A friend recently posted a remark on a social media site to the effect that those of us who believe abortion should be legal, and that it may in fact not be morally objectionable in at least some circumstances, are just wrong and have no basis for our position. I started typing a rejoinder, but I was on my phone at the time and felt that the subject deserved a full response rather than a short, awkward post. It is a subject that is important to many, so we should make our cases carefully. So this is a late but more thorough answer to my friend's observations.
The comment made by my friend was familiar; I have heard it elsewhere, and in fact used to subscribe to a similar position myself. The gist is to point out (with the supposed sting of hypocrisy self-evident à la reductio-ad-absurdum) that many, perhaps most, who believe abortion should be legal and available, also are against the death penalty. This is not to say that everybody who is pro-choice is also anti-death penalty, or vice-versa. This generalization has more to do with how most people with particular opinions on these matters fall into predictable political categories, at least here in the United States. Those who identify as so-called pro-life tend to be conservatives, most often Republicans; those coming down on the pro-choice side tend to be liberals, most often Democrats.
My friend's point is that someone who is anti-death penalty obviously believes in the sanctity of life; my friend believes that this contradicts the stance whereby it is acceptable to terminate a pregnancy - to end a human life through deliberate action.
Of course, the obverse argument also holds with respect to apparent hypocrisy - if it is acceptable to terminate a human life (vis-a-vis the death penalty) then why is it also not acceptable to terminate a pregnancy?
Those who hold to the latter (pro-life) position often buttress their response with an appeal to personal responsibility, and to the notions of justice and innocence. A person condemned to the death penalty is responsible for his or her actions, and is receiving impartial justice meted out in a fair court hearing; a fetus has caused no harm to anyone, is incapable of even contemplating such actions, and is therefore completely innocent.
The pro-death-penalty component of this justification has several flaws. The first flaw is that there is no human justice system which is perfect in its record of convictions, whether that be manifested in letting a guilty person go free or in punishing an innocent. This has been proven time and time again, not just in corrupt systems under the control of despotic governments, but also in systems that are built upon and hold themselves the highest standards of impartiality. Many people have been exonerated, even on "Death Row," - the Innocence Project places that number at 20 out of 349 exoneration's by DNA evidence alone.
Virtually all modern theories of human behavior are deterministic; that is, they admit of no supernatural or non-physical causes. This has many implications for our self-understanding, and among those implications is an erosion of the notion of retributive justice. An ethical framework that takes a scientific understanding of human behavior into account has no place for retaliatory measures, but rather seeks either a path to rehabilitation or simple removal from access to society at large. Without getting into the problematic details behind the popular conception of "free will" I will simply state that we are not in control of our faculties and destinies in the manner we believe. A good primer on this subject is Sam Harris' short but pointed book, "
Free Will." Thus, the death penalty, if thought of as some form of retribution, is morally reprehensible.
It is often said, or assumed, that the death penalty is an effective deterrent. The vast majority of criminologists, however, do not subscribe to that belief. States without the death penalty have lower homicide rates than those with the death penalty.
Even if it were an effective deterrent, however, the question would still remain as to the number of deterred capital crimes versus the number of convicted, and executed, innocents. And even if we were capable of confidently putting numbers to these, we would still be left with the question of whether that deterrence is worth the price paid in innocent lives, in terms both moral and practical. I personally have no desire to perform that calculus.
I agree with one component of the first part of the pro-life side: a fetus has committed no crime, bears no responsibility for any actions, and therefore should not suffer punishment. However, a closer look at this will explain why I believe pro-choice is the only tenable position.
When someone has an accident, or a heart attack, and their heart stops beating, there are often heroic efforts undertaken to revive them. Why is this? Too, consider under what circumstances this is not done. In many cases, no attempt to revive (coded as DNR for Do Not Resuscitate) is made - this is usually because there is zero possibility for recovery due to severe brain damage or other serious injuries that are beyond our abilities to heal. Recently I was involved in a decision like this for my own father - he was very elderly and was in poor health - if his heart failed, they could restart it, but he had also likely suffered a stroke, was totally unresponsive, and had numerous other health issues. His quality of life would have been nonexistent - this was a certainly beyond anyone's doubt. Personally, I was convinced that he was already beyond any suffering; I watched the doctors attempt to get a response from him, saw the tests they performed, and also witnessed him undergoing what would otherwise be painful experiences without so much as a single flinch.
If a person shows no brain activity whatsoever, they are considered for all intents and purposes as deceased - brain-dead is the term used. This is because all meaningful human activity requires a working brain - we are not conscious without our brains, we have no sense of self, we have no volition. In many cases, heart resuscitation is not attempted because the brain is not functioning. Organ donation takes place only if the brain has no activity - and this sometimes occurs even if the heart is still beating, and even healthy.
