April 25, 2006

Bad Arguments for Abortion

While it may be true that abortion advocacy is about crusading for desired "rights" and freedoms, reason be damned, it is true that they do offer various defenses for their position. Some of these may be well-framed and take a bit of work to unpack, but they are generally academic exercises that don't find their way into the typical "pro-choice" rally.

Most of the advocacy boils down to emotional heat and one-line slogans that lack even the resemblance of a sustainable argument. But since it seems gracious to assume that pro-choice defenders would like us to take the statements on their t-shirts and picket signs seriously, I think we are obliged to reply.

It's my choice

When you wish to portray your position in a positive light, the first thing you must do is give it an attractive name. While it might be accurate to call abortion advocates "those in favor of destroying fetuses if the mood and conditions warrant," this particular issue doesn't win many converts when graphically defined.

By contrast, "pro-choice" has a nice ring to it; everybody likes choice. Only an oppressive tyrant would be against people having freedom of choice in their lives. But choice is exactly not the point in this debate. It is only a feeble parry when thrusting at the heart of the issue. Let me demonstrate this with the following dialog:

Pro-Lifer (PL): "Are you in favor of Slavery?"

Pro-Choicer (PC): "Of course not!"

PL: "Do you mean that you are against my freedom of choice to own a slave?"

PC: "Are you crazy? I think slavery is wrong!"

PL: "But what about 'choice?' Don't I have a right to choose?"

It is insanely obvious that choice has nothing to do with this debate. We can only debate over choice where it relates to those things that are valid and available choices. The issue is not over the nasty pro-lifer's desire to take away freedom; it is about whether or not abortion is a morally legitimate act that one should be free to choose.

I have a right to privacy

Taken at face value, this claim seems to be suggesting that anything done in private is nobody else's business.

PL: "Do you think I should be free to shoot up heroin?"

PC: "Well, I don't think it's a good idea."

PL: "Hmm... Okay, can I beat my kids?"

PC: "Certainly not! I don't even care for spankings."

PL: "How about if I do it in private?"

PC: "That wouldn't make any difference. It's still wrong!"

You can only do in private what it is morally acceptable, neutral, or at least socially tolerable to do in general. Privacy does not sanctify an act, it only offers a context in which some acts are best practiced. Like "choice," the appeal to privacy is a feeble dodge of the real issue — that being the rights and personhood of the unborn.

The really astonishing thing is that "privacy" is the very grounding for the Roe vs Wade ruling on the constitutional right to abortion. Was there not a better basis for this law? If the question before the court were in regards to child abuse, would the debate be centered on the question of privacy?

It's my body, I can do what I want with it

This statement isn't even true on its surface. A woman cannot prostitute herself (in most states), do drugs, go nude publicly, or attempt suicide. But even if we could do whatever we want with our bodies, is it really true that an unborn child is just another part of the woman's body, like a thumb or spleen? If she's carrying a boy does she now have two heads, four arms, and a penis?

PL: "Can I destroy my child after he's been born?"

PC: "Of course not!"

PL: "What if he's still connected to me with the umbilical cord?"

PC: "... No, I don't think so."

PL: "As long as he's in the womb he's mine to kill?"

PC: "I don't like that way of putting it, but yeah, basically."

PL: "So being in the womb is important. Now, if he's born prematurely at 20 weeks that means I can't kill him, but if he's still in the womb at 9 1/2 months he's totally at my mercy, because he's still 'part of my body,' right?"

PC: "Well, I guess I'd have to say that."

PL: "So, arriving out of the birth canal magically transforms him from the equivalent of an appendix to a full rights-bearing person?"

This argument boils down to a legal technicality of control and ownership and simply ignores the issue of the worth and humanity of what the mother claims to own.

Every child should be a wanted child

This is certainly a nice idea toward which to work, but must we kill persons to meet the objective? I am reminded of the time I saw my daughter playing Sim Theme Park and I noticed her dropping occasional park guests into a lake to drown. When I asked her what she was doing she told me that she was eliminating the "unhappy" guests in order to get her park rating increased.

Even if we did eliminate all children of reluctant parents there is no guarantee that the "wanted" children would continue to be wanted.

PL: "What if I give birth to a child but fall on hard times after a year or two and don't want her anymore? Can I still kill her?"

PC: "No! That's a horrible thing to ask!"

PL: "But shouldn't my child be a wanted child?"

PC: "Yes, but you can't kill a child, just a fetus."

PL: "Ah, so the issue is the status and consequent rights of the unborn, not whether she's 'wanted,' as you claim."

This defense is pure pragmatism and ignores the possible "personhood" of the unborn child. Indeed, it seeks to work independently of that issue so as to prevail even if it could be said that the unborn is a fully recognized person. For this reason, the defense does too much work and could be equally used against a toddler or any other member of society that could be said to be "unwanted."

If you outlaw abortion then thousands of women will die in back alley, coat hanger abortions

This claim has become the icon of the pro-choice movement, but it turns out to be less of a defense and more of a threat of civil disobedience (and off-loading of blame for the collateral damage) if abortion advocates do not get their way.

