Saturday, November 03, 2012

Fetal “Personhood,” Abortion, and Allowing Exceptions for Rape and Incest

On October 26, 2012, a post appeared on a blog titled, "The Dead Author's Club" by "Christine" (her last name does not appear on the post) titled "Fetal personahood and criminalizing abortion: a prosecutor's perspective."  The blog had nothing to do with dead authors, and to Christine's credit she explained this from the ourtset.  Instead, she wanted to express her thoughts about the efforts to ban (or even criminalize) abortion except in certain special circumstances such as rape and incest.  Unfortunately, comments have been closed, so there is no way for me to respond to Christine directly.  Even without that opportunity, though, I felt a response of some sort was warranted.

Christine is a prosecutor, and she therefore has an informed perspective on the practical realities of proving rape or incest.  Given her experience, her voice is definitely a welcome one.  I too have been a practicing lawyer for 14 years (including two years in a Public Defender’s office), so I would like to begin by praising her on some very accurate and important insights she brings to the issue.  She points to some very real practical difficulties with carving out exceptions to abortion.

Are we going to take the pregnant woman’s word for it that she was raped (somehow I suspect that the answer to this question will be “no”)? Is there going to be a form that she has to fill out? Will she be placed under oath? Will there be post-abortion investigations by the police to ensure that she was truthful when she said that she was raped? If we aren’t going to just take her word for it, what will be the mechanism for fact finding we will use?

Christine is absolutely correct that establishing rape or incest exceptions to abortion would be difficult to put into practice.  I can accept this as a sound premise.  However, from this premise Christine concludes that these exceptions should be eliminated and all abortions should be permitted.  In drawing this conclusion based upon our agreed upon premise, she commits a number of logical errors.


Before launching into a detailed analysis of Christine’s argument, it is important to outline what the real point in dispute is between the parties on each side of this issue.  Labels such as “Pro-Life” and “Pro-Choice” may seem innocuous enough, but in reality even these labels are designed to persuade us to adopt one side or the other.  After all, who wants to be anti-life?  At the same time, we all value our freedom to choose, so who wants to be anti-choice?  Isn’t that bad too?  You can see how the label each side attaches to itself is carefully designed to create a certain emotional reaction in favor of its position.  How do we look past the labels and logically evaluate the moral question accurately?

Let us use the label “Pro-Choice” as our starting point.  Those who adopt this position champion a women’s “right to choose.”  This should generate an immediate question in the mind of any critical thinker.  “Choose what?”  Usually the response given to this question is something to the effect of, “choose what to do with her body.”  Again, this is a very general statement that begs for clarification.  “To do what with her body?”  Does a woman (or a man for that matter) have an absolute right to determine what is done to her body?  We require children to receive certain vaccinations before enrolling in school (school attendance is also mandated, so these vaccinations are not elective in any true sense of the word).  Do “pro-choice” advocates mean to suggest that we cannot require vaccinations?  I would venture a guess that they do not.

“But” they may add, “if a child is not properly vaccinated they could spread disease to other children.  Their actions affect other people.  That is why it is acceptable to require vaccinations.”  Exactly.  A right to choose is not unlimited, even when it comes to your own body.  There are circumstances when it is appropriate to limit your right to choose, one of which is when your actions affect other people.

So again, we get back to the original question, “Choose what?”  What specifically is it Pro-Choice advocates want the right to choose to do?  They want the right to choose to have an abortion.  Let’s not dance around the issue.  This is what they want the freedom to choose.

So are we faced with a circumstance when free choice is properly limited?  We already discussed one situation when limitations are appropriate: when your choice adversely affects other people.  Is abortion one of those circumstances?  Maybe, maybe not.  It depends on the answer to another question: “What is it inside the woman’s womb?”  Is it just a collection of the mother’s cells like any other part of her body or is it a human life of its own?  If it is part of the woman’s body then abortion does not affect anyone other than the mother herself and her right to choose should not be abridged.  If it is a human life of its own, however, then her choices affect someone else, and we have already seen that this is an appropriate circumstance in which to limit someone’s choices.

