Untangling Michelle Goldberg’s Confused Thinking on Abortion

Well, I predicted it, didn’t I?  On Friday I wrote a post talking about how Ariel Castro might be tried and executed for the unlawful termination of Amanda Berry’s children (thanks to Ace for the link).  And I predicted at the time we would see pushback from the pro-choice side and what do you know?  Pro-choice feminist Michelle Goldberg is making the argument that if we try Castro for the murder of Berry’s fetuses, this is somehow a blow against choice or something.  Let’s examine her arguments for a moment.

First, she is complaining that this means “that legally, ending a pregnancy is a greater crime than keeping three human beings locked in a squalid dungeon for a decade.”  Well, she is viscerally right.  What Castro allegedly did to those three women calls for the death penalty on its own, even if no child was conceived and killed.  But this potential incongruous result isn’t the fault of the people at large, but the Supreme Court’s activism.  The Supreme Court had long said that raping adult women could not be a capital offense and more recently added that this was the case even when the victim was a child (as these girls were when abducted).  I have considered those opinions ultimately unjust, but the fact we can’t get the fullest measure of justice—execution—for those women is no reason to deny justice to those unborn victims of Castro.

Besides there is a practical benefit of making this guy dead so he can never bother anyone again.

Also Goldberg is concerned that the precedent might then be applied to women who carelessly (or otherwise) harm their own bodies.  “They’ve been employed to prosecute pregnant drug addicts, alcoholics, and those who refuse medical interventions recommended by doctors.”  So with the first category she apparently wants to protect a woman’s right to choose illegal drugs.  And likewise she is concerned about legal but self-destructive behavior that harms third parties.  Personally I don’t see how that is different from drunk woman accidentally driving her car over a cliff with her (fully born) baby in the seat next to her, killing her child but not herself.  Certainly in that case charges for negligent homicide would probably be appropriate.

Only the last example involves a situation that might be sympathetic and you wonder what Goldberg is leaving out.  Yes, if the medical procedure recommended engendered something invasive or dangerous that would seem to be a poor reason for prosecution especially under the current law of abortion and privacy.  On the other hand, maybe all the doctor said was “you need to start taking these prenatal vitamins or your fetus will die.”  So I would like to hear the facts before deciding this is outrageously outrageous.  I have asked her for a more specific example and I will let you know if she responds.

The reason why I wonder what Goldberg is leaving out is because she left a great deal out of another example.  She cited the Bei Bei Shaui case as another example of supposed prosecutorial abuse, writing:

a pregnant woman named Bei Bei Shuai tried to commit suicide in Indiana by drinking rat poison. Friends rushed her to the hospital and she survived, but her baby, born by Caesarean at 33 weeks, suffered a brain hemorrhage and died. As a result, she was charged with murder and is currently awaiting trial in September.

Well, even from her own words, what happened precisely is that she caused the death of a fully-born infant.  The “fetus” was a fully born baby and then it died.  This was indeed significant in the appeal of the case affirming that the case can go forward:

The State also contends that even though A.S.'s birth changed her legal status from "viable fetus" to "human being," it was Shuai's actions that caused A.S.'s death. Therefore, the date she ingested rat poison should have no bearing on how Shuai is charged or prosecuted.

The State, to prove causation, need only prove the injury inflicted "contributed mediately or immediately" to the victim's death...  Even if there was an intervening cause of the victim's death, it does not absolve the defendant of murder unless that intervening cause was so extraordinary and unforeseeable that it would be unfair to hold the defendant responsible.

In fact, as reported on this very website, the same court held that when Brett Kimberlin’s last bomb tore apart the body of Carl DeLong, leading to DeLong’s suicide several years after the fact, that Kimberlin was responsible for that death.  Which is why I can say today that Kimberlin caused the death of Carl DeLong.  So what has happened here, according to the prosecution, is that Ms. Shaui took actions that ultimately led to the death of a fully-born baby.  And Ms. Goldberg would like to offer the defense that Ms. Shaui did it when the person in question was an unborn fetus.

