Liberty, Equality, and Unborn Human Beings

By "unborn human being," I mean a living human zygote, embryo, or fetus. I shall defend this somewhat controversial usage later in these remarks. By "direct abortion," I mean an act whose object is to destroy an unborn human being. By "indirect abortion," I mean an act whose object is something other than the destruction of an unborn human being, but whose foreseen side effects include causing the death of an unborn human being.

If, as I shall argue, the unborn are human beings possessing a worth and dignity equal to that of other human beings, then direct abortion is prohibited by the moral norm which excludes all forms of direct killing of innocent human beings. Indirect abortion is usually, though not always, morally prohibited. Like other forms of indirect killing, it is usually prohibited because it is usually unfair to the individual whose death is caused, albeit as an unintended side effect. Morally speaking, unborn human beings, like other innocent human beings, have a right not to be directly killed or even to be indirectly killed unfairly.

Should this moral right be protected by law? As human beings, the unborn are not only morally entitled not to be unjustly killed, they are also morally entitled to legal protection against unjust killing. Indeed, like human beings at every stage of development--infants, children, adolescents, and adults--the unborn are morally entitled to the equal protection of the laws. To deny them equal protection is unjust. Just law will, to the extent practicable, forbid unjust feticide just as it forbids other forms of unjust homicide. At the same time, just as the law permits the indirect killing of adult human beings where killing is deemed to be justified (as, for example, in certain cases of self-defense), the law may, and, I believe, should, permit indirect abortion in the rare cases in which it is not unfair.

Since my analysis of the rights and wrongs of abortion hinges significantly on the distinction between "direct" and "indirect" killing, let me begin by clarifying that distinction.

Killing, whether of a fetus, infant, or more fully developed human being (or, for that matter, of a nonhuman creature) is "direct" when one intends (i.e., seeks to bring about) death either as an end-in-itself or as a means to some other end. So there are two forms of direct killing. One intends death as an end, where, or to the extent that, the bringing about of death is not merely instrumental to the achievement of one's goal, but is the precise realization of that goal. By contrast, one intends death as a means where the bringing about of death is, or at least is thought to be, instrumental to the realization of one's goal.

To illustrate the difference between these two forms of direct killing, let me use an example that does not involve abortion. Imagine that the Greens are a stateless people dwelling mainly in refugee camps in the land of the Blues just beyond the border of the land of the Reds. Green terrorists have carried out a fatal mortar attack on Red civilians. The Reds retaliate by bombing the Green refugee camps to avenge these civilian deaths. The goal of the bombing is purely and simply revenge. The Reds accomplish that goal precisely by killing a certain number of Greens. (Let us say that the Reds' desire for revenge will be satisfied by the killing of two hundred Green civilians.) Here the Reds are intending the deaths of Green civilians as an end.

But now let us suppose that the Reds, angry as they are at the Greens, are motivated not by revenge, but rather by the desire to deter future attacks on their civilians by Green terrorists. So they bomb the refugee camps, seeking to kill a certain number of Green civilians (again, let us say two hundred) to give Green terrorists a powerful motive not to carry out any more attacks on Red civilians. Here the Reds are intending the deaths of Green civilians as a means of deterrence. (Of course, revenge and deterrence are not incompatible motives; the Reds could bomb with both goals in mind.)

Now, let me illustrate the difference between direct and indirect killing, staying with the example of the Reds and the Greens. This time the Reds, having been persuaded by one of my lectures that the direct killing of innocent human beings is wrong, are no longer willing to kill civilians either for revenge or deterrence. They confine themselves to the less efficient, more costly, but, let us suppose, morally unproblematic, strategy of going after the terrorists themselves.

The Greens learn about the conversion of the Reds to this new moral view and it gives them an idea: They install their mortars smack in the middle of one of their own refugee camps and begin shelling Red cities. At the same time, they ring the camp with soldiers who have been instructed to shoot any civilian who attempts to flee the camp. Unfortunately for the Greens, however, the Reds were also persuaded by me that indirect killing, where it is not unfair, is not wrong. So, to the Greens surprise, the Reds send a bombing mission to knock out the mortars, despite their awareness that, unavoidably, as many as two hundred civilians will be killed in the bombing. Here the Reds are not intending the deaths of Green civilians either as end or means. Rather, they are accepting these deaths as unintended, albeit foreseen, side effects of knocking out the mortars.