PL: "So if abortion becomes illegal, are you saying that doctors will come after unwilling women with coat hangers?"

PC: "No, some pregnant women will be forced to go to secret, unsafe facilities to get abortions."

PL: "You mean they'll choose to disregard the law and voluntarily have those abortions anyway, in spite of the risks."

PC: "Yes, but you'll be making them risk their lives."

PL: "How can you say we'd be making them do that? We don't want them to have abortions. That's why we'd pass the laws to begin with."

PC: "But some women need these abortions and they're going to do it no matter what."

PL: "So you're saying that you are committed to abortion at all costs. Even if science told you your unborn was human, even if reason proved that she was a valuable human person, and even if society agreed that abortion was an evil action against which laws must be passed, then you'd continue to seek out abortions and you're going to blame us for the consequences of your own beliefs and actions?"

This defense is actually similar to that used for the legalization of drugs. If drugs are illegal, then the inevitable drug users will be forced to risk dirty needles, tainted drugs, and crippling prices. As the argument goes, we should legalize drugs to avoid these unacceptable consequences for those who will use drugs no matter what. Some may be compelled by the argument even in the case of drug use, but what if we apply it to robbing convenience stores? Aren't illegal, armed robberies dangerous for all involved? Of course it is absurd to suggest legalizing robbery, but I am merely applying the very same reasoning inferred in the "coat hanger" argument.

This kind of argument only begins to work if the thing being prohibited is small in comparison to the consequences of restricting it. Some actions are so egregious that they must be refused no matter what the effect upon those who are determined to do it. Pro-lifers claim that destroying unborn children is just such a thing, and therein lies the debate.

Stop the war on women

This is just slanderous. This implies that the pro-life movement is nothing more than a confederation of misogynist men. In case no one has noticed, there are women who are against abortion also, and pro-lifers are just as concerned with the substantial role that the fathers play in this drama. This issue isn't really about who happens to carry the child; it is about the child.

PL: "Why do you say that this is a war on women?"

PC: "You're interfering with a woman's right to choose."

PL: "So the father has no rights or responsibility in this at all? That seems pretty sexist."

PC: "He's not carrying the baby; it's the woman's body."

PL: "So if the man carried the baby, it would be none of your business, right? Would this turn into a 'war on men,' or would you then be unbiased enough to be able to talk about the morality of abortion?"

PC: "That's ridiculous! I don't have to answer absurd arguments!"

PL: "Okay, how about a more plausible scenario. What if the fetus were raised in a hi-tech incubator and pro-lifers denied you the option of unplugging it at will? Would you then claim that we had declared war on incubators?"

The issue is the issue. It is not about choice, privacy, consequences of non-conformity, or who's got the ball. It is about the humanity, value, and rights of unborn persons. All the signs and slogans are just so much posturing in avoidance of the real heart of the debate. Which leads one to ask: Are abortion advocates seeking to persuade or just to paint for war and howl battle cries?

(In a followup post I will explore bad arguments against abortion, and suggest some meaningful slogans for use by pro-life advocates.)



At 4/26/2006 12:45 AM, Blogger JELyon said...

I'm tired, it's late, and I might meander, but just a few thoughts:

1) Basically, it strikes me that outlawing abortion is bad public policy. I'll elucidate. I hope.

2) If you outlaw abortion, in South Dakota, say, you aren't stopping women from having abortions. Those who can afford to do so will travel to other states/countries (or to that special doctor all those women of means know) to get their abortion. It is the poor women who will be affected, disproportionally.

3) If you want to outlaw abortion, I mean, *really* outlaw it, seems to me you need to regularly check the pregnancy status of every woman capable of child bearing. Is that really the road you want to go down?

4) Back to poor women. If you force a poor woman to have a child, she's more likely to drop out of school, then you've got *2* indigents instead of just one. And it's a sad fact that children of poor mothers (or families) are much more likely to grow up poor than not.

5) Why aren't the men held to the same level of accountability as are the women? It's not the men who, typically, have to raise these children. It's women. Why not *force* the man to be the primary caregiving, if the woman doesn't want to raise the child? I mean, if we're all about responsibility, let's hold the male responsible, too!

And now, I'm sleepy. Going to bed.

P.S. - For what it's worth. I support reasonable limits on abortions. I also support a woman's right, within those limits, to choose.

P.P.S. - I think there's the matter of "potentialities" to be considered.

P.P.P.S. - It seems immoral to me to force a woman to bear a child, then, in the case that she's indigent, not ensure the child has adequate food, shelter and health care. That strikes me as a moral issue as well.

I swear, seriously. Off to bed.

At 4/26/2006 7:33 AM, Blogger Jeff said...

^ muddled thinking! Since you are intelligent I have to assume you have a propensity or bias towards abortion and choose not to engage the real issues intellectually.