So the real issue in abortion is whether that thing inside the womb is a human life or not.  If it is, then abortion kills an innocent human life.  Certainly this is not something that anyone has the right to choose to do.  If it is not a life, though, then the woman is entirely correct to tell others to stay out of her private business.  If the thing inside the mother is not a human life, no justification for abortion is necessary.  If it is, no justification is adequate.

This illustrates two things for us.  First, the real focus of any inquiry into abortion must be whether the thing inside the womb is a human life.  The entire question of the morality of abortion hinges on how we answer that question.  Second, the reason “Pro-Life” and “Pro-Choice” labels can both sound appealing is because they both implicitly assume opposite answers to this question.


Now that we have properly framed the question, it will be easier to respond to Christine’s main argument.  Let us begin by clarifying the difference between a “valid” argument and a “sound” one.  A valid argument is one in which the premises, if true, correctly lead to the conclusion.  A sound argument is one which is not only valid, but which also has true premises.  Christine’s argument fails even the initial test of validity.

In its simplest form, Christine’s premises could be summarized as follows:

Premise 1: If a policy would create insurmountable difficulties in applying exceptions, then it should not be implemented. (If A, then B)
Premise 2: A policy outlawing abortions except in cases of rape and incest would create insurmountable difficulties in applying exceptions. (A)
Therefore: ?

What is the proper conclusion from these premises?  Logically, if true, then a policy outlawing abortions except in cases of rape and incest should not be implemented (B).  But notice that this does not tell us what policy we SHOULD institute.  There are two logical possibilities, both of which are completely consistent with this conclusion:

(1) A policy allowing all abortions without exception; or
(2) A policy banning all abortions without exception.

Both of these options avoid the logistical problems of implementing exceptions because neither of them allow for exceptions.  Christine’s logic, however, is as follows:

Premise 1: If a policy would create insurmountable difficulties in applying exceptions, then it should not be implemented. (If A, then B)
Premise 2: A policy outlawing abortions except in cases of rape and incest would create insurmountable difficulties in applying exceptions. (A)
Therefore:  We should institute a policy allowing all abortions without exception. (C)

This conclusion does not follow from these premises.  Her argument form is invalid.


Another logical error Christine makes is one that is all too common in abortion discussions: circular reasoning.  This error occurs when your argument implicitly or explicitly assumes the conclusion you are seeking to prove.  Take a look at the following comment in Christine’s post:

In addition, however, to the extraordinary presumption and paternalism inherent in the position that you – whoever you are – should have more control than the pregnant woman over her reproductive future, is the absolutely, unequivocally impossible enforcement situation that this policy would create.

Notice what is going on here.  Christine assumes that the issue in the abortion debate is people believing they “should have more control than the pregnant woman over her reproductive future.”  But is that really what the debate is about?  What is missing from her comment?  She makes no mention whatsoever of the object being aborted.  How can any justification for abortion be sufficient if it completely ignores the thing being aborted?

Elsewhere she refers to it as a “cluster of cells.”  But that is the ultimate issue, isn’t it?  What is this object inside the womb?  Is it only a “cluster of cells” or is it a human being?

She objects that “personhood for a cluster of cells means that abortion could equal aggravated murder,” as if this is some obvious problem.  But the only reason she finds this objectionable is because she has already decided that the object is only a “cluster of cells.”  Of course it is ridiculous to call the removal of a cluster of cells “aggravated murder.”  But is it so obvious that intentionally killing an innocent human being, no matter how small, should be murder?  Her outrage on this issue is borne by her preconceived conclusion, but all the while she fails to realize that she is avoiding the real question she must answer.  Is the object inside the womb a human being?

