us elections. I think that is a profoundly immoral statement when it comes to human life.
Then allow me to clarify: I don’t place the same value on the life of an embryo as I do on a fully grown and developed human being.
I don’t think that is a morally bankrupt position, being as it is eminently justifiable given the attitude that plenty of pro-lifers espouse towards the fate of spontaneously aborted embryos. We have no obligation (or practical means) to save every one and we shouldn’t be in the business of scolding people who don’t view them as being fully fledged people.
To force political candidates to hold that position is similarly suicidal.
Is that less bankrupt? :)
I do not think that your position is morally bankrupt even though I don’t happen to share it. However, how can you ask those people who truly believe that embryo to be a human being not to express that belief or to demand those that represent them protect that life? You are asking those that disagree with you to behave in a fashion you yourself refuse to behave. You scold pro-lifers for their desire to hold their representatives to their beliefs, while stating it is illegitimate for for them to do the same.
Its a rather curious argument.
Pro lifers are in the position of suffering from the dissent of the majority – that is, the majority of people don’t agree with their extreme position that embryos = people.
It’s one thing to have this belief and it’s another thing to insist that other people (who have soundly rejected that position) must accept it or are therefore evil. What compromise can there be with evil, after all?
If the test of whether or not you are evil is that you must agree that embryos are people, then around 70% of people must be evil. I refuse to believe that. Society couldn’t function if evil were that prevalent. The relatively small percentage of people who are animated by this apparently aren’t persuasive enough to get more than a small plurality of public support.
Not all popular movements are the equivalent of Hitler’s elevation to Chancellor. Reasonable people can disagree on this, but some people don’t want to hear that.
Are you arguing that right and wrong is up for democratic debate?
No, I’m arguing that pro-lifers don’t have a monopoly on morality and that plenty of moral people disagree with them on this issue. They do themselves more harm than good by insisting otherwise.
I’ll just point to the “shooting mothers who get abortions” post as example #1.
That’s fine, and I agree with you, but that doesn’t mean they shouldn’t advocate for their position as you have stated above because it is politically expedient.
It’s fine for them to advocate for it – it’s isn’t fine for them to premise their whole support for a candidate on that single issue. That says more to me about the nature of single-issue voting than it does about this particular issue. There are a basket of other issues to consider, and disqualifying a candidate because of their failure to toe the line on this issue is self-defeating.