2) poor women in South Dakota would then disproportionately obey the law rather than skirting it. You are simply making an observation about law enforcement here. Paul already addressed this directly when he turned this argument to another subject...say drug use. Heroine is made illegal in South Dakota, rich women will cross state lines to buy their heroine...poor women will be disproportionately affected..boo hoo. I think that you indeed are tired because your mind was in neutral at this point. :)

3) So if a law can't be enforced 100% then it's not worth making a law. I guess this means you are against any immigration laws. In fact, since someone has probably successfully broken every law in existence you must be an anarchist. In fact, by this reasoning there should be no law against me murdering Jelyon!

4) Poor women..rich women..both are more likely to drop out of school due to pregnancy. That's why teen pregnancy should be avoided. But of course that woman's education is more important than the life of a baby. So she should also be allowed to kill her toddlers if she can't go to school otherwise. Here's another argument Paul debunked and you just regurgitate it!
As for indigents, poverty...single poor women with kids are taken better care of by the system than those without kids. This is why so many poor women have kids on purpose! They get aid, shelter, food stamps and so on...even free medical care for the children. Except in anecdotal cases, there is no increased hardship like you would try to depict.
Besides, there is a waiting list for adoptions. Every child can be placed for adoption and everyone's happy---Except the person who's dead set on killing because they don't want the inconvenience of 9 months of purgatory.

5). Why don't we work together to advocate legal reform in this area?
But I'll hazard a guess you are a closet hypocrite on this issue. Would you also support legislation that gives a responsible man the decision over whether the baby is aborted? I'll bet not.

At 4/26/2006 11:04 AM, Blogger Paul said...

Easy there cowboy! (Jeff) Let's not discourage dialog here.

JELyon, Jeff's right that you've ignored the thrust of some of my arguments here and simply restated some of what I've responded to. Appealing to problems of how we can enforce the restrictions on abortion is a diversion from the issue of abortion itself (as I've argued), unless you feel that abortion is such a petty thing that managing restrictions is the focus of the debate (like trying to keep people from cursing). These kinds of arguments can be made for anything that we propose to ban. But if abortion is wrong, then the first step is to discourage it. We can't make it impossible, but we don't have to make it legal, readily available, and government funded.

Let me try to cut straight to the point and ask you why you would support "limitations on abortion."

At 4/26/2006 12:35 PM, Blogger DagoodS said...

Paul, I’ve been good. I stayed away. But one thing in your blog here was enough of a problem, I thought I should post.

“Right to Privacy” does not mean a right to do things in private, and no abortion advocate would ever say, “anything done in private is nobody else’s business.” Perhaps you are indicating what the slogan means to you, but it most certainly is not what it means to the person making this statement.

Therefore, what you debate appears to be a complete strawman. If you want the truth, it doesn’t help your argument, because you come across as unknowledgeable in the area of Constitutional Rights.

Right of Privacy is the right to be let alone. The right of an individual to make private (as internal) decisions about how to raise children, where to send children to school, who one can marry, whether to choose to reproduce or not, as well as performing certain acts in one’s own bedroom. (It also includes the right to not have one’s personal information on display, not have one’s picture used, and the right to have one’s home free from invasion.)

An abortion advocate would not be saying, “I have a right to an abortion in private” but rather, “I have a right to be let alone in a private decision about reproduction.”

Of course the question remains, whether abortion is correctly considered a Right of Privacy, but that is a difficult wrestling match indeed. There are valid arguments on both sides of the fence. Since the US Supreme Court is in the position of interpreting the Constitution, at the moment it is a Right of Privacy. Tomorrow, new court—who knows?

I hoped you would like to know this.

At 4/26/2006 12:48 PM, Blogger ephphatha said...

The creepiest one, in my opinion, is the "every child a wanted child" slogan. It sounds so nice until you really start to think of the implications of it.

At 4/26/2006 1:21 PM, Blogger Paul said...

Dagoods, I defer to your superior knowledge of Constitutional law and what the "privacy" argument is grasping at in its best expression. However, I don't think it ultimately makes a difference to my argument.

Why appeal to "privacy" here at all unless you believe that it adds something to your defense? If we were debating over the right to prostitute your child, and you and I were on separate sides of the issue, would "the right to privacy" be an effective trump card to be played?

It seems to me that it is simply being used as a cover given the prior assumption that abortion is an acceptable procedure. It's not "neutral" to stand aside and allow a person to be killed (I think the law has a name for that). I think the real position of the court is an affirmation that the unborn child is NOT a valuable and rights-bearing person. But if that's really the case, then no defense at all is required. No one would argue for permission to have a wart removed based on a right to privacy. Warts and other unwanted "lumps of tissue" have no rights to be violated, and thus have no need of defense.

At 4/26/2006 3:03 PM, Blogger Paul said...

Sam, you're right. The sad thing is that this kind of talk is exactly the grounding for other issues, like euthanasia, e.g., "a life not worth living." Some arguments are true in a very surface way, but the reductio ad absurdum pulls the lid off pretty quickly. Trouble is, many people don't have the patience, mental constitution, or intellectual honesty to take the trip with you down the ol' logic trail.

At 4/26/2006 3:29 PM, Blogger DagoodS said...

