Why It’s Not Murder

This article was originally published at the blog No Termination without Representation on Feb 28, 2017. You can comment there on the thinking in the article. It has been reprinted here with the author’s permission.

An Exception for Serious Injury 

At Wayne State University last November 16, 2016, Scott Klusendorf, perhaps the dean of pro-life apologists, ably debated abortion with Nadine Strossen, a former president of the ACLU. Klusendorf based his pro-life argument on the humanity of the unborn and the wrongness of intentionally killing an innocent human being. 

At 1:08:57, Klusendorf indicates a possible openness to health exceptions to his anti-abortion position. Strossen insists on more specifics – what kind of health condition would be serious enough to reach the threshold at which Klusendorf would agree to make an exception? Klusendorf replies:

“Sure, I’ll answer that. Let me make an observation, though. Even if my answer were inconsistent, it wouldn’t eradicate the syllogism I put forward. . . . So even if I answered this question in a way that seemed inconsistent with my view, it would only show I’m inconsistent. It wouldn’t rule out the evidence I presented.“

Then he brings up Doe v. Bolton’s overly-broad standard of “health,” and the empirical rarity of cases that would raise a real ethical question; but Strossen insists on a specific example even if “hypothetically,” and offers “Let’s say she will not lose her life, but she will be rendered infertile . . . ?” Klusendorf replies, “In that case the mother stands to lose one good, the child stands to lose an ultimate good” – meaning that impending infertility would not be a sufficient reason to abort. Strossen then moves on to other topics. 

So Klusendorf laid the groundwork for a defense in case he might say something “inconsistent.” In the event, he was not forced to say anything inconsistent, but in my mind Strossen let him off the hook. Suppose instead of the infertility example, she had framed the hypothetical as “Let’s say she will not lose her life, but most likely her brain will be damaged, seriously affecting her motor skills and memory for the rest of her life.”

I don’t know whether Klusendorf would have agreed to an exception in such a case. A little earlier he had agreed that it would be ethical to cause the death of the unborn in the case of an ectopic pregnancy – where sparing its life would mean the death of the woman, and where refraining from the death-causing intervention would only lead to its dying anyway as soon as the woman died. But if it would be ethical to cause the death of the innocent unborn only in such a situation, then it would “seem inconsistent with [that restrictive] view” of his if he in fact allowed abortion for a woman who faced grievous, but not life-threatening, injury. So I don’t know whether Klusendorf would have agreed to a grievous-injury exception. But I, and I think many pro-lifers, would say, “In that case, yes, she should be allowed to abort if she so decides. I will admire her if she doesn’t, but in terms of legal obligation, society should not compel her to carry the pregnancy.”

Yet it remains generally true for my brand of pro-lifer (just as for virtually all pro-lifers) that “it is wrong to intentionally kill an innocent human being,” and it remains true for us that the unborn is an innocent human being – so that it would seem impermissible to kill it. Moreover, if in an otherwise analogous situation a mother could avoid serious brain damage only by killing her innocent born child, it would almost certainly be illegal for her to do so. Suppose that in an earthquake a mother and her 4-year-old become trapped in a small space beneath the rubble. They can hear the voices of rescuers a few yards above them, but the air is running out and the mother’s brain will become damaged by oxygen deprivation if the 4-year-old keeps breathing also. If she were to put her hand over the toddler’s mouth and nose, thus killing it, that would certainly be illegal. Thus since the unborn is a human being like the toddler, allowing the woman to abort, as I and many pro-lifers would do, would seem inconsistent both with existing legal protections for born human beings, and with a syllogism that we basically support. 

How can one explain this? Do many pro-lifers not really believe that the unborn is an innocent human being? Well, clearly it is innocent, so the question becomes, do we not really believe that it is a human being? (Many pro-choicers, of course, like to push the idea that we do not really believe that.) 

The answer is: we do believe that the unborn is an innocent human being, but we feel that society has no right to legally prevent a woman from saving herself, even if it is by use of lethal force against an innocent human being, from a very serious developing threat which would not exist without the participation of her own body. 