Are you skeptical of this distinction? Consider the counterfactual: If, miraculously, in each of the three cases no civilians are killed, have the Reds accomplished their goals? In the cases I used to illustrate direct killing, plainly they have not; by contrast, in the case I used to illustrate indirectly causing death, just as plainly they have. If, in the latter case, the Reds manage (contrary to what they thought was possible) to silence the mortars without causing the deaths of Green civilians, their goal in bombing is no way frustrated. What this shows is that the deaths of Green civilians, however foreseeable, were, to use the old Latin phrase, praeter intentionem, that is, outside the scope of the intention of the Reds.

Even if the death toll is as high or higher, the intentional structure of the choice to bomb the camp to knock out the mortars differs radically from the intentional structure of the choice to kill civilians for the sake of revenge or even deterrence. Now, that does not mean that the Reds may, with impunity, bomb the camp to silence the mortars whatever the consequences for Green civilians. For, though indirect killing is sometimes not unjust, it can be, and usually is, unfair and therefore no less unjust than direct killing. Thus, traditional casuists, in developing the doctrine of just war, noted that "collateral damage" to civilians must be "proportionate" to the good ends to be achieved by military action. The so-called "proportionality" requirement has principally to do, I believe, with considerations of fairness in the bringing about of bad side effects to others.

Now, most abortions are direct. Their goal is the destruction of the embryo or fetus, and not merely its expulsion from the womb. In most cases, the survival of the fetus, miraculous or otherwise, would frustrate the goal of the abortionist and the woman who has sought his services. We might say of the woman involved that "she does not wish to be pregnant," or, at least, "does not wish to be pregnant at this time." But it is likely the case that she does not wish to be pregnant (primarily) because she does not want to have a child (or, at least, does not want to have a child now, or to have this child). So, if the abortionist "terminates her pregnancy" but fails to secure the death of the fetus, the abortion has been unsuccessful.

Some abortions, however, are indirect. They are literally attempts to terminate a pregnancy, not to end the life of an unborn human being. The death of the embryo or fetus, though foreseen and accepted, is not part of the motivation for its expulsion from the womb. The miraculous survival of the fetus would in no way frustrate the goal of the operation. Indeed, the fetus's survival might well be welcomed by everyone concerned.

Now, there are various reasons why someone who does not seek the destruction of an unborn human being might nevertheless wish to have it expelled from the womb before it is capable of surviving. Consider the most serious reason: The continuation of pregnancy might imperil the mother's life or gravely threaten her health. Other reasons are far from trivial: Pregnancy can be onerous, even debilitating, and childbirth is often extremely painful. Moreover, the professional consequences of pregnancy can be high, costing a fashion model or athlete, for example, significant earnings or opportunities for advancement. Of course, other reasons are less serious: Someone might not want to appear unshapely in a swimsuit at the local pool during the summer.

However, the most fundamental of all human rights is the right not to be unjustly killed. And although not every indirect abortion involves injustice, most do, even when they are requested or performed for serious reasons. To do something which one knows will bring about the death of an unborn child, even for the sake of preserving one's social and economic status, for example, or avoiding the discomforts or pregnancy and pain of childbirth, is seriously unjust. A body of law which respects and protects fundamental human rights will protect the unborn against such injustice.

Direct killing is always unjust. To kill directly is, at best, to reduce a person, equal in worth and dignity to oneself, to the status of a mere means to one's own ends. When the Reds directly kill Green civilians, even as a means of deterring Green terrorism, they effect this sort of reduction. Indirect killing, while not always unjust, is usually unjust, because it is usually unfair. Unfair indirect killing, while it does not reduce its victim to the status of a means, nevertheless radically undervalues the victim's life. The victim of unfair indirect killing is denied his or her due as a person of equal worth and human dignity.