Lol! I know a few things, but am in no danger of being accused of having “superior knowledge of Constitutional law.” I hoped you would look it up, read on it, and perhaps see how ineffective this argument would be on an abortion advocate, due to the wrong premise.

You asked questions that, to be polite, I will answer.

An abortion advocate is not appealing to “privacy.” They are appealing to “rights.” You are focusing on the wrong word. The Supreme Court placed abortion under a Right to Privacy, but your blog seemed to focus on the difference between “public,” and “private” and that is not what the word “privacy” entails.

For example, the right to marry a person of a different race was determined to be Constitutional Protected, under the Right to Privacy. Certainly you would not claim that people who desired a mixed marriage, wanted to be married “in private” as it was “nobody else’s business.” Not at all. They wanted to be married in public! To be recognized by the public. To not have laws infringing on their personal (private) choices.

You consistently make the differentiation of doing things in private as to public, and that is not what the Right to Privacy is solely about. It certainly is not what it is about in the abortion debate. I thought you would like to know.

Yes, the Right to Privacy would be an extremely effective trump card to play on prostituting one’s child IF the U.S. Supreme Court had ruled that it was protected under the Right to Privacy. It has not, so therefore, not an effective trump card. Interesting, perhaps, but not effective.

The difference, paul, is that the U.S. Supreme Court has ruled that abortion is protected under Right to Privacy, not prostitution of one’s child. To whitewash that away as “they say they want to have freedom to do whatever they want in private, not in public” makes the argument sound extremely….naive. One would need to address the ruling itself, why the Court made the ruling, what the history is in Right to Privacy, the difference between strict constructionalists and those that hold the Constitution is a living, breathing document, and the subsequent rulings that have held Roe v Wade as precedent.

Your last paragraph falls into the dangerous dichotomy of entities either having rights or no rights at all. We weigh varying rights of varying entities (not just humans, and not just animals) all the time. It is not an “all-or-nothing” prospect.

But—no more. I regret already answering the blog.

At 4/26/2006 4:29 PM, Blogger Jeff said...

Dagwood, I find your comments here to be great, and I'm sure they are welcomed by Paul.

So the correct understanding of the 'right to privacy' in a legal context is more like the right to self-determination rather than the right to secrecy?

Regardless, the issue here hasn't been what's legal...it's what should be legal...well not even that. More like what should be viewed as morally acceptable. So the question of how the courts have ruled on it isn't really what's at issue.
But I suppose if we pondered for a moment what the courts should have ruled in regard to abortion that we could have a pretty interesting discussion; and your knowledge would add a lot of insight.

At 4/26/2006 4:40 PM, Blogger ephphatha said...


I think I understand what you're saying about the "right to privacy" not referring to "privacy" in the sense of "not public." So the issue isn't whether abortion, child abuse, or whatever is done in public or private. Granted that's not what "privacy" means when we talk about a "right to privacy," but I'm not clear on what "privacy" does refer to. Could you explain that a little more?

Also, is the "right to privacy" absolute? Or are there any limitations on it? It seems that most of our rights have some limitations. The right to freedom of speech, for example, has limitations. We can't say "bomb" on an airplane.

If it's possible for there to be limitations on the "right to privacy," then I think Paul may still have a point. We could argue whether the "right to privacy" should include the right to take another person's life in the context of "privacy," whatever "privacy" means.

I think (and Paul can correct me if I'm wrong) Paul's point is that "privacy" or the "right to privacy" isn't the issue at all. The issue is whether the unborn are human beings with a right to life. Depending on what the real meaning of "right to privacy" is, Paul would only need to adjust his scenario, accounting for the more accurate meaning of "privacy," to make the same point. The "right to privacy" would not guarantee anybody's right to any kind of serious harm to another person. The question is whether the unborn are other persons.


At 4/26/2006 4:41 PM, Blogger JELyon said...

Paul asked: Let me try to cut straight to the point and ask you why you would support "limitations on abortion."

1) I don't think abortion should be used to select for eye color, or sex.
2) I admit a certain discomfort with the serial use of abortion for birth control. To be honest, I'm not sure how often this happens.
3) Once a fetus becomes viable, it's a little late for an abortion, IMO.

Jeff: Read "American Dream" by Jason DeParle.

At 4/26/2006 7:53 PM, Blogger Paul said...


But don't rights need a basis? Are you just saying that it's legal because they have a right? Why a right to abortion over a right to drug use? And since "privacy" is named in this "right," it must do some philosophical work. So, just how does privacy apply to this question?

You seem to be focused on the legality of this vs. the philosophical justification, which is my concern. For example, you say,

"The Right to Privacy would be an extremely effective trump card to play on prostituting one's child IF the U.S. Supreme Court had ruled that it was protected under the Right to Privacy."

This seems to me to be saying that if the court says it's legal on the Right to Privacy basis, then it's legal and justified. But this is a tautology.

Your best point is this one:
"Your last paragraph falls into the dangerous dichotomy of entities either having rights or no rights at all. We weigh varying rights of varying entities (not just humans, and not just animals) all the time. It is not an “all-or-nothing” prospect."