So in the end this is a classic example of circular reasoning.  Christine’s outrage against abortion rights activists is only justified if the thing being aborted has no rights of its own worthy of consideration; i.e., if it is only a cluster of cells.  But every argument she presents starts out by assuming this very thing she needs to prove.  It is another example of an abortion rights advocate avoiding the real issue.


Christine’s circular reasoning ties into another problem, her repeated use of the term “personhood.”  Pro-life advocates who fall into the trap of using this term are only helping their opponents evade the real issue.

What is a “person” and how is it different from a “human being?”  Use of these two different term amounts to a verbal sleight of hand, attempting to draw an imaginary “line in the sand” such that some human beings have rights (i.e., “persons”) whereas others do not.  Do you enjoy a right to life because you are a human being?  Not necessarily.  According to those who use the word “person,” only “persons” enjoy such rights.  You can be “human” but not a “person,” and therefore have no rights that can be infringed upon.

This argument amounts to humanity “plus.”  You must be human “plus” have some other criterion in order to be a “person.”  What that criterion is varies depending on whom you speak to.  Some say it is viability.  Some require physical birth.  Others evaluate your level of consciousness.  All of these criteria fail because inevitably, if followed through to their logical conclusion, they lead to denying rights to someone even the advocate does not think deserves to die.  To Christie’s credit, she recognizes, “If it is a person, then it absolutely must enjoy the same rights and protections of every other person.”  However, using the term “person” to define the issue is another tool to avoid facing the real issue.

It is actually quite simple to prove that the item inside a mother’s womb is its own human being from the moment of conception, separate and apart from the mother.  It is not simply some “cluster of cells” belonging solely to the mother like her appendix or kidney.

Imagine a defendant in a murder trial.  Certain hairs were found at the scene of the murder.  The prosecution claims they belong to the defendant.  The accused, however, points out that the victim had a large dog that was prone to shedding and claims that the hairs were from the victim’s dog.  Why do you never see this kind of defense raised today?  Frankly, it is an extremely simple dispute to resolve.  DNA testing on the hairs would show us whether they belong to a dog or a human being.  Human DNA does not look like canine DNA.  Furthermore, DNA tells us which specific human being those hairs came from. Each human’s DNA is different.

If we were to take a DNA sample from a pregnant woman’s kidney, the DNA signature would not only tell us that the sample came from a human being, it would also tell us that it came from that particular woman.  What would happen if we took a DNA sample from that “cluster of cells” that Christine so eagerly believes is synonymous with any other part of the woman’s body?  It should come as no surprise that this DNA sample would tell us the cells are human.  But more importantly, that sample would tell us that it came from a different human being than the mother.  Unlike the sample from the kidney, the sample taken from this “cluster of cells” would bear a different DNA signature than the woman.  It is not simply her body at issue.  Someone else’s body is being implicated in this whole transaction as well.

So if we use the term “human,” it becomes much more difficult for abortion advocates to make their case.  Only by arguing that rights are tied to some separate category called “personhood” can they avoid this implication.  But there is a reason we call them “human rights,” not “person rights.”


An ad hominem attack is an attack on the person instead of the argument.  Suppose I disagreed with Einstein’s theory of General Relativity.  You listened to all of Einstein’s well-reasoned arguments then turned to me for my response.  I only say one thing, “Einstein is a jerk.”  Have I responded to Einstein argument at all?  I have not said anything to rebut either the validity or the soundness of his presentation, so I have not added anything to your understanding of the debate.

That is the essence of an ad hominem attack.  Even though it is a logical fallacy, it is unfortunately a very effective device to persuade people to take your side.  It is what I call the “schoolyard bully” approach to argumentation.  It is truly shocking how many people, when they see a bully picking on an innocent child, will stand behind and try to befriend the bully.  This is not because they think the bully is correct.  They just do not want to be the next victim.

