by Tibor R. Machan
From his book, The Passion for Liberty
(Rowman & Littlefield, 2003), chap.17
Abortion is not (necessarily) murder. It is not murder if a fetus - a.k.a. “unborn child,” as some would have it - is only potentially a human being, not yet actually a human being.[1] Killing such a fetus is thus no more homicide than destroying a seed is killing a plant or flower.
I wish to spell out a view on abortion that escapes the criticisms leveled at a similar treatment of the topic, namely, Ayn Rand’s. Though my own position is something of a departure from Rand’s, it argues in the same spirit.
The main question involved in the abortion debate is: When does a human being, qua human being, come into existence? As Feinberg (1980, 184) poses the question: “At what stage, if any, in the development between conception and birth do fetuses acquire the characteristic (whatever it may be) that confers on them the appropriate status to be included in the scope of the moral rule against homicide - the rule ‘Thou shalt not kill’? Put more tersely, at what stage, if any, of their development do fetuses become people?”
The question involves many ancient, serious, and divisive philosophical topics, one for which the different schools of philosophy, religions and moral theories have suggested diverse answers. Hindus, Aristotelians, Kantians, utilitarians, Christians of one or another denomination and so forth identify different points of the development of the organism at which a human being comes into existence. Other disputes also arise, based on the clashing ontological and epistemological doctrines that are deployed in discussions of human nature.
In a predominantly Christian culture, the answer to questions of the sort identified by Feinberg are usually sought from the Bible. But the good book does not directly deal with this question. The Christian God commands that no one shall kill another human being, but he doesn’t bother to specify exactly when a human being comes into existence.
Nevertheless, many Christian denominations have committed themselves to the view that a human being emerges into full-fledged existence at conception - notwithstanding the biological fact that, at conception, no individual organism at all exists, but only a zygote. It takes about 14 days after conception before one or more individual embryos come into existence. And inasmuch as it is only at this point that ensoulment could occur, it is only at this point that the number of souls that can be carried in pregnancy could be determined (assuming that souls are indeed immediately awarded to the embryos once they do emerge). Theological thinking cannot resolve the issue definitively, and is not persuasive to the secular mind in any case.
Secular thinking on the issue has hardly presented a uniform alternative so far. Some believe that the human being comes into existence at birth because its identity is determined by social acknowledgement of that identity. Others believe that because of the difficulty of establishing the point of full development of the embryo, we should err on the side of caution and stipulate that a human being exists from the 14th day after conception. Yet others hold the view, implicit in the famous U.S. Supreme Court decision Roe v. Wade, that only after the cerebral cortex has fully developed, at about the 24th week of pregnancy, has a human being emerged. The distinctively human capacity to reason emerges as an actuality only with the development of the cerebral cortex. Prior to that point, the pregnancy involves only a potential, only an undeveloped human infant, like the caterpillar that is not yet a butterfly.
What is especially nettlesome for purposes of public policy in the United States is that the people to be governed by it hail from a great variety of traditions, cultures, and religions. By contrast, a nearly homogenous people populates many other countries, with a preponderance of specific ethnic, religious, or racial groups making up the citizenry. Israel, Iran, and Pakistan are reasonably good examples, although even here diversity exists.
When they spoke, in the Declaration of Independence, of “all men” having been created equal, the American Founders were at least implicitly aware that political communities must not be shaped so as to cater to a specific ethnic, racial or religious group at the expense of others.[2] The Framers, in turn, created a constitution with a Bill of Rights that speaks of the rights of the people as individuals. They drew heavily on both the secular and faith-based political ideas of humanists like Socrates, Aristotle, Aquinas, Thomas Hobbes, and John Locke, among others; and they wrote in broad enough terms so as to embrace both religious and secular interpretations of humanity’s “creation” and nature. (A “creator” may have or lack personhood, may or may not be divine. Arguably nature creates, perhaps even via the process of evolution!)
Now when it comes to identifying basic laws of human communities and to whom these apply, while there is a common core of agreement across traditions and religions, there are many differences as well. Borderline cases can be especially perplexing.