You're right in that, for example, we give adults more rights than children and citizens more rights than non-citizens. But the unborn don't even have a place at the table. The right to life vs. no right to life seem to be the most "dangerous dichotomy" of all.

At 4/26/2006 8:28 PM, Blogger DagoodS said...

I must be a sucker for hope.

ephphatha, for a description of Right to Privacy, a long quote from Roe v Wade, without the legal citations:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the Fourth and Fifth Amendments; in the penumbras of the Bill of Rights, in the Ninth Amendment; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty,", are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage; procreation; contraception; family relationships; and child rearing and education
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
No right is absolute. All have limitations.

However, the Court refused to determine that a fetus was a person. This was based on the fact that at the time the Constitution was entered, abortion was legal, so even then a fetus was not protected as a person. Further, the court said that since medicals, philosophers and theologians can’t determine when life starts; the judiciary would be out of its league to do so as well.

While that may be the issue for you, or for paul, it was not for the court. Therefore, while one may not like the slogan “Right to Privacy” does this mean one can re-define it to whatever term one likes, and then ridicule it? Or should one address it within the context it was given? Which is more credible?

I fully agree that “Right to Privacy” and its application to abortion is a debatable issue. The only reason I even posted, though, was to beg to debate it on its own standing, not create some strawman that says it means “Right to do what I want behind closed doors” and then bash it for stupidity.

Jeff, “Right to Self-Determination” is much better. (Although “Right to Privacy does also include rights for activities behind closed doors. Abortion is just not one of these.) Remember Rights are limitations on government. Rules that say, “You can make laws anywhere else, but here, you must back off.” Whether one exercises these rights or not is of no concern. Right to Privacy might be better stated that there are things one can self-determine that the Government cannot intervene. But that is nit-picky.

I would agree that abortion is a moral, not a legal issue. Think of it. If Pro-lifers prevailed in persuading people that abortions were an unacceptable practice, Roe v Wade would be unnecessary. If Pro-Choicers convinced people that abortion was acceptable, Roe v Wade would be just as useless.

Do you know that a most states (including my own) still have laws criminalizing adultery? It is a crime. Yet no one enforces it. Why? Because the morals of the society have changed to make the law useless.

As the case itself points out, abortion was a non-issue at the time the country began. Society determined it was fine.

However, society decided to turn to the law—to the judicial system—to impose the morals associated with abortion. That took it out of just the morals of the society, and forced it into the courts. Like it or spike it; that is where it is.

At 4/26/2006 8:33 PM, Blogger Paul said...


You seem to have some general discomfort with abortion, but you haven’t told me why that is. You've just mentioned where you think you can get past your reservations and where you can't.

The problem is, if the fetus is a non-person with no "value" beyond what is ascribed to "it" by the mother, then who cares if it's aborted for being the wrong sex (would you also disallow plastic surgery for cosmetic reasons?). Are you saying that the unborn child has some intrinsic value that trumps the preferences and conveniences of the parents? You seem to be suggesting a "degreed" personhood for the child, i.e., it has more value as it approaches "viability." Isn't this just an arbitrary designation for utilitarian reasons, or do you think something special happens at this time to transform a piece of flesh into a full human being? And "viable" is kind of a disputable and moving target: some might call "viable" when the child has no need of incubators and IVs, while other's might allow artificial life support, which can be effective around 20 weeks.

At 4/26/2006 9:51 PM, Blogger Paul said...


So you're saying that the Right to Privacy is just a label or useful legal device that the court is using to make abortions permissible? Can I not at least criticize the very terms the court has used to represent itself? I am not "redefining" the terms; I am taking them at face value. It is not my intention to ridicule a strawman; I am attempting to deconstruct the real man beginning with his ridiculous pointy dunce-hat.

You seem to be affirming my point that what the court is really doing is saying that abortion is okay — an available right — and then hiding that judgment behind this Right to Privacy language. I say this based on the following excerpt you include: "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' are included in this guarantee of personal privacy."

In spite of an appeal to "neutrality," I contend that the court has taken sides. You say, "the court said that since medicals[sp], philosophers and theologians can't determine when life starts; the judiciary would be out of its league to do so as well."

This is basically claiming that "people disagree on this issue, so we say let 'em kill the babies if they want." This is hardly neutral; it is a thinly veiled affirmation of abortion. You would hardly be satisfied if the court said that "people were divided over the issue of slavery, so the court determines to let every man follow his own conscience in the matter." And if they slathered that over with Right to Privacy language it would only fan your outrage.

At 4/26/2006 11:09 PM, Blogger ephphatha said...

Although the Supreme Court said they wouldn't determine when life starts, they do make the question relevent. First, they said that during the second and third trimesters, the woman's right to privacy is not guaranteed. They said, "...it is reasonable and appropriate for the STate to decide that at some point in time another interest, that of the health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly." So even "potential human life" was enough to trump the right to privacy.

Second, they said, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." So really, the question of personhood is logically prior to the question of privacy.