Ridicule is a very effective tactic.  At the atheist’s “Reason Rally” earlier this year in Washington, DC, Richard Dawkins encouraged his listeners to “ridicule and show contempt" for the doctrines and sacraments of the religiously-minded.  Did he address the merits of these doctrines?  No, but his speech was effective in rallying people to his cause nonetheless.  As responsible thinkers, though, it is our responsibility to see through such vacuous attempts to curry our favor and instead evaluate all claims on their merits.

Christine is not immune from this logical fallacy, and in fact employs it numerous times throughout her post.  Forgive the explicit nature of some of this language, but these are direct quotes from Christine:

“…you should shut your effing pie hole about it.”

“And all of this chatter and talk is offensive, it is demeaning, it is patronizing, and it is unconscionable.”

 Stop with the pandering bullshit…”

Labeling your opponent as “offensive” and “patronizing” can be very effective.  After all, nobody wants to be patronizing, so why would we want to be associated with those who are?  The problem is, of course, is that the fact you are offended by something does not make it wrong.  Perhaps the reason you are offended is because you are wrong and passionately refuse to face the illogic of your own position.  That is why ad hominems should be avoided at all costs.


Christina also repeated an oft-used argument, namely that abortion only concerns women so men have no business expressing an opinion on it.

“…the group of mostly men propounding this policy seem to have absolutely no FREAKING idea what they are actually trying to do here.”

Again, notice how this is a red herring that completely misses the main issue.  It is just another form of the ad hominem attack.  Instead of saying, “you are a jerk therefore you are wrong” we are saying “you are a man therefore you are wrong.”  What does the gender of a speaker have to do with the merits of an argument?  If a male and a female both utter the exact same words concerning abortion, are the words somehow more “true” when spoken by the female than when they are spoken by the male?  Remember that the key fact the abortion proponent must prove is that whatever is inside the womb is not human.  With this in mind, look at the logical structure of this argument to see if it is valid:

Premise 1:      You are male.
Premise 2:      You believe abortion is wrong.
Therefore:      The object inside the womb is not human.

The argument does not even make sense.  Then again, proponents who say things like this rarely evaluate the logic of their own statements.  They just put the thought “out there,” as if they have made their entire case by simply pointing out that their opponent has a Y chromosome.  In reality they have not said anything of value and are simply resorting to a more subtle form of name-calling.

In a variation on the same theme, Christine pulled out the old argument that unless you have experienced something, you cannot have an opinion on it worthy of consideration.  Typically this is also used to disqualify men from expressing an opinion on abortion.  Christine, however, in an interesting twist, uses it in connection to rape.

“…unless you’ve been raped, you cannot understand what it is like to be raped, and you should shut your effing pie hole about it..”

Christine starts out with a statement I don’t think anybody will disagree with; i.e., if you have never experienced rape, you cannot truly appreciate the horrific trauma it involves.  In as far as this statement goes, Christine is obviously correct.

But then look at the conclusion she draws from that fact.  Cleaning up the language, Christine is arguing that unless you have been raped, you should not express an opinion about it.  When I come across statements like this I have to wonder if the proponents have made any effort to think through what they are saying.  For instance, does Christine understand that the standard she is setting up would equally disqualify people from expressing opinions either for or against rape (or abortions in instances of rape)?  If someone has never been raped, by Christine’s standard they have no basis to say that it is either a bad or a good thing!  IN fact, if Christine has not personally been raped (and I would not expect her to share if she had been), her standard would be self-defeating because she would be disqualifying her own opinion!  That clearly can’t be true.

Do we really need to experience the same feelings as someone in order to say whether their actions are right or wrong?  Do I need to have pedophiliac dispositions in order to say that acting out pedophiliac fantasies on some unsuspecting child is wrong?  I may have never been a pedophiliac, but I have been a child and I know as a child I would not have liked being sexually abused.  That is all I need to know in order to conclude that no amount of pedophiliac dispositions will justify abuse of an innocent child.