For some, for example, animals are owed the kind of protection of rights that nearly everyone recognizes human beings to possess.[3] For others, the health of their children may be attended to via prayer alone, and without resort to medical services. This raises questions of neglect when the child’s life is in danger and might be saved by standard medicine.
U.S. constitutional law has tended to deal with such issues on the basis of principles that can apply to all members of the population, regardless of specific cultural tradition, religion or ethnic origin. In any case, that would be how such laws ought to address these kinds of cases in a free society and the rule of law. Accordingly, for example, whatever one’s religion teaches, a child must receive the ordinary medical care from his parents or guardians. The killing of a cow is not a crime, regardless of the fact that one may believe very sincerely, on religious grounds, that it is.
There are many various and contradictory beliefs about the abortion issue too. Yet, we are in need of a reasonably stable approach to it that satisfies the requirement of being suitable to a diverse population in virtue of applying a few common premises based on our common humanity. I propose the following: that we ought not wait until a child has been born in the usual sense to consider killing it a homicide; nor ought we consider it homicide to kill someone who has not yet developed, even in the slightest, the familiar distinguishing capacity of a human being - i.e., the capacity (even if not yet exercised) to think or conceptualize.
Around the 24th week of pregnancy, the biological basis for the human capacity to think develops within the fetus. At this point, if one were to abort it, one could reasonably be regarded as killing an infant human being. Prior to this stage of pregnancy, it may well be immoral to abort the fetus, but apart from the strictures of a specific religious tradition, it could not reasonably be construed as homicide.
That seems to be a most sensible approach, whatever one’s own religious or philosophical orientation might be. In a society of objective law, it would be wrong to convict someone of killing a human being if by normally available means one simply cannot identify the victim to be a human being - but only an entity that may eventually become one. Under such circumstances, the pregnant woman’s rights to life, liberty and the pursuit of happiness must be accorded full weight and legal protection. Similarly, one cannot convict a killer of a cow or a rhesus monkey of homicide just because a certain religious or philosophical tradition would classify it as such. Doing so would undermine due process, prejudge whether a charge of murder or manslaughter or even negligent homicide could be made to stick. (Indeed, one way to deal with the fact that many believe that even the earliest abortions are homicide and possibly one or another degree of murder is to test legal actions taken against such persons, see if the case can be made that they have murdered a human being!)
Some have argued that the identity of a person remains constant from conception to death. They are in error. The reasons given vary but one is of some importance here since my own proposal rests on certain Aristotelian ideas, ideas also invoked by pro-life advocates. Gregory R. Johnson and David Rasmussen write, for example, that a “basically Aristotelian framework would seem an unlikely foundation for a defense of abortion on demand, for the simple reason that Catholic natural law moralists use essentially the same premises to argue that abortion on demand is murder” (Johnson and Rasmussen 2000, 246).
This assertion is misleading. After all, Thomas Aquinas, the quintessential Roman Catholic natural law moralist, believed that not until the 24th or so week does a human being come into existence. That is when “quickening” or the life of a human being begins.[4] So at least one major Roman Catholic Aristotelian–the one whose thought would matter significantly in this discussion–is closer to a pro-choice position than to the pro-life critics on this topic.[5]
Whether or not Aquinas or any particular Roman Catholic position is correct, my point here is simply that a broadly Aristotelian perspective does not place one ineluctably in either camp, sans more specific argumentation.
Certainly, the key for this issue depends on what constitutes a human identity. For some parties to the discussion, those animated by “identity politics,” personal identity consists primarily of one’s heritage - one is always most fundamentally a Welsh, Irish, Italian, Croatian or Serb individual.[6] For others, identity has much to do with gender or sex or even age. But all of these are relatively superficial features, as important as they may be. Most fundamentally, one’s identity consists in having in full measure those attributes that make one the kind of being that one is; and a human being is a rational animal, a being of volitional consciousness. This rational and moral capacity is the trait that most fundamentally distinguishes him from other animals, and in virtue of which it makes sense to speak of such moral concepts as “rights” which come into play when considering an issue such as abortion.