But back to the point. This all started because of how Paul responded to the "right to privacy" argument. He said the "right to privacy" doesn't include a right to beat our children even if done in private. Dagoods pointed out that "privacy" doesn't mean "not in public," so Paul's counter-example fails to refute the argument. So I asked what privacy does mean. This seems to be the most clear definition:

These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty,", are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage; procreation; contraception; family relationships; and child rearing and education

Pointing to "personal rights" is still too ambiguous, but the extention seems to make Paul's argument work with a minor adjustment. "Personal rights" include activities relating to "child rearing" and "family relationships." Doesn't child abuse, or spouse abuse fall under "child rearing" and "family relationships"? Of course it does. Yet our right to privacy doesn't allow us to engage in those things.

So Paul's argument works. The right to privacy doesn't allow us to do anything we want "in privacy" even under the definition of "privacy" spelled out by the Supreme Court. The right to privacy can't extend to causing harm to others, even when done in the context of privacy. All that remains is to determine whether the unborn are other persons. The Court said so itself in Roe v. Wade.

At 4/27/2006 12:40 AM, Blogger JELyon said...


Personally, I don't believe we become fully human until we become self aware. I'm no child psychologist, but I seem to recall reading that happens somewhere around 18 months. I'm not suggesting anything, I'm just sayin'.

In your response, you seem to be suggesting that a sperm and egg become human at the moment of conception, simpley because they have the potential for human life. If we're judging humanity only by potential, then we shouldn't waste a single egg.

Not a single one.

Again, I'm tired. That may make no sense whatsoever.

At 4/27/2006 8:39 AM, Blogger DagoodS said...


Of course I focus on the legality of “Right to Privacy” as compared to the philosophy of it. It is a legal term! It is used as a legal term in the abortion debate. Sure you can criticize the US Supreme Court for using the term “Private.” But taking it on “face value” as one definition is dangerous. Equally, you could criticize the “Right to Bear Arms” as meaning the right to carry around severed limbs, not guns. In order to look at this, I would have hoped you look at the history of the term “Right to Privacy,” what other issues are covered under it, where it came from (the Right is not in the constitution), and, if you desire, why the word “Privacy” was used.

Is that what you did in your blog? Discussed the issues behind Right to Privacy, the determination of when someone becomes a “person” under the Constitution, and why the Court was incorrect in protecting this activity under “Right to Privacy”?

And yes, I understood quite well that the point of the blog was to pick out some slogans, and show how they were not persuasive in this debate. Again, I hoped that you would understand that you were using the term “Right to Privacy” in a way in which Pro-Choicers were NOT using it. If you cared to address it correctly, with such arguments as raised in these comments—GREAT!

Do you want to understand the position of pro-choicers, or do you want to re-phrase it to terms they are not indicating and ridicule it? If the latter, then my responding here was in vain.

Imagine you are for the proposition that parents can make the choice to send their children to private Christian schools. I respond that children must be sent to public institutions. You reply, “What about the US Supreme Court ruling, under “Right to Privacy” that I can choose where my children can go to school?” And I respond (as you did in your blog):

“’Right to Privacy’ to decide where one sends their children seems to be suggesting that anything done in private is nobody else’s business…. Privacy does not sanctify an act, it only offers a context in which some acts are best practiced…. The really astonishing thing is that "privacy" is the very grounding for the ruling that parents can choose where to send their children to school. Was there not a better basis for this law? If the question before the court were in regards to child abuse, would the debate be centered on the question of privacy?”

paul, it is the exact same Right as the abortion issue. Can you see why, to a person that understands the context and framing of “Right to Privacy,” your blog made no sense? Substitute other issues covered by Right to Privacy—the right to marry persons of other races, contraception, and child rearing. The issue is not whether one can spank a child behind a door, or in front of it, it is whether one can at all.

Oh, by the way. It is a good argument that corporal punishment is protected by the Right to Privacy. I was not arguing the counter-argument about spanking fails to refute the argument. Far from it! I am stating that, while the issue of Right to Privacy has some debatable issues in the abortion front, Pro-choicers are not claiming it is a “Right” because it is not done in public, but because of Supreme Court Decisions. To make such a claim shows a lack of insight on their position.

An argument that does not understand Right to Privacy fails on its own. The counter-example of a fictitious story with a person that equally does not understand Right to Privacy does not even need to be addressed.

Again, again, again and again. You HAVE arguments against Right to Privacy being applicable to abortion. True, they take study, and research, and a bit of knowledge about Constitutional Law, but they ARE there! You are beginning to touch on them in these comments. To use this argument of the word “Private” only diminishes your credibility. The only reason I responded was an attempt to get you to see it. Obviously my lack of tact has failed me again.

I was uncertain, paul, about your “appeal to neutrality.” Who said the court was neutral? Who wants a neutral court? Oh, they may puff themselves up and claim to be “impartial” we all know they are not. We all want a court that is as biased as hell toward our position.

Reflect on this. A neutral court is bound be precedent. Do you want a neutral court? If we have neutrality from now on, Roe v Wade will never be overturned.