Often enough the unfairness of unfairly, albeit indirectly, causing death is perfectly obvious. The unfairness of a Red bombing raid whose goal was merely to silence a militarily ineffective mortar in the midst of a Green refugee camp because it was keeping Red civilians awake at night would be manifest to any unbiased observer. It would treat the lives of innocent Greens as less important than the mere convenience of Reds. Sometimes, however, the question of fairness or unfairness is not so clear cut: Suppose, for example, that the noise from the mortar was also depriving Red soldiers of sleep and, thus, damaging their effectiveness in protecting Green civilians against deadly terrorist attacks. As in cases of distributive justice, retributive punishment, and other areas in which the principle of fairness controls the moral analysis, there will always be instances of indirect killing the proper moral evaluation of which is difficult. Such cases call for disciplined reflection on the problem in light of a full appreciation of the radical equality of all human beings.

Now, if the unborn are, as I think they are, human beings, and share, as I think they do, in this radical equality, then they are entitled (a) not to be unjustly killed, and (b) to legal protection against unjust killing. For the law to fail to provide this protection is itself unjust. It constitutes an unfair undervaluing by political authorities, or by the people as a whole, of the lives of unborn human beings. It denies the unborn their due equality under the law. Hence, justice requires that feticide should generally be prohibited by law. Justice does not require, however, that the law should forbid every act which foreseeably results in the death of an unborn human being. The law may, and should, permit those indirect abortions, as it permits other instances of indirect killing, that involve no unfairness to the victim.

Are there any such instances? I think that an unbiased observer, fully cognizant of the radical equality of all human beings, including the equality in worth and dignity of a pregnant woman and her unborn child, would find no unfairness in the following rule:

If the life of either the mother or the child can be saved only by some medical procedure which will adversely affect the other, then it is lawful to undertake such a procedure with the intention of saving life, provided that the procedure is the most effective available to increase the overall probability that one or the other (or both) will survive.

Under this rule, an act to save the life of the mother which, unavoidably, albeit foreseeably, results in the death of her unborn child, would be permissible. I think that the formulation is superior, however, to a simple "exception" to the prohibition on abortion where continued pregnancy threatens the life of the mother, because it does not imply that the killing of an unborn human being may rightly or lawfully be chosen as a means to an end; nor does it imply that the life of the mother, though she may justly prefer the preservation of her own life to that of her child, is of intrinsically greater dignity than the life of her unborn child. It respects the principle of the radical equality of all human beings.

What about those cases, mercifully rare, in which the continuation of pregnancy will result in severe, permanent, but nonfatal maternal injury? It seems to me that in at least some cases of this sort, action to prevent such injury is not unfair to the child who will die as a result of, for example, being removed from its mother's womb before it is capable of surviving on artificial life support. Since a huge variety of factors could bear on the question of fairness where the continuation of pregnancy will result in severe and permanent maternal injury, and since the law cannot make the fine discriminations necessary to distinguish fair from unfair discriminations in light of these factors, the law may, I think, justly permit indirect abortion where pregnancy severely and permanently imperils maternal health. Justice would, of course, require that every effort be made to preserve the life of a child who may, in fact, be capable of surviving after premature explusion from the womb. And, to prevent abuse, and the injustice to the unborn that it would occasion, tight controls would be needed to ensure that the so- called "therapeutic exception" did not degenerate into a license to kill unborn human beings in cases in which such killing is plainly unjustified.

Is abortion in the case of forcible rape direct or indirect? I believe that it is often indirect. Typically, I think, victims of rape who become pregnant bear no ill will toward the innocent embryo who, in a certain sense, is also a victim of its rapist-father, and would be willing, were the option available, to have the embryo transplanted into the womb of a woman who was prepared to receive it, or tansferred to an artificial uterus.

