Sorry for not responding earlier to the comments to my post Abortion at the Democratic Convention and at the Upcoming Debates (here). Thanks to everyone who read my original post and responded. With the exception of one (bizarre) comment, this is precisely the sort of spirited yet respectful dialogue that MOJ seeks to inspire. What follows is my reply to several of the commentators. I place this reply in a separate post because it is rather lengthy, and as a way of encouraging others who might not have followed the comments thread to be included in the conversation. It will be interesting to see how abortion comes up in the second presidential debate this evening.
Eapen Chacko: There are two main sources of abortion statistics: the Guttmacher Institute and the Center for Disease Control (see here, here, and here). There are problems with each: the CDC’s data is incomplete whereas the Guttmacher Institute’s figures consist not only of hard numbers but of estimates. (See here at footnote 203). Each of these sources includes some of the information called for in the questions you pose, but not all of what you seek. As Michael New points out (here), abortion providers should be subject to much stronger reporting requirements than those currently in place.
Paul Horwitz: To begin with, I didn’t take your first comment as disingenuous. I took it as a request for clarification made by a friend engaged in serious conversation and acting in good faith.
In saying that “The humanity of the developing child is not a moral or theological position, but the conclusion of science” I meant that the judgment as to whether a given thing is a human being is a matter of scientific, empirical judgment, not normative judgment (whether philosophical or religious).
Obviously, the two kinds of judgment can bleed into one another. A person’s moral and religious beliefs may influence the empirical conclusions that one reaches, but they need not.
It is one thing to determine whether a particular mineral is gold (Au) or pyrite (“fool’s gold”). It is quite another thing to determine that gold ought to be highly valued and sought after and that “fool’s gold” ought not be. It is one thing to say what a thing is and quite another thing to say how it ought to be treated. Scientific judgment involves a different methodology and different set of premises than normative judgment. Further, I do not believe that all definitional questions in science are “inevitably value-laden.” They surely can be, but they need not be. Recently, astronomers engaged in a public debate as to whether or not Pluto should be classified as a “planet.” Was this value-laden? One could imagine an analogous debate as to whether a given storm constituted a “hurricane” or recently discovered plant constituted a new species. Scientists are of course subject to the same failings that we all suffer from – the intrusion of ego, ambition and pride, among them. But we can, I think, also envision the discernment of criteria and the exercise of scientific judgment in which these extraneous factors are not present.
In referring to the “humanity” of the entity in the womb, I am referring to it’s status in the eyes of science – the judgment of what kind of thing it is, not how it should be valued. Surely “humanity” can refer to a host of other qualities – and that may be what you had in mind – but that is not what I meant.
Although you express some skepticism as to whether science concludes that the entity in the earliest stages of human development is a human being, there is substantial scientific literature that suggests otherwise (see here).
Now, it is also the case that currently, under American law, every being recognized as a “human being” also enjoys the benefit of law. Indeed, every human being so recognized also enjoys the status of a legal “person” – the status of a rights-holder who enjoys immunity from certain forms of government coercion and the benefit of government protection from other persons. The status of legal personhood sets an entity apart from things that have no special dignity and that can be disposed of or otherwise manipulated by those in power. There are of course exceptions in our legal history to the full inclusion of all human beings within the category of legal persons – the institution of slavery and cases like Buck v. Bell come readily to mind – but these are not the kinds of comparisons that proponents of abortion are anxious to draw.
And that is why so many supporters of abortion resist the conclusions of science – why many are in fact anti-scientific. They know that under our law, all human beings presumptively enjoy the status of legal persons. By denying the humanity of the unborn child they seek to avoid making the argument that a certain class of human beings should not enjoy this presumption and the protection it affords.
Even if they lose this argument (i.e. the argument for the exclusion of certain human beings from the protective status of legal personhood) proponents of abortion may still argue that abortion should be permitted (e.g. Judith Thomson’s well-known violinist argument – see here) but that argument is problematic as a matter of moral philosophy, and its conclusion is even more difficult to reach in law.
David Nickol: (Comment 1): I agree that Romney’s position on abortion – allowing an exception in the cases of rape, incest, and fetal abnormality – does not fit neatly with what I suggested in my original post. And, I should add, I would not subscribe to those exceptions myself – only the life of the mother where the state has no interest in choosing the life of one innocent human being over another. In such a case, the only good that the state can hope to realize is the autonomy of the mother. This is not so in any of the other three traditional “hard” cases. The life of the mother and the life of the unborn child can both be preserved, and, in that instance, the child’s interest in life outweighs the mother’s interest in autonomy. There is no inconsistency in principle in the law recognizing both the status of the unborn child as a human being and a legal person and an exception to the general ban on abortion where the life of the mother is at stake.