Note that no one wants a perpetually neutral court. Times change. Governments, issues, events, societies all change. A continually neutral court would be bound by every precedent that addressed the issue presented. The Court could only address new issues. Slavery? Dead issue. “Separate but Equal.” Never modified. We want a non-neutral court. Just one that is not non-neutrally inclined to the other position. :-)

ephphatha –

You raise extremely good points. Exactly what SHOULD be raised as to the “Right of Privacy” issue on abortion. What rights do a non-person, but potential human life have? If they are determined at one point in time to supplant the Right to Privacy, by what methodology do we determine that point in time?

While the court stated it wasn’t going to make the determination, due to the conflicts in the medical profession, philosophers and theologians, it went on to make a medical determination—viability. By not choosing to determine the fetus was a person, a choice was made—the fetus is not a person. (And yes, personhood IS logically prior, because the Right to Privacy is provided to persons.)

And you are right that the reason child abuse is not protected under the Right to Privacy is that it causes harm to other persons. (Although that can start to enter some real gray areas as well. Nothing is clean in the practice of law. For example (off-topic) a parent holds a religious belief that no children should have medical treatment. Does the Right to Privacy prevail? What about Freedom of Religion? Difficult questions.) As a fetus is not a person under the Constitution, the issues remain on the table.

At 4/27/2006 10:08 AM, Blogger Paul said...


Your input on this has been valuable to me, and it persuades me to eliminate my section on "privacy" (not sure I have the energy to rework it) if I decide to elevate this post to a LifeWay.com article. Thanks for hanging in here. I think I understand where you are coming from, and my frustration may simply be a matter of the language chosen by the court (I have a fondness for precision). It seems as though there should be a more precise way of expressing or arguing for certain rights, or the lack thereof, and it does appear to be the case that some rights are affirmed at face value rather than under the more abstract language of "the right to privacy."

It is good to see that you agree that the court is not ultimately neutral, but I mentioned "neutrality" only because I so often hear the defense that the court is attempting to be neutral in this and various other issues. I think this is either naïve or disingenuous.

I think your response to Sam reveals where the heart of this debate really lies, and that perhaps the court does indeed understand this. My running theme was simply to expose the various popular defenses as hollow justifications and to uncover the real question on the table: is the unborn child a "person," which implies certain legal responses. As Sam so well put it, personhood is logically prior to all these other questions. And as Greg Koukl has put it, if the unborn is not a "person," then no justification is necessary for abortion, but if she is, then no justification is adequate. (Note: he would, of course, support abortion in the rare case of life endangerment for the mother, since no one is morally obligated to give up their life for the sake of another, no matter how noble it might be to do so.)

At 4/27/2006 12:56 PM, Blogger DagoodS said...

Thank you, Paul. It may just be the whining of one crotchety lawyer, but this happens to be an area where many, many people are versed in the law, and I think you are wise to re-work or eliminate this section.

If you are looking for precision, stay away from court cases! We are anything BUT precise.

Looking forward to the next blog….

At 4/27/2006 1:12 PM, Blogger JELyon said...

My opinion: If you want to advocate banning abortion, you could do worse than follow El Salvador's example:

Article 1 of El Salvador's constitution declares that the prime directive of government is to protect life from the ''very moment of conception.'' The penal code detailing the Crimes Against the Life of Human Beings in the First Stages of Development provides stiff penalties: the abortion provider, whether a medical doctor or a back-alley practitioner, faces 6 to 12 years in prison. The woman herself can get 2 to 8 years. Anyone who helps her can get 2 to 5 years. Additionally, judges have ruled that if the fetus was viable, a charge of aggravated homicide can be brought, and the penalty for the woman can be 30 to 50 years in prison.

At 4/27/2006 1:44 PM, Blogger Paul said...


(Regarding your earlier post)
I appreciate that you may still be working the logic of this one out, so I won't fault you for any probative statements.

The problem is, as you've flushed it out, is that there are really two positions here. One is that "personhood" begins when society says it does and the other is that it is intrinsic to human beings upon their initial appearance (i.e., conception).

The first position is problematic in that qualification for "personhood" is an arbitrary and moving target. Some say what qualifies is "brain activity," some say "viability" (whatever that means), some say "third trimester," some say "birth," some say "when you take it home from the hospital," some say "self awareness" (however that is defined), and some well respected academics suggest a fixed time after delivery. So, even if you hold to the pro-choice position it still does not settle the issue of when that "choice" expires. And there is no philosophical boundary to constrain the scope creep that can ultimately lead to eugenics. You will forever be roaming the hinterlands between your moral intuitions and the logical outworking of your philosophy of life. Even if you purged the world of religion, you would still not settle the debate.

On the other hand, the pro-life philosophy is founded on the idea that the distinction between human and "person" is an artificial (or even metaphysical) one. From conception, a unique human being comes into existence, and labels like zygote, embryo, fetus, and infant are just stages of development in the person's life, like toddler, adolescent, and adult. They are not "potentially" human; they are human. It seems a clear biological and metaphysical distinction that does not suffer from the socially constructed personhood model. And if humans have any spiritual and moral component, it would only seem to justify the more conservative view of personhood.