Is indirect abortion in the case of rape unfair to the unborn child? This turns out to be a far more difficult question than people on either side of the debate about abortion typically imagine. Although I am inclined to believe that it is usually unfair, a powerful argument to the contrary has been developed. I will discuss this argument in a little while in connection with the (far less plausible) claim that all indirect abortions are permissible because no human being has the right to occupy the body of another human being.

Now, you may say: "Very well, all human beings are equal in worth and dignity and have a right not to be unjustly killed. So direct killing and unfair indirect killing of human beings is immoral and a violation of the right to life, and, to the extent practicable, ought to be illegal. Fine. But that doesn't get us very far, because the real question at stake in the debate over abortion is whether fetuses are in fact human beings. You choose to call them human beings, but unless you can prove that they are human beings, and not merely potential human beings, you are simply begging the question against people who say that we have duties in justice toward them."

Tammy Bruce, the Executive Director of the Los Angeles chapter of the National Organization for Women, was recently quoted as saying:

There is no medical evidence when life begins. The only group on the planet that says they know when life begins is the Catholic Church, and they're guessing.

Harry Blackmun, writing for the majority in Roe v. Wade, declared that it was unnecessary for the Court to "resolve the difficult question of when life begins." He averred that this was a question so mysterious that even "those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus." This was, in fact, Blackmun's predicate for claiming against the State of Texas, which had defended its law against abortion by contending that life begins at conception, that the state may not "by adopting one theory of life. . .override the rights of the pregnant woman."

Now, let us lay aside the important question of whether anything in the Constitution authorized the Supreme Court to overturn the judgment of the State of Texas about when human life begins. Let us simply inquire whether that judgment was reasonable. I shall argue that it is in fact more reasonable than any alternative judgment.

As to the biological facts of human life's beginnings there is actually little disagreement. Virtually any basic embryology text will inform its readers that a new human life begins when a human sperm containing twenty-three chromosomes fuses with a human egg also containing twenty-three chromosomes (albeit of a different kind) producing a single-cell human zygote containing forty-six chromosomes (the number of chromosomes specific to the human species) which are mixed differently from the forty-six chromosomes as found in the mother or father. Unlike the gametes, that is, the sperm or egg, the zygote is genetically unique and distinct from its parents. It produces, as the gametes do not, specifically human enzymes and proteins. It possesses as they do not, the active capacity or potency to develop itself into a human embryo, fetus, infant, child, adolescent, and adult.

Assuming that it is not conceived in vitro, the zygote is, of course, in a state of dependence on its mother. But independence is not to be confused with distinctness. From the beginning, the newly conceived human directs its own integrated organic functioning. It takes in nourishment and converts it to energy. Given an hospitable environment, it will, as Dianne Irving observes, "develop continuously without any biological interruptions, or gaps, throughout the embryonic, fetal, neonatal, childhood, and adult stages--until the death of the organism."[1] Thus, according to Dr. Irving,

The biological facts demonstrate that at conception we have a truly human nature. It is not that he or she [for sex is determined from the beginning] will become a human being--he or she already is a human being. . . .A human zygote or embryo is not a possible human being; nor is he or she potentially a human being; he or she is a human being.[2]

Yale Law Professor Jed Rubenfeld, in a widely admired article in the Stanford Law Review entitled "On the Legal Status of the Proposition that 'Life Begins at Conception,'" asserts the contrary. Arguments that life begins at conception, "though standard in the right-to-life literature, are," he says, "virtually unintelligible." Not just "wrong," mind you, or "inadequate," but "virtually unintelligible." One wonders, then, how they can be advanced by eminent geneticists (such as Jerome Lejeune), embryologists (such as Ward Kischer), and philosophers (such as Elizabeth Anscombe and John Finnis). As it turns out, though, Rubenfeld shows no signs of having examined the writings of such scholars. Although he cites serious scholarly work in his analyses of competing claims that "life begins" at various biological marker events in fetal development, such as the point of fetal viability, and the point of brain development at which interneural connections within the cerebral cortex make possible higher mental functioning, he fails to engage a single serious scholarly defense of the proposition whose legal status the title of his article promises to explore. The sole citation he gives for "these arguments," before declaring them to be "virtually unintelligible," is "a well-known antiabortion pamphlet written by Dr. John Willkie of the National Right to Life Committee." And, to make matters worse, it is unclear whether Rubenfeld has even read this source, for he refers to it only parenthetically as having been discussed by Frances Olsen in a 1989 Harvard Law Review article--an article, by the way, which is plainly proabortion.