So let us consider human development from potentiality to actuality. At conception, only a “pre-embryo” exists. As biologist F. M. Sturtevant (1996, 16) points out, this pre-embryo “consists of the trophoblast, and a few cells comprising the embryoblast.” He notes that “before day 14, when the embryo can first be said to exist, the embryoblast can develop into an embryo proper, a tumor, a hydatidiform mole, a choriocarionoma (i.e., cancer), twins, or triplets, or, in at least two-thirds of the cases, nothing at all (due to genetic defects).” Sturtevant adds that “until the primitive streak appears at day 14, there is no human individual.” This means that no person with an identity can exist prior to day 14 after conception. But even after that point is reached, there is no human individual - in the sense of an organism possessing the distinctively human conceptual capacity - until much later in the embryo’s development.
Johnson and Rasmussen object that if one “wishes to maintain that an unborn child [!] is not an actual human being, but merely a potential one, then we are entitled ask: What kind of being is it actually?” (Johnson and Rasmussen 2000, 248)
The answer is that it is - has the identity of - a potential human being, or a human fetus (not an “unborn child,” a label which begs the question). Prior to the 24th week or so, the fetus does not yet possess the capacities in light of which we assign and protect rights; they are a potential. But it has the (actual) capacity to develop those capacities, the means to proceed further. Indeed, for Aristotle, eggs are potential chicken but do possess an identity: the identity of chicken eggs, which includes the potential to develop into chicken.
The killing of a human fetus is then arguably no more a case of homicide, let alone murder, than, say, the killing of a human tooth, appendix or kidney (unless the death of those parts results in the death of the entire human being). That is to say, being alive is not sufficient to confer upon a cell or an organism the rights-bearing status of a human being.
There is much that is implied by all this but what matters here is that any individual human being who lacks the capacity for generating at least rudimentary ideas (one manifestation of which is the ability to communicate by language) cannot be regarded as a “rational animal” in point of fact, even if there might be reason in a particular context to treat him as such. Of course, we are not talking about instances when one is asleep or under anesthesia. But if what seems to be a human individual is incapable of any manner of concept formation whatever, and simply lies around as a vegetable as his normal and unalterable state, then we may plausibly raise the issue of whether the person thus debilitated is actually a human being proper at all, or merely appears to be so upon first inspection.
Of course, these issues are widely debated and new light might be shed upon them at any time. It is the kind of issue we run across at the edges of typical instances of some kind of thing. These are “borderline cases” and it is unnecessary to pretend to some kind of finished theory here, although we do hve enough at hand to give what constitutes a decisive answer for the time being. The presumption, then, should be in favor of the pro-choice position, given that in the case of the right to freedom of choice of adult human beings, even though the choice may be wrong on other grounds, is well established, while that of zygotes and embryos is clearly not.
In a civilized country no one would think of allowing the killing of a ten year old child, nor would anyone debate (this side of a concentration camp or gulag) whether a healthy forty year old adult should be used for organ donation against his or her will. But we may legitimately debate whether a ten-week-old fetus might be killed, just as we may legitimately debate whether a brain-dead adult might be used as an organ donor or whether it is okay to help a terminally ill and suffering patient commit suicide or again whether a fifteen year old is a child or adult for various purposes. The unusual and borderline cases cannot be handled with the kind of confidence afforded typical cases. But it is by reference to the context established by the normal case that we can determine, first, what even constitutes a borderline case; and, second, what sorts of principles we must deploy to grapple with such borderline cases.
As best as we can tell so far, the distinctively human capacity to reason does not emerge until the 24th week of pregnancy. Thus, for purposes of law the pro-choice position should prevail until the 24th week of pregnancy, and the pro-life position thereafter. And this has the added advantage of keeping at bay yet another potential bureaucracy that would, given the hidden status of “unborn babies,” invade the private lives of millions of people who may even be required to report on whether they have engaged in intercourse, given that such engagement may produce a rights bearing baby who is owed effective police protection against, for example, careless miscarriages or other kinds of foul play.
In a free society the default position in a system of just laws must be that evidently rights bearing human individuals are free until it has been proven that they have freely chosen to become incarcerated by virtue of having violated others’ rights. This is a powerful obstacle to the abuse of governmental power and in the abortion controversy it would seem to favor the pro-choice and not the pro-life case.