Those without a functioning brain cannot suffer. They cannot suffer because they have no brain operations capable of processing sensory input, no consciousness with which they could experience it, and, in many cases (like severe physical injuries), they have a non-functioning nervous system which couldn't transmit any sensory data even if there were a functioning brain to receive and process it into the data of consciousness.
The boundary between life and death, then, hinges on the presence or absence of consciousness and brain activity, and the two are undoubtedly intertwined. This is a matter fairly settled both legally and ethically. To define completely and exactly what comprises a human life may be impossible or beyond our ability for many years. But we do know that at least two prerequisites for human life are exactly those things: consciousness and brain activity (it may be that at some point in the future we define or create artificial life or AI, in which case, of course, the medium of electronics or computer networks/circuitry will be a surrogate for the brain).
In a piece published in "Essays in the Philosophy of Humanism," I put forth an argument that what makes us human (in an ethical sense), and what obligates us to care for and about one another, is the presence of a mind - even a partial mind obliges us to extend the social contract. Implicit in this, of course, is that the absence of any mind whatsoever indicates an absence of the corresponding obligation. Lack of a mind means that a being or entity possesses no responsibilities, holds no social offices, and cannot therefore be an inevitable, independent, undisputed member of society.
This is not to say that we are beholden to the notion that those without minds are worthless. My father was still real and in some sense present to me, and I felt compelled to treat his body with respect even though I knew he was, for all intents and purposes, gone.
Now, the situation with a woman who is contemplating an abortion is similar in many ways to the deliberations that I, along with my brothers and sisters, had regarding my father. It would have been grossly inappropriate for anyone outside of the immediate family to intrude on our decision. Recall the disgusting legal meddling by Governor Jeb Bush, and his brother in the White House, in the Terri Schiavo case; Terri was in a persistent vegetative state from 1990 until 2005, and was the subject of numerous lawsuits which brought about repeated insertions and removals of her feeding tube, which her husband (who was also her legal guardian) wanted removed so that she could die in the manner that he felt she would have wanted. A postmortem examination exonerated the claims that she was in fact brain dead with no chance of recovery. Polls after this case revealed that a majority of the public believed that the husband should have had sole authority to decide the fate of his wife.
A woman who is pregnant, or even thinks she may be, is in a similar situation to Michael Schiavo. One difference is that instead of a husband-wife relationship, we have a fetus inside of the mother's body - a relationship that is even more personal and intimate than that of a married couple. The fetus, up until about the 26th week, does not possess even the substrate for the brain components that enable consciousness, and it takes perhaps another eight weeks for the brain to begin to integrate its two hemispheres in the manner necessary to support sentience or consciousness. The developing life does not for some amount of time (the duration of which we may disagree about but which is finite and nonzero) possess the prerequisite features of humanity discussed above. A pregnant woman carries within her body a developing entity which, in many cases but not all, may acquire the attributes that in other spheres of consideration impel us to assign the status of personhood.
I am sure there will be those reading this that may be horrified at the clinical tone of the previous two sentences. I am not intending to advocate that a fetus has, or should have, no value whatsoever. What I am laying out is the case that there is in fact a case to be argued. There is room for debate, and what I am also claiming is that there is sufficient and serious doubt, given these considerations, requiring that we defer to the wishes of the woman. A woman may decide that she is happy about the prospect of giving birth, and she may even love being pregnant, but she may also decide the opposite. How can we presume to dictate or restrict her actions in this matter? If a woman decides to attempt carrying her pregnancy to term then we should definitely support her; but, we should also support her if she feels there is reason to not carry it to term. On what reasonable, non-contradictory ground may we justify the former and not the latter?
I fail to see, given the foregoing discussions, how anyone could assume they had a right to interfere with her judgment or decision, or, for that matter, any deliberation or discussion she has with her medical doctor, or any course of action they may mutually decide upon.
The only arguments of which I am aware that may counter this, at least in the minds of some, are based in religious grounds that define the start of human life in an unscientific fashion. If religious arguments are the moral or legal yardstick, should we then outlaw male masturbation on the basis of the Catholic church's stance regarding the primacy and sanctity of sperm? Perhaps we should outlaw consumption of meat based on Hindu beliefs, or force people to wear surgical masks and sweep the ground before themselves as they walk so as not to injure any living creature as some Jain priests do. Religious arguments are a sinkhole of ambiguity and must be discarded at the outset. Our only recourse is reason and science, and they clearly tell us that we must respect the wishes of the woman over any wishes or beliefs of our own.