Rubenfeld should have examined the scholarly literature. It would have prevented his imagining that the argument that new human individuals begin at conception is based on the bare proposition that "fertilization . . . represents the moment of genetic completeness." In response to the argument that life begins at conception, as he imagines it, he says that "every cell in our bodies is genetically complete," yet no one supposes that every human cell is a distinct human being with a fundamental right to life. But, of course, this misses the point of the argument which establishes that at conception there comes into being, not a mere clump of human cells, but a distinct, unified, self-integrated organism, which develops itself, truly himself or herself, in accord with its own genetic "blueprint." The significance of genetic completeness for the question of whether a distinct human being is present at conception is that no outside genetic information is needed to enable the zygote to mature into an embryo, the embryo into a fetus, the fetus into an infant, the infant into a child, the child into an adolescent, the adolescent into an adult. What the zygote needs to function as a distinct self-integrating human organism, a human being, is already present.

At no point in embryogenesis does the nature of the human being change. As the human organism matures, from conception to death, its nature remains the same. It is human and will remain human. In this sense, as Justice Byron White once remarked, "there is no arbitrary line separating a fetus from a child." Rubenfeld quotes White's remark and then purports to demolish what he takes to be "the argument based on the gradualness of gestation," by observing that

No arbitrary line separates the hues of green and red. Shall we conclude that green is red? That night is day?

But, again, Rubenfeld misses the point of the actual argument, which is not that development is "gradual," but, rather, that it is continuous. The human zygote that actively develops itself is a genetically complete organism directing its own integral organic functioning. As it matures, it will not undergo substantial change. It is not the case, as Rubenfeld wrongly supposes, that the zygote merely has the potential to develop into a whole human being; rather, the zygote already is a whole human being, albeit an immature human being, the way a newborn infant is a whole human being, albeit one which is still immature and will therefore undergo dramatic changes as time goes by. The potential of the human zygote is not to "become a human being," but rather to mature as a human being.

This fact undermines Rubenfeld's recitation of the familiar claim that "an unfertilized ovum also has the potential to develop into a whole human being, but that does not make it a person." But the ovum is not a whole human being. It is, rather, a part of another human being. Unlike the zygote, it lacks the active potential to develop into an adult member of the human species. It is living human material, part of the whole human being whose ovum it is, but if left to itself, however hospitable its environment, it will not mature as a human being. It will die as a human ovum. If successfully fertilized by a human sperm, which, like the ovum, lacks the active potential to develop into an adult member of the human species, then substantial change, a change of natures, will occur. There will no longer be an egg, which was part of the mother, sharing her genetic composition, and a sperm, which was part of the father, sharing his genetic composition; there will be a genetically complete, distinct, unified, self-integrating human organism, whose nature differs from that of the gametes. This new human being is marked from the outset by the chromosomal features specific to members of the human species; that is to say, it is already a member of homo sapiens.

These considerations make it clear, I believe, that Michael Lockwood, who takes a line on these issues similar to Rubenfeld's, is quite incorrect to say that "we were never week-old embryos, any more than we were sperm and ova." Indeed, it makes no sense to say that I was a sperm that matured into an adult. Conception was the occasion of substantial change that brought into being a distinct new organism with a specifically human nature. Without itself undergoing substantial change, this organism matured into a week-old embryo, a fetus, an infant, a child, an adolescent, and an adjunct scholar of the American Enterprise Institute.