What, morally, is the difference between the grievously health-threatening pregnancy situation and the “competing for oxygen” situation? The difference seems to be the difference between legally preventing a woman from using lethal force to save herself from a developing threat that is coming from outside her own body, and legally preventing a woman from using lethal force to save herself from a developing threat that is living within her own body and in whose development her own body will participate. The latter woman’s body is helping, as the days wear on, to augment more and more the threat against herself, and thus obliging her to continue doing that obliges her to seal her own terrible fate – an obligation which has a kind of moral repugnance all its own. (Even to prevent abortion in the case of a normal pregnancy is to oblige a woman to seal her own fate, but if it is a normal pregnancy, then by definition it is not a terrible fate.) [1] 

Virtually all pro-lifers, like anyone else, respect the mental sense of body ownership that underlies the concept of bodily rights. The importance accorded to that sense rests on a kind of intuition, and hence the importance varies somewhat from person to person, but I don’t think there is a night-and-day difference in that regard between pro-lifers as a group and pro-choicers as a group. To put it more simply, pro-lifers as well as pro-choicers believe in bodily rights. So pro-lifers feel that as a moral starting point, or as a default moral principle, everyone should have a legal right to refuse to let their body be used unless they give permission. Certainly one’s body cannot be used by another for just any purpose under the sun. Where pro-lifers differ from pro-choicers is that pro-lifers are likely to feel that a woman should not have that legal right when her body is the only hope for survival of a new human being – a situation that they feel confers some degree of responsibility on her. (I have discussed elsewhere how I, as one pro-lifer, come to that conclusion.) 

Yet the tipping of the scales on the side of the child’s life is not a completely day-and-night proposition. The belief in a default principle of bodily rights, on one side of the balance, never disappears even when a child’s life is at stake on the other side, with the consequence that for some pro-lifers (including me), if the woman’s pregnancy is expected to be exceptionally dangerous, then, in this conflict of rights, her bodily rights will again prevail as they did when no other life was at stake. It is not that the unborn is not what Klusendorf calls a “distinct, living and whole human being;” it is indeed that human being; but society has no right to legally prevent a woman from saving herself, even if it is by use of lethal force against an innocent human being, from a developing threat which would not exist without the participation of her own body. 

This explains and resolves the seeming inconsistency. If in a situation analogous to pregnancy a mother could avoid lifetime brain damage only by killing her innocent born child, it would almost certainly be illegal for her to do so, whereas if a pregnant woman could avoid lifetime brain damage only by killing her innocent unborn child, many of us would allow that. The difference is bodily rights that operate when a person’s body stands to be used in a particular way, but otherwise do not operate. 

Broader Implications of the Exception 

This example of how bodily rights work when there is a likelihood of a grievous permanent injury has implications about the meaning of bodily rights in the cases of more normal pregnancies, also. One corollary of the example is this: For pro-lifers such as myself who would make a grievous-injury exception, society’s right to outlaw abortion in the case of a normal pregnancy is based, as mentioned, on a balance that is not entirely one-sided. On one side of the balance is the value of a human life, on the other side, the burdens of a normal pregnancy coupled with the woman’s bodily rights. The human life wins out. But the woman’s bodily rights that are there by default never disappear; and therefore – even assuming that a pro-life society were to criminalize the action of the woman as well as that of the abortionist – if a normally pregnant woman were to violate the law and claim those default bodily rights, it would not be fully the same as killing a born child who is not infringing on her bodily rights. It would be, though a defiance of the law, something less than murder. 

Almost all pro-lifers think of the unborn at any stage as full-fledged persons, as members of our human family. And I think it is safe to say that very few pro-choicers think of them that way. Pro-choicers who use bodily-rights arguments think that they can justify abortion regardless of unborn personhood (as mentioned, I find that bodily-rights approach strong but not strong enough in normal pregnancies). So those who use such an approach normally concede for the sake of argument that the unborn are persons; but I think that almost always, they make that concession only for the sake of argument. 

As pro-choicers who genuinely think of the unborn as persons, I can only think of Naomi Wolf, who said, “Sometimes the mother must be able to decide that the foetus, in its full humanity, must die. But it is never right or necessary to minimise the value of the lives involved,” and Camille Paglia, who said, “A liberal credo that is variously anti-war, anti-fur, vegan, and committed to environmental protection of endangered species like the sage grouse or spotted owl should not be so stridently withholding its imagination and compassion from the unborn.” I don’t know how far those two base the pro-choice position they hold on bodily rights, but any pro-choicers who do rely on bodily rights, and genuinely see the unborn as persons, could make statements just like theirs. 

So how should we frame a face-off over a normal pregnancy, between pro-lifers such as me, and those few bodily-rights pro-choicers who genuinely see the unborn as persons? It would be like the pro-choice side declaring, “There is a debatable contest between bodily rights and the right to life of a full-fledged person, in which bodily rights prevail,” and the pro-life side declaring, “There is a debatable contest between bodily rights and the right to life of a full-fledged person, in which bodily rights don’t manage to prevail.” Though it is clear to me personally that the outcome of the contest is on the pro-life side, I wouldn’t call the margin of the outcome (in terms of what should or shouldn’t be legal) a stupendous one. 