What was also significant in the appellate case was that Ms. Shaui “had intent to kill [her baby] independent of her intent to kill herself.”  You see Ms. Shaui had been having an affair with Zhilian Ghuan, a married man and probable cad.  Mr. Ghan broke off that relationship even though he knew her to be pregnant with his apparent child.  So after Shaui researched suicide methods and chose the ingestion of rat poison, she wrote an email to Ghuan:

On December 23, when Shuai was thirty-three weeks pregnant, she wrote Guan, saying she felt she and the fetus were a burden on Guan, she had resolved to kill herself, and she was "taking this baby, the one you named Crystal, with [her]." (State's Ex. 25 & 26.) Shuai then ingested rat poison. Shuai called Guan and told him she had ingested rat poison and was going to die.

So according to that, part of her intent was to kill the fetus.

And notice something else curious here: she called it a baby.  The truth is that abortion has inserted a bit of B.S. into our language.  If a woman is expecting and joyful, we ask “when is the baby due?”  Some people then ask if they can “touch the baby” by holding her stomach (do not ever do this without the woman’s consent).  And of course if there is fetal movement felt on the surface of the mother’s belly, we say “the baby kicked.”  Likewise, if the woman suffers a miscarriage, we say she “lost the baby.”  We don’t tell a woman distraught by such a loss that she only lost a “fetus.”

And yet if woman aborts, we say she killed a fetus.

Or consider the mini-controversy created when Publix put out this ad:

Over at Twitchy they reported on several people seeing the ad as pro-life.  Which prompted Claire O’Connor to note that Publix denied having any pro-life agenda at all.  And you know what?  I believe that is probably true.  The reality is that in our culture we naturally think of it as a baby.  So Publix’s ad writers, probably with absolutely no agenda at all, just naturally imagined a family treating pregnancy exactly the way most people do most of the time: they treated it as a baby who just ain’t come out yet.  In fact, I would not be surprised if this was a recreation of a real scene that occurred in one of the ad writers’ lives.

But because abortion has become an oddly central plank in the feminist movement, the pro-choice movement has driven us to contort our language to literally dehumanize the babies growing in the bodies of these women.  The Supreme Court led the way on this front, writing in Roe v. Wade that

The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. 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. The appellant conceded as much on reargument.

The Supreme Court considered it absolutely essential to deny the personhood—i.e. the humanity—of the fetus in order to justify abortion and pro-choice advocates have mirrored this approach ever since.

The irony in this is that with her own language, Bei Bei Shaui seems to have rejected that newspeak.  She didn’t say she was “taking this fetus, the one you named Crystal with me.”  She said she was going to kill their baby.  She was admitting that in her mind what she was planning was a murder-suicide, very likely in a fit of spite toward Mr. Ghuan (her anger being justified even if her actions were not).  And while that kind of statement doesn’t determine the legal status of the life inside her, it does make it a little strange to dress her up in the cloak of abortion rights.

Meanwhile, the facts of the Shaui case also lays bare another problem with the “treat the fetus as a nothing” approach.  Her suicide email suggested that she was motivated as much by a desire to hurt her ex-lover as to end her own suffering.  It recalls for me one of the more thought-provoking episodes of Law and Order called “Breeder.”  That is season 4, episode 13, for those of you who want to look it up on Netflix and the like.  The episode featured a pair of grifters, a man and a woman, who promised their unborn child to multiple childless families in order to get money from them.  A.D.A. Ben Stone (Michael Moriarty) charged them with extortion because she constantly threatened to end the life of the fetus if she didn’t get payment from those families.  After all, it is as much extortion to threaten the life of another person (i.e. “do this or I will kill your wife”) as it is to threaten your own (i.e. “do this or I will kill you”).  The defense attorney, predictably, argued that it is not extortion to threaten to kill a fetus because it is not a person under the law.  They made these arguments in the judge’s chambers and Stone made this argument as well: “The statute also covers threats to damage property.  And if, as you state, a fetus is not a person at any point in its gestation—”

I screencapped the judge’s response as she interrupted him, because really a picture captures it in a way that words cannot:

If you have trouble reading it, she cut him off, saying, "I don't want to hear the end of that argument, Ben."  Stone was clearly about to argue that if the law can’t treat the fetus as a person, then it should treat it as property.  The judge didn’t have to say why the argument was unacceptable to her, but at the risk of hitting you over the head with what is obvious, our nation’s sad history with slavery is exactly why it is dangerous to call any human “property.”

But if the defense got its way, the fetus would be instead be treated as a nothing.  The woman could extort money based on a threat to murder her unborn baby, and the family that wanted to adopt would have no remedy at law.  Which would present another incongruity in the law that would be laid at the feet of feet of those who think feminism begins and ends with abortion.