But Rubenfeld has another argument: Cloning processes give to non-zygotic cells the potential for development into distinct human beings; so to recognize the zygote as a human being is to recognize all human cells as human beings, which is absurd. But this argument is bogus. Of course, a distinct human organism which came into being by a process of cloning would be, like a human organism that comes into being as a monozygotic twin, a human being. That being, no less than human beings conceived by the union of sperm and egg, possesses a human nature and the active potential to mature as a human being. However, even assuming the possibility of cloning human beings from non-zygotic human cells, the non-zygotic cell must be activated by a process which effeccts substantial change and not mere development or maturation. Left to itself, apart from an activation process capable of effecting a change of natures, the cell will mature and die as a human cell, not as a human being. It will, however hospitable its environment, remain a cell. It will not mature into an adult.

Now, various arguments have been advanced in an effort to establish that a whole, complete, distinct, unified, or self-integrating organism, that is, a new human individual, a human being, is not present until some point after conception. Notable among these efforts are the claims of Carlos Bedate and Robert Cefalo that until five to six days after conception the zygote is not specifically human because it lacks certain information--admittedly molecular rather than genetic information--which must be supplied by the mother in order to produce the specific biological character of the future adult. Also notable are the claims of Clifford Grobstein, which have also been advanced by Richard McCormick, S.J., that the potential of the human zygote to become an adult is merely "theoretical and statistical" until about fourteen days after which a merely "genetic individual," what Grobstein and McCormick call a "pre-embryo," becomes a "developmental individual." Up until fourteen days the totipotency of the cells of the genetic individual makes twinning possible. Thus, developmental individuation, Grobstein and McCormick argue, has not until that point been achieved. I will not here comment on these arguments. They have been effectively criticized by a large number of scholars. I would commend to anyone interested Dianne Irving's summary of, and substantial contribution to, the criticism of these and other, less notable, efforts to refute the proposition that at conception a new human being comes into being, in her article entitled "The Impact of 'Scientific Misinformation' on Other Fields" in the February 1993 issue of Accountability in Research.

Does science settle the issue? No. For, as Dr. Irving herself notes, a philosophical dispute exists as to whether all human beings, and, particularly very immature human beings, are human beings not merely in the biological sense, but also in the moral sense, that is, in the sense of being entitled to the same measure of respect, and possessing the same fundamental rights, as those human beings whom everyone would agree are human beings in the moral sense. A dispute exists, in other words, as to whether all, or only some, human beings are "persons," and this is a dispute that science cannot resolve.

Does that mean that it is irresolvable? No. Let us return to Michael Lockwood, the fellow who thinks he was never a week-old embryo. Lockwood advances an argument for "delayed hominization" which is similar to one that Ernest Van Den Haag attempted to sell to conservatives a few years ago in an article in National Review. Here is the basic idea: "brain death" is a pretty good criterion of when a human individual ceases to be; shouldn't "brain life," then, be an equally serviceable criterion of when a human individual comes to be?

This argument seems to have impressed a great many thoughtful people. John M. Goldenring, for example, says that after about eight weeks, once the fetal brain develops sufficiently to begin functioning, "abortion ends an actual human life and not just a mass of tissue." The problem with this argument, however, is that prior to the point at which the fetal brain develops and begins functioning, the fetus is alive, not dead. As John Finnis has written, "if one expects a conceptual symmetry between the human being's loss of identity in death and the beginning of (the identity of) that being, one should look for the beginning of that integrated organic functioning which is lost in death." And that integrated organic functioning in fact begins at conception.

Of course, once the brain develops in a human or other organism, it becomes the principal factor in directing the organism's integral functioning. And once the brain ceases to function, the organic unity of that organism is irretrievably lost. However, prior to the development of the brain in humans (and other mammals) some factor or factors other than the brain controls the organism's unified dynamism, organization, and development. And, as Finnis observes, the early embryo, lacking a brain that will equip him or her with the capacity to think, "already has the power to create precisely that capacity for himself or herself, by the metabolic processes of ingestion and an internally directed organic maturing."