Similarly, I do not need to be a woman to know that it is wrong to murder an innocent child.  I can sympathize greatly with the victim of rape, but I do not need to have been raped in order to know that murdering an innocent child is wrong.  People may object that this seems insensitive to the rape victim, but even that reaction is committing circular reasoning.  Why is there no cry about being sensitive to the innocent child?  The only answer is because the person expressing outrage over the alleged insensitivity does not believe there is a child, but that again is assuming the answer to the ultimate question.


After all these reflections on Christina’s arguments we are in a good position to finally take a look at the formal argument against abortion:

Premise 1: The intentional killing of an innocent human life without adequate justification is wrong.
Premise 2: Abortion kills an innocent human life without adequate justification.
Therefore, abortion is wrong.

Unlike Christina’s argument, this one is clearly valid (i.e., its conclusion is properly derived from its premises).  In order to challenge it as unsound, you must attack the truth of one or the other of the premises.

Few people would try to argue against premise 1.  In fact, people who believe it is moral to kill innocent humans without justification are typically called psychopaths or sociopaths.  The challenge will have to be raised against premise 2.

The problem, as we have already seen, is that the object inside the womb carries its own unique human DNA signature.  In any other circumstance this signature would be sufficient to identify something as a human life.  If we are to attempt to argue for a different outcome here, it begs the question of whether we are speaking logically or emotionally.

If it is a human life, then no justification will be sufficient for exterminating it unless that justification would also be sufficient for killing any other human life, such as a two year old child or a grown adult.  Can someone kill an innocent human being because the other person’s existence is uncomfortable or inconvenient?  Can a mother kill her two-year old child because she does not want to be burdened with the responsibility of raising him or her?  Can we kill a Downs Syndrome child because in our assessment that child’s life is not worth living, or because we believe that child will be an economic burden on society?  Anyone who commits murder under any of these circumstances would be judged to be pure evil by the vast majority of society.  So if the womb contains a living child, none of the customary justifications used for abortion will suffice.


This brings us full circle back to the issue that motivated Christine’s post.  Even if abortion in general is immoral (as I believe is clearly demonstrated), should exceptions be made when the conception was via rape or incest?  For different reasons, the answer to this question is both extremely difficult and also quite simple.  It is difficult because we are clearly dealing with some of the most evil violations that can be committed against a person.  Any discussion of this question that does not begin by acknowledging the horrid nature of the act that was committed against the woman is unfeeling.  But it is also simple in the sense that we have already established the methodology needed to answer the question, and by applying that methodology the answer comes through loud and clear.

Rape is evil.  Incest is evil.  But when discussing these evils we cannot lose sight that infanticide is also atrociously evil.  If abortion kills a child, as I believe we have already shown, then it too is equally evil.  So as hard as it is for us to face the evils committed against the pregnant woman, we must realize that we are evaluating evils on both sides of the equation and ask ourselves whether the evil against the mother justifies committing another evil against the child.

The test we used previously when evaluating abortion was, “If it is a human life, then no justification will be sufficient for exterminating it unless that justification would also be sufficient for killing any other human life.”  So let us apply that same test to rape and abortion.  Assume you are confronted with a two-year old boy who was conceived by rape or incest.  Does the manner of the child’s conception give the mother the right to kill him?  If the answer is “no,” and if (as we have seen) there is no moral difference between the born versus the unborn child, then the answer should be the same for both.  The past evil action committed against the mother cannot justify committing a new evil act against an innocent baby.  Given the logical conclusions we have come to, we can sympathize with the horrible evil the woman has suffered, but our responsibility to that child is also clear.


Few issues seem to arouse as many hot emotions as does abortion.  The emotional component of Christina’s post came through clearly.  The challenge with issues such as these is to avoid forming our opinions based upon our emotions and try our best to use calm and rational reflection.  When we apply solid logical principles and avoid common fallacies, none of the justifications for abortion withstand scrutiny.  While Christina began her post with some insightful observations about the impracticality of carving out rape and incest exceptions, she allowed her apparent emotional feelings in favor of abortion to blind her to the trail down which a reflective and rational evaluation should have led her.

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