And indeed why is abortion so central to the certain feminists?  After all, many of the founding mothers of feminism, like Susan B. Anthony, were pro-life.  They had no trouble reconciling the idea that women should be free to work, to vote and so on, with the idea that abortion should be severely restricted, if not banned outright.

Well, to a certain extent I think it is for the same reason why a paraplegic thinks that the right to own a wheelchair and to demand that the world be modified to be wheelchair accessible is central to his or her liberation.  This is true for most disabilities and the need to accommodate them.  The desire of a disabled person to be accommodated is the desire for maximal freedom in every respect.

The pro-choice feminists likewise are seeking an accommodation.  And as suggested by my choice of language, I do think it is almost as though they see women’s reproductive role as a disability.  Of course there are women who wear the ability to bear children as a badge of honor and think men are poorer spiritually because we cannot.  But in purely material terms, it appears to be largely all downsides for women.  If we are to be cold and clinical about this, the state of pregnancy entails a temporary disabled status by which for nine months women increasingly lose their ability to operate effectively until they are typically so disabled that they can’t even work.  And I haven’t even mentioned pain, morning sickness and so on.  And while it is illegal for employers to discriminate against a woman based on pregnancy or even the fact she might get pregnant, we know it happens regardless.  Yes, birth control pills have a 99% effectiveness but that 1% of the time the pregnancy might come at potentially the worst possible time in a woman’s life.  Indeed Murphy’s Law dictates this to be the case.

As I wrote on disability accommodation and gun ownership:

And gun ownership by the handicapped also taps into another big philosophical belief I have about the handicapped.  In a very real way, humanity is the disabled species.  Think about it.  Compared to other species, we are slow, weak, blind and deaf; we have little sense of smell, our teeth and “claws” are weak, etc.  If left naked in the wild we would be easy supper for the other animals out there.  And yet we dominate the planet for one simple reason: our brains.  And those brains have allowed us to create tools that in turn makes up for our deficiencies.  So we can’t run as fast as a cheetah, but we invented motor cars that allowed us to move even faster and for long periods of time.  We can’t see like an eagle, so we invented the telescope and can see things no other creature can.  Our brains haven’t just leveled the playing field between animal and man, but in fact gave us a critical advantage over them which is why we rule this planet and no longer have any natural predator (except ourselves).

And in no area has our brains been more critical in making up for our psychical deficiencies than in combat.  Now we might suspect a few tough souls like Chuck Norris or Todd Palin** could take on a grizzly bear with their bare hands, but for most of us, if we don’t have a gun we are SOL (and from my understanding, even with a gun they are hard to kill).  Our only option is to run.

So to tell a disabled person that they can’t use artificial help goes directly against the grain of what we have done as humans.  For instance, I have difficulty writing by hand.  But it only affects my ability to write by hand, so I buy a computer and I am rendered “normal.”

Likewise, Mr. Boyd has cerebral palsy.  I have known people with that condition and it almost certainly impairs his ability to win a fistfight.  I’m not saying he can’t do it, but it’s almost certainly harder.  Now, the anti-gun approach would tell him tough and that he would just have to remain defenseless and hope that if someone attacks him that he cops get there in time.  But the second amendment allows him to say, “screw that,” and defend his own life and safety as need be.

It is profoundly human in that sense for women to say, “I would like us humans to use our big brains to master a genuine difference between the sexes: the fact women have babies and men do not.”  And much like many cases with disability accommodation, in order for the accommodation to be provided, someone else’s rights must be curtailed.  A business owner might prefer to avoid the expense of making his business wheelchair accessible.  Heck, he might not even like the handicapped.  But his failure to accommodate limits the freedom of disabled people and we as a society have said that in most cases the rights of the business must give way.

The problem in the case of abortion is the fear that you are actually costing people’s lives when you do it.  And if we can borrow a little more language from the law of disability accommodation, what the pro-life forces are saying is that at some point after conception and before birth, the fetus becomes a living baby in gestation and therefore the desire for an abortion is an unreasonable request for accommodation.