Now Lockwood does not deny that the early embryo is a distinct, self-integrating, living organism, or that it is human. What he denies is that this organism has interests, and therefore value, dignity, and rights as a human person. He recognizes that to destroy the early embryo is to destroy a human creature, but he claims that it is to violate nobody's rights. In this respect, Lockwood's view resembles the one advanced by Ronald Dworkin in his influential recent book defending abortion and euthanasia. In the very first sentence of that book, Dworkin describes abortion as a "choice for death." But he goes on to argue that such choices, though they raise moral questions about the sacredness of life, ought to be permitted because the fetus during most of its time in the womb lacks interests and therefore has no rights (since what rights protect are interests).

The position of Lockwood, Dworkin, and other contemporary advocates of the proposition that not all human beings are persons is vulnerable to a damning objection. It presupposes an ultimately untenable belief that each of us is actually a nonbodily person inhabiting a subpersonal body. This belief in a split between the person an body is sometimes called "dualism" or "person/body dualism" (to distinguish it from the fifty or sixty other types of dualisms known to philosophers). Dualism of this type supposes that it is possible to maintain as other and other (i) the person or "self" which has interests (and therefore may have rights), and (ii) the human being or organism which, at whatever stage of maturity has no interests. But this supposition has implications which are rationally unacceptable.

One such implication is that it is not a human organism that performs bodily, intelligent, freely chosen, creative, and continuing human acts, such as my speaking and your listening or reading. Dualism of this sort inevitably overlooks, or renders inexplicable, a unity which we know more intimately than any other, indeed, the very paradigm of substantial unity and continuing identity over time. This is the unity (and continuity) in complexity of which one is aware in every conscious act. Dualism, when it is defended by philosophers (as it actually rarely is, however often it is presupposed in debates about matters of life and death), undertakes to be a theory of something (of, for example, my identity as a unitary and subsisting self-conscious and freely self-directing organism) but ends up unable to pick out any one something of which to be the theory. When the "organism" or the "body" is considered as something distinct from the "person" who may, if anyone is home, inhabit it, then no explanation of the interaction of the person as a mind, say, or spirit, and the organism, is possible. No plausible account of the bodily actions of the person, which is to say all of the person's acts, can be given. The far more reasonable view, I submit, recognizes the dynamic unity of body, mind, and spirit. The more reasonable account of human action recognizes that the person who acts, for example, the I who is speaking or the you who is listening or reading, is the physical organism occupying space and doing things. His properties, whether material or otherwise, are the properties of the organism that is him.

The implications of all this for the question of abortion and the rights of the unborn are, I think, that a person, with whatever fundamental interests and rights a person has, comes to be when a human being comes to be. To put the point in logical terms, "person" connotes a "substance sortal," that is to say, an essential property, which implies that whatever has it has it necessarily and never exists without it. Human beings come to be and become persons at the same time; they do not become persons at some point after coming to be; nor do they cease being persons without ceasing to be. So the philosophical problem, if properly resolved, pushes us back to the scientific question: When does a new human being--that is, a genetically complete, distinct, living human organism directing its own integral organic functioning--come into being? Clearly this occurs well before the brain becomes the primary integrator. And, indeed, the overwhelming evidence is that it occurs at conception.

Finally let me turn to the claim that even if the unborn are human beings, no indirect abortion is wrong because none is unfair. On this view, the right to abortion would not be the right to have the fetus killed; rather, it would be the right to have it evicted from the womb, even if the eviction would certainly result in the fetus's death, and, indeed, even if the only safe or effective means of removing the fetus required its dismemberment. The argument is, in essence, that, though the unborn are persons with equal rights, no one's rights include the right to occupy and use another person's body for six to six-and- a-half months (that is, up until the point at which the fetus can survive on life support outside the mother's womb).

Judith Thomson makes this argument by way of an example which has become famous. "Imagine this," she says:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. . . .He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed the available medical records and found that you alone have the right blood type to help. They therefore kidnapped you, and. . . plugged the violinist's circulatory system into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. . . .To unplug you would be to kill him. . . .But nevermind, it's only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you. Is it morally incumbent upon you to accede to this situation?

