The case against abortion
A striking thing about the American abortion debate is how little abortion itself is actually debated. The sensitivity and intimacy of the issue mean that most politicians and many pundits really don’t like to talk about it.
The mental habits of polarization, the assumption that the other side is always acting with hidden motives or in bad faith, mean that accusations of hypocrisy or simple evil are more commonplace than direct engagement with the pro-choice or pro-life argument.
And the Supreme Court’s outsize role in abortion policy means that the most politically important arguments are carried on by lawyers arguing constitutional theory, at one remove from the real heart of the debate.
But with the court set to hear Dobbs v. Jackson Women’s Health Organization, a direct challenge to Roe v. Wade, it seems worth letting the lawyers handle the meta-arguments and writing about the thing itself. So this essay will offer no political or constitutional analysis. It will simply try to state the pro-life case.
At the core of our legal system, you will find a promise that human beings should be protected from lethal violence. That promise is made in different ways by the Constitution and the Declaration of Independence; it’s there in English common law, the Ten Commandments and the Universal Declaration of Human Rights. We dispute how the promise should be enforced, what penalties should be involved if it is broken and what crimes might deprive someone of the right to life. But the existence of the basic right, and a fundamental duty not to kill, is pretty close to bedrock.
There is no way to seriously deny that abortion is a form of killing. At a less advanced stage of scientific understanding, it was possible to believe that the embryo or fetus was somehow inert or vegetative until so-called quickening, months into pregnancy. But we now know the embryo is not merely a cell with potential, like a sperm or ovum, or a constituent part of human tissue, like a skin cell. Rather, a distinct human organism comes into existence at conception, and every stage of your biological life, from infancy and childhood to middle age and beyond, is part of a single continuous process that began when you were just a zygote.
We know from embryology, in other words, not Scripture or philosophy, that abortion kills a unique member of the species Homo sapiens, an act that in almost every other context is forbidden by the law.
This means that the affirmative case for abortion rights is inherently exceptionalist, demanding a suspension of a principle that prevails in practically every other case. This does not automatically tell against it; exceptions as well as rules are part of law. But it means that there is a burden of proof on the pro-choice side to explain why in this case taking another human life is acceptable, indeed a protected right itself.
One way to clear this threshold would be to identify some quality that makes the unborn different in kind from other forms of human life — adult, infant, geriatric. You need an argument that acknowledges that the embryo is a distinct human organism but draws a credible distinction between human organisms and human persons, between the unborn lives you’ve excluded from the law’s protection and the rest of the human race.
In this kind of pro-choice argument and theory, personhood is often associated with some property that’s acquired well after conception: cognition, reason, self-awareness, the capacity to survive outside the womb. And a version of this idea, that human life is there in utero but human personhood develops later, fits intuitively with how many people react to a photo of an extremely early embryo (It doesn’t look human, does it?) — though less so to a second-trimester fetus, where the physical resemblance to a newborn is more palpable.
But the problem with this position is that it’s hard to identify what property is supposed to do the work of excluding the unborn from the ranks of humans whom it is wrong to kill. If full personhood is somehow rooted in reasoning capacity or self-consciousness, then all manner of adult human beings lack it or lose it at some point or another in their lives. If the capacity for survival and self-direction is essential, then every infant would lack personhood — to say nothing of the premature babies who are unviable without extreme medical interventions but regarded, rightly, as no less human for all that.
At its most rigorous, the organism-butnot-person argument seeks to identify some stage of neurological development that supposedly marks personhood’s arrival — a transition equivalent in reverse to brain death at the end of life. But even setting aside the practical difficulties involved in identifying this point, we draw a legal line at brain death because it’s understood to be irreversible, the moment at which the human organism’s healthy function can never be restored. This is obviously not the case for an embryo on the cusp of higher brain functioning — and if you knew that a brain-dead but otherwise physically healthy person would spontaneously regain consciousness in two weeks, everyone would understand that the caregivers had an obligation to let those processes play out.
Or almost everyone, I should say. There are true rigorists who follow the logic of fetal non-personhood toward repugnant conclusions — for instance, that we ought to permit the euthanizing of severely disabled newborns, as philosopher Peter Singer has argued. This is why abortion opponents have warned of a slippery slope from abortion to infanticide and involuntary euthanasia; as pure logic, the position that unborn human beings aren’t human persons can really tend that way.
But to their credit, only a small minority of abortion rights supporters are willing to be so ruthlessly consistent. Instead, most people on the pro-choice side are content to leave their rules of personhood a little hazy, and combine them with the second potent argument for abortion rights: namely, that regardless of the precise moral status of unborn human organisms, they cannot enjoy a legal right to life because that would strip away too many rights from women.
A world without legal abortion, in this view, effectively consigns women to second-class citizenship — their ambitions limited, their privacy compromised, their bodies conscripted, their claims to full equality a lie. These kind of arguments often imply that birth is the most relevant milestone for defining legal personhood — not because of anything that happens to the child but because it’s the moment when its life ceases to impinge so dramatically on its mother.
There is a powerful case for some kind of feminism embedded in these claims.
The question is whether that case requires abortion itself.
Certain goods that should be common to men and women cannot be achieved, it’s true, if the law simply declares the sexes equal without giving weight to the disproportionate burdens that pregnancy imposes on women. Justice requires redistributing those burdens, through means both traditional and modern — holding men legally and financially responsible for all the children that they father and providing stronger financial and social support for motherhood at every stage.
But does this kind of justice for women require legal indifference to the claims of the unborn?
I think an honest look at the patterns of the past four decades reveals a multitude of different ways to offer women greater opportunities, a multitude of paths to equality and dignity — a multitude of ways to be a feminist, in other words, that do not require yoking its idealistic vision to hundreds of thousands of acts of violence every year.
It’s also true, though, that nothing in all that multitude of policies will lift the irreducible burden of childbearing, the biological realities that simply cannot be redistributed to fathers, governments or adoptive parents. And here, too, a portion of the pro-choice argument is correct:
The unique nature of pregnancy means there has to be some limit on what state or society asks of women and some zone of privacy where the legal system fears to tread.
This is one reason the wisest anti-abortion legislation — and yes, pro-life legislation is not always wise — criminalizes the provision of abortion by third parties, rather than prosecuting the women who seek one. It’s why anti-abortion laws are rightly deemed invasive and abusive when they lead to the investigation of suspicious-seeming miscarriages. It’s why the general principle of legal protection for human life in utero may or must understandably give way in extreme cases, extreme burdens: the conception by rape, the life-threatening pregnancy.
Consider that when Texas put into effect this year a ban on most abortions after about six weeks, the state’s abortions fell by half. I think the Texas law, which tries to evade the requirements of Roe v. Wade and Planned Parenthood v. Casey by using private lawsuits for enforcement, is vulnerable to obvious critiques and liable to be abused. It’s not a model I would ever cite for pro-life legislation.
But that immediate effect, that sharp drop in abortions, is why the pro-life movement makes legal protection its paramount goal.
According to researchers at the University of Texas at Austin, who surveyed the facilities that provide about 93% of all abortions in the state, there were 2,149 fewer legal abortions in Texas in the month the law went into effect than in the same month in 2020.
About half that number may end up still taking place, some estimates suggest, many of them in other states. But that still means that in a matter of months, more than 1,000 human beings will exist as legal persons, rights-bearing Texans — despite still being helpless, unreasoning and utterly dependent — who would not have existed had this law not given them protection.
But, in fact, they exist already. They existed, at our mercy, all along.