Indeed this focus on accommodation is exactly why Justice O’Connor seems to push what for me was originally a mystifying concept in the law: the viability standard.  Particularly with justices Justices Souter and Kennedy in Planned Parenthood v. Casey, O’Connor  argued that abortion could not be banned until the fetus reached viability.  I admit for the longest time I found this argument hard to understand for two reasons.  First, because my focus was primarily on the fetus and second, because she and her colleagues were being cryptic.

From the orientation of the fetus, it is strange to suggest that a being was unworthy of protection until it could live independently.  Christopher Reeves, after his accident riding horses, was unable to live independently of machines the rest of his life.  And yet no one would argue that others should be allowed to kill him for that reason.  And likewise conjoined twins, a.k.a. “Siamese” twins, often live sharing an organ and the like.  In these cases one twin is dependent  of the other for life, and the independent twin could potentially live a more “normal” life without the other and yet we don’t say it is okay for one twin to kill the other.  When it comes to the status of the fetus viability makes no sense.

But once you change your orientation toward the mother and her desire to be accommodated it all makes sense.  What O’Connor was thinking, but didn’t quite say (perhaps because it was indelicate or just plain odd) is that if a woman didn’t want to be her baby after it reached viability, she could just give birth early, give up her rights as a mother to the state and wash her hands of the entire thing.  So her right to abort the fetus ends—except in cases where the mother’s life is in danger—the moment she can give birth without killing it.

Which is still pretty strange as logic goes.  For one, has anyone ever heard of a woman doing such a thing?  Asking a doctor to induce labor early, and then giving away her baby, so she can stop being pregnant without killing the baby?  Indeed, would a doctor even consent to such a procedure?  In my life experience I have never even heard of such a thing.  Premature births are always accidents, not something the woman chose to do, in my experience.  But I imagine in O’Connor’s mind the fact no woman has done it (as far as I know) might be irrelevant; only the possibility it could be done, thus changing the moral landscape for her, mattered.

And not for nothing, but the other thing O’Connor probably likes about the viability standard is that eventually it will pretty much swallow the right to an abortion whole.  One doesn’t have to be a fan of Lois McMaster Bujold to recognize that someday science will create things like artificial wombs.  In her sci-fi universe she imagines a planet where abortion is banned, but no woman is required to carry a child to term because of artificial womb technology.  She even imagined women who had been raped in war sending their fetuses back the invaders’ planet and telling them it was their problem.  So O’Connor might very well picture a day when a Supreme Court could write, consistent with her opinion in Casey, that since a fetus can survive outside its mother’s womb from even conception in an artificial womb, abortion is banned entirely, except for health reasons.

But if I can be criticized for focusing too much on the fetus, it is because it is the one who is voiceless here.  The reasonable fear in the abortion debate is the fetus is literally voiceless.  They can’t defend themselves, they cannot vote, they cannot even cry out in pain so that the woman could hear it.

And indeed in our linguistic attempt to dehumanize the “fetus” that is precisely what abortion advocates are trying to do—to forget that the fetus is human and indeed might have feelings.  They are trying to make you forget about, well... this:

The scientific reality is that a fetus is alive, conscious and even sentient before birth.  Indeed studies have shown, for instance, that if you play classical music to a baby in the womb that the child will be, on average, better at math later in life.  How is that possible if the fetus is not fully sentient before birth?

And while I have never had a child of my own, through my larger family I have seen babies just barely born.  They are not blank slates.  You see already in them personality traits that they carry all the way into adulthood.  The idea that a fetus is a giant nothing until it emerges from the womb has to be one of the least scientific assertions in human history, going against both scientific data and ordinary human experience.  It would be almost as ridiculous as insisting that gravity pulls upward.

What I think is responsible for a great deal of this moral confusion, however, is the reality that there is a deep disconnect between the legal approach to abortion and what I believe is the common philosophy on the matter.  The reasoning in Roe—as opposed to its outcome—is deeply out of step with American culture and morality.  Simply put, a fetus gestating in a woman’s body is always called a baby... until someone wants to kill it.  Roe v. Wade’s decision that a fetus is not a person and cannot be made a person is in fact deeply out of sync with how ordinary people see the issue.

This also contradicts other areas of the law.  For instance, just about every state in the union has a law against animal cruelty.  And indeed most of them ban bestiality.  What person is being harmed by such cruelty?  The answer is obviously none.  And yet there is no serious argument that because a dog is not a person you have a constitutional right to do with it as you please to it, but that is precisely the argument made with the fetus.  There is even a movement to confer personhood status on animals.  The irony is that often the very people who join PETA and so on, devoted to ending animal cruelty, don’t seem overly concerned with cruelty toward human fetuses.