Thomson, of course, argues that it is not, and that pregnancy is analogous in the relevant respects to being connected without permission from the violinist. And so, just as you may, without unfairness to him, disconnect yourself, you may also, without injustice to your unborn child, remove him or her from your body. This example is one of the most worked over thought experiments in contemporary ethics. And people on all sides of the abortion debate have pointed out various respects in which the analogy breaks down. Most importantly, the unborn child, unlike the violinist, is typically put in the position he is in by virtue of a voluntary act of the mother and father. This is recognized by our laws both in the area of child abandonment and child support. Now, Thomson has countered this point by arguing that women have no special responsibilities to unborn offspring they conceive if they have taken steps to avoid conception. Here she uses another example:

If the room is stuffy, and I therefore open the window, and a burglar climbs in, it would be absurd to say, "Ah, now he can stay, she's given him a right to use her house--for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are burglars out there.

This analogy also breaks down, however. The woman's action in opening the window in no way caused the burglar to enter the house; it only removed an obstacle to his entering. By contrast, an unborn baby does not cause its presence in its mother's womb, the mother and father do.

Parents' special obligations to their children arise in part from their voluntary actions in conceiving them, regardless of whether they wished to do so or took steps to prevent conception. These obligations are central considerations in any analysis of the fairness of performing an action which will foreseeably result in the death of one's unborn child.

At the same time, Thomson's example does raise an important question about the fairness of indirect abortion in the case of rape. The rape case, while distinguishable in various ways (for example, the violinist is not related to you, and is certainly not your biological child) is much more analogous to the case of the violinist than is the case of ordinary pregnancy. Nevertheless, as I said earlier, I do not believe that abortion is generally justified even in the case of rape. Once we appreciate the truly equal worth and dignity of a woman and her unborn child--which, of course, our own society tragically fails to do--it is possible to appreciate the unfairness of abortion even in the case of rape. A just and truly humane policy for dealing with pregnancy caused by rape will therefore exclude abortion in favor of modes of caring which support the mutual interests of mother and child.

At the same time, I do not pretend that it is easy to assess the fairness and unfairness of abortion in the case of rape. Many reasonable people who share my belief in the equal worth and dignity of unborn human beings differ with me regarding the justifiability of indirect abortion in so close a case. This shows, among other things, that Laurence Tribe is wrong to suggest that the willingness of many pro-life people to allow exceptions to the prohibition of abortion in cases of rape reveals that their real motives are less a concern for the unborn than a desire to punish women for having sex.


1. Dianne Nutwell Irving, "Scientific and Philosophical Expertise: An Evaluation of the Arguments on 'personhood,'" Linacre Quarterly, February, 1993, pp. 18-46, 23.

2. Id., p. 24.

Robert George is an associate professor of politics at Princeton University.

Also Visit
AEIdeas Blog The American Magazine

What's new on AEI

Making Ryan's tax plan smarter
image The teacher evaluation confronts the future
image How to reform the US immigration system
image Inversion hysteria
AEI on Facebook
Events Calendar
  • 01
  • 02
  • 03
  • 04
  • 05
Wednesday, September 03, 2014 | 9:00 a.m. – 10:30 a.m.
From anarchy to Augustus: Lessons on dealing with disorder, from Rome’s first emperor

We invite you to join us for two panel discussions on how Augustus created order from chaos 2,000 years ago, and what makes for durable domestic and international political systems in the 21st century.

Wednesday, September 03, 2014 | 12:00 p.m. – 1:30 p.m.
Multiple choice: Expanding opportunity through innovation in K–12 education

Please join us for a book launch event and panel discussion about how a marketplace of education options can help today's students succeed in tomorrow's economy. Attendees will receive a complimentary copy of the featured book.

Thursday, September 04, 2014 | 12:00 p.m. – 1:30 p.m.
How conservatives can save the safety net

Please join us for a luncheon event in which our panel will discuss what conservatives can learn from how liberals talk and think about the safety net and where free-market economics, federalism, and social responsibility intersect to lift people out of poverty.

No events scheduled this day.
No events scheduled this day.
No events scheduled today.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.