One may wonder why there should be so much polarization on the abortion issue, even among people who agree about the statistics, scientific facts, etc. Understanding those few conversations (such as the imagined one above) that are free from polarization helps illuminate the sources of the polarization that more typically occurs. Apart from some very important psychological dysfunctions that are involved, polarization stems mainly from widely disparate perceptions of the unborn, so a conversation such as the above is bound to be free from polarization. Therefore there is another corollary of the “somewhat debatable balance” view of the abortion issue: those few bodily-rights pro-choicers who really see the unborn as our little sisters and brothers will share that “somewhat debatable” view with the pro-lifers who hold it, and those two groups will not be each other’s hated enemies. Both groups will agree that the issue involves a balance that could understandably tip the other way in the other person’s mind. There will not be the acrimony that is usual between pro-choicers and pro-lifers. They will be able to talk. (If the pro-choicers deprecate the unborn, on the other hand, there will be a big fight.) 

A key part of my presentation, remember, has been, “we [pro-lifers who share my view] do believe that the unborn is an innocent human being, but we feel that society has no right to legally prevent a woman from saving herself, even if it is by use of lethal force against an innocent human being, from a developing threat which would not exist without the participation of her own body.” Most of us feel that in the case of the big majority of pregnancies, those that result from a voluntary action by both the mother and the father, society should be ready to demand more risk than in the case of a rape pregnancy, but the above statement holds for us, even in that big majority of pregnancies in which the responsibility consideration is factored in. 

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[1] This note anticipates a certain objection and tries to respond to the objection. Readers who have not felt any objection so far to my argument involving the “rubble” example can skip this note.

I’m trying to show that there are some things about the fact that an unborn child who is a threat to a woman is inside the woman’s body, that should make it more legally justifiable to kill it than to kill a born child if that born child is equally a threat but also equally passive and innocent. And I’m arguing that one of those things, and sometimes a pivotal thing, is the fact that to legally prevent the woman from killing is to oblige her to participate in the development of a threat against herself. But some pro-choicers claim to intuit that anyone should have a right to kill a born assailant, innocent (by reason of insanity or whatever) or not, who threatens even a moderate degree of injury. Based on that intuition, they then cast the unborn as an assailant whom one has a right to kill. Moreover, they intuit that a woman’s bodily rights entitle her not only to passively refuse to let her body be used, but also to actively kill if necessary to save her body from being used. 

Thus those pro-choicers might report that their moral intuitions agree with mine in that a pregnant woman threatened with permanent serious injury would have more right to use lethal force than would the woman in the rubble, yet interpret those moral intuitions as deriving from:

1) their intuition that anyone should have a right to kill a born assailant, innocent or not, who threatens even a moderate degree of injury

2) their intuition that a woman should have a right to actively kill if necessary

3) their view that the unborn is an assailant – more of an assailant than is the 4-year-old. 

So their moral intuitions might agree with mine about the “rubble” situation, but they might say that they agree partly because I have stacked the deck and cast as the counterfoil to the unborn a 4-year-old who is less of an aggressor than is an unborn child. They might disagree with my conclusion that what is necessarily pivotal is the fact that to legally prevent the woman from killing is to oblige her to participate in the development of a threat against her. 

But I am trying to show only why it is that many pro-lifers think that a woman in real danger of suffering permanent serious injury should be allowed to abort (and show that the reason is not that pro-lifers assign less moral value to the unborn than to her). I do think that many pro-lifers would permit a woman to use lethal force in order to avoid a level of injury that would not warrant killing a born person. But would pro-lifers agree 1) that anyone should have a right to kill a born assailant, innocent or not, who threatens even a moderate degree of injury, 2) that a woman should have a right to actively kill if necessary, and 3) that the unborn is an assailant?

Even if pro-choicers sometimes argue insincerely, their arguments are possible to make, so anyone who agrees with my moral intuition that a pregnant woman threatened with permanent serious injury would have more right to use lethal force than would the woman in the rubble, has optionally open to them the interpretation that that moral intuition comes only from agreement with 1, 2, and 3; that is, they could theoretically say that their intuition does not necessarily have anything to do with the fact that to legally prevent the woman from killing is oblige her to participate in the development of a threat against herself. But I think that pro-lifers are 1) unlikely to agree with pro-choicers about the degree of expected injury that would give anyone a right to kill an innocent born assailant, and I think they are 2) unlikely to agree with pro-choicers about the justifiability of active killing (as opposed to passively refusing to let one’s body be used), and 3) very unlikely to agree that an unborn child can be considered an assailant. So I think that pro-lifers who agree with me that it is more justifiable to use force against an unborn who is a threat, than against the child in the rubble, will not only agree with me that “there are some things about the fact that an unborn child who is a threat to a woman is inside the woman’s body, that should make it more legally justifiable to kill it than to kill a born child if that born child is equally a threat but also equally passive and innocent,” but also agree that the pivotal consideration is that to legally prevent the woman from killing is to oblige her to participate in the development of a threat against herself.