Of course the Supreme Court has an easy way around this: conditional personhood.  That is the courts can count a fetus as a person for one purpose and deny the fetus’ personhood for another.  This is already done, for instance, with regard to corporations.  They are “persons” in the sense that they can sue and be sued under their legal names, form contracts and even exercise freedom of expression.  But the New York Times Company cannot cast a ballot in the next election; the people who associate together to create the New York Times have to vote as individuals.  The same could easily be done for fetuses, calling them persons when a person wishes to unlawfully abort them (either without the consent of the mother or otherwise unlawfully), but say they are just “fetuses” when the mother wishes to lawfully abort them.  If Castro gets the death penalty, and the Supreme Court upholds it, that approach is extremely likely to be the one adopted.

But that is not consistent with the science or any kind of logical morality.  And it is worth taking a moment to imagine what I think is the most logical and moral approach for abortion.

Let’s start with something basic.  Faith and morality cannot determine the facts, but they can determine how we respond to the facts when it comes to the law.  For instance, a few years ago a woman in Nigeria got pregnant several months after her husband died.  The people of her village said she was obviously an adulterer (in the sense that it was sex outside of the context of marriage) and sentenced her to be stoned to death.  You might remember from the story that she claimed to have been raped.  She later admitted it was a lie, told because understandably she did not want to be stoned to death by the local barbarians.  You might also remember that the Nigerian Supreme Court then set her free.  What you might not know is that their reasoning was downright bizarre.

If the Nigerian Supreme Court had just said, “we are setting her free because only savages think that women should be stoned to death for adultery” that would have been ideal.  But instead the reasoning went like this.  She was being stoned to death under Islamic law.  But according to the same Islamic law, a man’s seed can live inside a woman up to seven months after death and cause pregnancy.  So since she was within that window and since there is in their country an irrebuttable presumption that a child conceived when a woman is with her husband or seven months later, she did not commit adultery.  It was as a matter of law, her husband’s baby.  Which if you are minimally versed in reproductive science is just daft.

And while I am glad to see that the woman won’t be stoned to death, there will be unintended consequences.  When it comes to rough justice, there is always unintended consequences.  Imagine if, for instance, instead of being dead her husband had divorced her six months prior to conception.  So that gives the husband an unjust claim over the child, and denies to the real father a just claim.  Whatever argument there is for saying that while two people are married any children produced is presumptively their children, it doesn’t apply seven months after the relationship has ended.

So in an American courtroom we should never defer to the unscientific dictates of any faith.  So for instance you take the Catholic objection to birth control—meaning birth control that doesn’t involve abortion.  According to the priests I have spoken to, the idea is simply this.  The reproductive organs of our bodies is where big “C” Creation occurs.  In other words, when conception occurs it is not just a biological process of DNA mixing, but an act of God creating a fetus just as He did in the Garden of Eden.  And so it is considered wrong to interfere artificially with that act of creation or the zone where it occurs.

And there are exceptions to that.  For instance, if a woman has ovarian cancer, there is nothing wrong with a doctor going in to stop that.  And likewise if a woman has a medical need for birth control medication beyond the desire to prevent pregnancy that’s kosher, too.  Which naturally leads a lot of Catholic women to decide that they suddenly need birth control for unrelated health problems when they have a steady boyfriend.  This even led to this somewhat absurd discussion with a member of my extended family where she admitted she was having pre-marital sex with her boyfriend:

Me:      Well, you’re using protection, right?

Her:     Doesn’t the Catholic Church teach us not to use contraception?

Me:      Yeah, and the Catholic Church also teaches you not to have sex outside of marriage.  If you are going to break one rule, you might as well break the other.

Oy vey!

That is also why the Catholic Church does allow for one kind of birth control (besides not having sex): the so-called rhythm method.  And having a Catholic wife (I am a Protestant) and a Catholic wedding, I got the Catholic lecture on how that worked.  The idea is the couple figures out when ovulation is and then avoids sex in those days.  And contrary to how it was done in the past, they use complicated measurements of body temperature combined with calendars.  Heck, at the time they were pitching a program for the Palm Pilot (remember those?) and today you can find various programs for it on the iPhone.  So you can say “there’s an app for that.”