Of course, I do not expect people to be excited about the implications and constraints that the "conception" model imposes upon those seeking a life as free of constraints as possible, but even the most obstinate pagan has a hard time bringing himself to support ideas such as the right to kill 2 year olds who are too fussy or unattractive. But true morality is not about passing laws to suit your most flaring intuitions; for one man's violated intuition may be another man's progressive idea (or fetish).

(Regarding your last one)
I think you mean to say that El Salvador's law is not a good one, don't you? Personally, I am not equipped to suggest what laws against abortion would look like (we already have a variety of graduated laws against taking life); my primary concern is the morality of the issue itself and whether it should be legal at all.

At 4/27/2006 2:43 PM, Blogger JELyon said...

The first position is problematic in that qualification for "personhood" is an arbitrary and moving target.

You are correct - it would be, IMO, disingenous to argue otherwise. On the other hand, are we really going to hew to the most restrictive definition, when egg meets sperm? I think most reasonable people would agree that there is at least a bright line at the point of viability. I think arguing much beyond that is probably treading in the sticky morass of morality.

And there is no philosophical boundary to constrain the scope creep that can ultimately lead to eugenics.

Seems to me there would be, and could be. I'm not prepared to argue the case against eugenics for every moral system, but from what I understand of Social Contract theory, if society decides that viability is the bright line, then viability is the bright line. And I think any good philosopher/ethicist could destroy your contention of the slippery slope towards eugenics. Well, even I know that's a logical fallacy.

Even if you purged the world of religion, you would still not settle the

Isn't this true for so many issues? What's the answer? That we set up a monolithic world body to determine what is right in every circumstance? I guess the question is, who gets to be the decider in a diverse society? I actually have an idea about that. The law. This is a country of laws, after all.

From conception, a unique human being comes into existence, and labels like zygote, embryo, fetus, and infant are just stages of development in the person's life, like toddler, adolescent, and adult. They are not "potentially" human; they are human.

I will agree that it pretty much clears things up. Certainly gets that pesky "science" out of the way. I'm not going to try to go into all the implications of this - but think about the humble blastocyst - a group of cells not yet implanted. Is this "human?" It stretches credulity to believe it to be so. If it *is* human, then it becomes a crime to destroy unused blastocysts resulting from fertility treatments. (For fun, we could play the "who do you save in the burning fertility clinic game - a thousand blastocysts, or one baby!" But let's not.)

I think you mean to say that El Salvador's law is not a good one, don't you?

Actually, if your aim is to make abortion illegal, and hold people accountable, I think it's a darn good one. Isn't part of the pro-life argument that one should be accountable for one's actions? I can't help thinking that abortion laws that allow women of means to get abortions while making it harder for poor women to get abortions are flawed, as they allow two standards.

I'd suggest considering public policy considerations, as well. If the laws are, as a practical matter, forcing poor women to have children - then doesn't social spending go up? Unless we aren't going to help maintain those children if their mothers can't. (I appreciate the irony that many of those in the pro-life camp are also in the cut social spending camp.) And to just let these children founder seems unethical and immoral. (Though I might have a different take on this at the conclusion of my Ethics and Public Policy class...) ;-)

At 4/28/2006 7:43 PM, Blogger Paul said...

JE Lyon,

You've done it again. You've inspired me to elevate another response to the level of a post. I'll be posting your reply shortly.

At 4/28/2006 9:54 PM, Blogger JELyon said...

You've done it again. You've inspired me to elevate another response to the level of a post. I'll be posting your reply shortly.

Score! But please ding me on this: "I think arguing much beyond that is probably treading in the sticky morass of morality."

This is exactly what we're doing here, isn't it?

I think what I was trying to say, and clumsily at that, was that I'm not sure we should be using morality as our sole guide for making public policy. But I'll have to ponder that. My thinking is that I wouldn't want policy based solely on, say, the Bible. Empirical evidence would be a nice adjunct, as would social mores, traditions, and general consensus.

At 4/29/2006 1:34 AM, Blogger Paul said...

Not sure why we should use something other than "morality" as our guide. Aren't we trying to determine what the "right" thing is to do? Even if we just say we're looking for the prudent thing, we must first admit that prudence is the "right" or "best" criteria for making such laws. Perhaps you're implying that you're not willing to surrender too many rights and conveniences even for the sake of what you believe to be an authentic moral truth. Perhaps I might find occasion to agree with this if I thought through enough situations, but it has the look of moral bankruptcy at first glance.

As far as basing morality on the Bible, to begin with, I'm not bringing the Bible into this discussion (I think I'm being very empirical overall), even though for me it is the final authority. If one believes the Bible to be what it claims for itself, then it is not something to be added in as just one of many independent but equal sources of input. And if the Bible is not divinely inspired, then who really cares what it has to say?

I think your solution does ultimately boil down to social consensus, but I'm not willing to admit that consensus is equivalent to morality. And I'm not sure you would admit as much, especially if the consensus didn't align with your own personal preferences.


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