Politics and political persuasion are not simply about consistency of principle (that is supposed to be the virtue of law!). For Romney to make the inconsistency in his position (i.e. his opposition to abortion based on the humanity of the developing child and his acceptance of exceptions for rape and incest) palatable or at least understandable he must, I think, make a political argument – that only a tiny percentage of the over 1.2 million abortions performed each year in this country involve these “hard cases” and that the country has not reached the point where it is open to limiting abortion in those cases, but that it is open to more restrictions in the vast, vast majority of cases where abortion is sought.
Articulating this may be somewhat awkward (as there is indeed an inconsistency as at work) but no more so than President Obama explaining his opposition to third-trimester abortions and sex-selective abortions . . . But wait a minute. The President doesn’t oppose those things does he! Romney could, I think, exploit this. The point is that consistency of principle may be a political disadvantage given where the country is on the subject and in the context of a political (as opposed to a scholarly) debate.
(Comment 2): You say: “To say that a zygote is human or to say that an embryo or fetus is a human being is to make quite a different statement than to speak of ‘the humanity of the developing child.’" I suppose this could be the case, but the statements are identical in meaning if by “humanity” one means “human-beingness,” that is, the quality and empirical status of being a human being, a member of the species homo sapiens. This is precisely how I used the term, and as such, there is no difference in meaning. Perhaps you mean something different in speaking of “the humanity of the developing child” and saying that “an embryo or fetus is a human being.” If so (and I take this to be the case) please explain.
Furthermore, you say that I am “asserting personhood” on the part of the entity in the womb by “ascribing humanity” to it. As before, here it is critical to be precise in one’s use of terminology. I use “human” and “humanity” in a purely descriptive sense to refer to an organism that is a member of the human species. Personhood, in the relevant sense is a legal category that grants the entity that enjoys this designation certain rights. The term “person” could be used in a descriptive sense, referring to a organism that exhibits certain characteristics – structures like a beating heart, or functioning brain, or level of achievement, like self-consciousness or the exercise of reason. But in its origins and in its current usage “person” is not a scientific category but a philosophical or theological one.
Descriptive theories of personhood are often used to argue for the contents of legal personhood (e.g. entities that can presently exercise the capacity for reason, but not those that cannot). The problem with this approach is that the selection of descriptive criteria seems patently arbitrary – often they are constructed backwards, taking into account the effect that recognition of one entity’s personhood would have on another (i.e. the child on the mother), and adjusting the definition accordingly to protect the favored entity and exclude the disfavored one (see for example Jed Rubenfeld’s essay here).
By contrast, the judgment of science is that a human zygote, embryo and fetus is, respectively in each stage of its development, a human being – an unbroken continuum marked by characteristics in growth that, by convention, we refer to as different stages of development. And these stages are different in the sense of being distinct, but they are neither separate nor independent. These stages are not different in kind from later stages in the life cycle of the same human organism such as infancy, adolescence, and middle age. As former MOJ contributor Richard Stith wrote in a great essay (here) organic growth is different in kind from mechanical change. In the case of the former, self-directed change takes place without loss of identity, whereas in the case of the latter, change takes place by way of addition or annihilation and replacement directed by that which is external to the thing changed. Put another way, the development of the human embryo or any organism is quite different from the construction of a house of the manufacture of a car on an assembly line.
The entity in the womb is alive. It exhibits a radical discontinuity with the gametes that joined to form it, and with each of its parents -- a human father and a human mother. (As commentator Anonymous notes, in procreation human parents do not generate non-humans). It is not a “part” of either its mother or its father. Rather, it possesses the genetic constitution, functional integration and material continuity of a distinct, new, human organism. As such, it is a human being, albeit one in the earliest stages of human development.
Bill Collier: You correctly note that the texts used in American medical schools make this empirical judgment clear – the entity developing in the womb is a human being. And, as you also note, this point is conceded by some of the more intellectually honest advocates of abortion. You mention Singer and Boonin. I would also add popular writer Naomi Wolfe who in her famous New Republic article (here) decried pro-choice “rhetoric about abortion in which there is no life and no death, [where] we entangle our beliefs in a series of self-delusions, fibs and evasions.” Not suffering from these delusions herself, Wolfe concludes that “Sometimes the mother must be able to decide that the fetus, in its full humanity, must die.”
Like you, I have some respect for those like Wolfe who have the integrity to admit that what is killed in abortion – the identity of what they believe the law should authorize killing – is a human being. I strongly disagree with their normative conclusion – that abortion can be moral and should be legal – but I respect their acknowledgement that the life that abortion terminates is a human life.