By comparison the Catholic Church thinks that abortion is uniquely sinful because they believe “life begins at conception.”  In other words, they consider abortion to be the ending of a human life with a human soul.  (And it is also artificial interference with our reproductive systems, making it extra wrong in their minds.)

Now I don’t want to be seen as picking on Catholics.  Indeed on that last point Catholics agree with many mainstream Christians.  They may even be right. But again, I do not believe the facts should be determined by faith.  You let science determine the facts and faith can determine the morality that you apply to said facts.

Our common morality is that once a fetus is a person, it should be entitled to the rights of a person.  The question is when is a fetus a person, and that has to be guided both by science and morality.

Science fiction can provide some moral clarity on the issue.  That is one of the compelling things about science fiction at its best: it imagines how moral principles might apply to radically new circumstances.  So consider for instance, this exchange in my novel, Archangel (which you can read about, here).  It features an intelligent, sentient alien as the main character, who had been raised among humans.  At one point he was speaking to an FBI agent about how the criminal law might apply to him:

“And here’s another question. Suppose someone crept in here last night and shot you, in cold blood. Is that murder?”  [the FBI agent asked.]

“Sure.” [the alien replied.]

“No, probably not,” she said, “the laws on murder cover only humans. You shoot a dog or a chimp, it isn’t murder. At worst, it is cruelty to animals.”

(She then went on to suggest that the law needed to be changed in that respect.)

I am of the opinion that somewhere in the universe there is other intelligent life.  I don’t think we have met them or anything like that, but with the billions of stars out there, the chances that we are the only ones is about slim and none in my educated estimation.  And should we ever meet them, probably the first thing we will work out is whether to amend our respective murder laws to prohibit us from killing each other.

I think the correct answer (besides waiting until we actually meet aliens) is to treat it like murder.  This doesn’t mean that if the aliens turn out to be more like the aliens in Independence Day than E.T. that this would stop us from defending ourselves.  It is ordinarily murder to kill a human, but we have no trouble using deadly force to defend ourselves, whether it is from one lone maniac (Predator) to an entire nation bent on conquest (War of the Worlds).

Certainly that approach was adopted in Alien Nation.  Now I have not made a study of all the lore of that fictional universe (I barely watched even one episode of the TV series, for instance), but the basic idea was that aliens were marooned on earth and ended up mixing with our culture, particularly in California.  It was a metaphor about human immigration, with occasional sci-fi stuff thrown in as we followed the story of two cops—one human, one alien—trying to solve a mystery.  And in that movie, murder of one of the aliens was treated just like the murder of a human.  And I think most people would intuit that this was exactly right.

Consider other implications from speculative fiction.  I don’t remember if they said it outright in Alien Nation, but they certainly suggested that there was sex going on between humans and the aliens.  Indeed sex between aliens and humans is a common theme found in movies/television shows like the Star Trek (and its many spin offs) and even the Mass Effect video games, where amusingly the creators were much more comfortable with interspecies mating than same-sex relationships.  And yet isn’t that bestiality?  It’s a human having sex with something that isn’t human.  And yet most people would not apply that term to the conduct.

Likewise people are fond of saying that the question of abortion is about “when life begins” or “is a fetus alive.”  But the question is a misnomer.  Of course a fetus is alive.  So is that stuff growing on the bottom of a rock.  So is the grass you mercilessly maim once every week or so with your lawn mower.  When people ask that question, what they are really asking is, “when does life that we would treat as equivalent to a fully born person’s begin?”

The reason why I veered into sci-fi is because how you look at murder and sex between humans and aliens probably says something about how you answer that question: “when does life that we would treat as equivalent to a fully born person’s begin?”  If you say that it should be considered murder to kill a Vulcan in cold blood, but it is okay to kill a fetus five minutes before it would have been born naturally, I will wonder if you are thinking very deeply.

Why would it be wrong to kill a Vulcan in the Star Trek universe, after all?  Well, I think the answer is because it is a sentient being.  That is our moral intuition on the matter.

By comparison, if we were confronted with creatures like those in Aliens, I think most people wouldn’t even call it murder to kill one of those, for two reasons.  First, because frak them.  And second, and more seriously, because they seem little different from animals.  In other words, they are not sentient.

So for me what is key is when the fetus reaches the “sentience threshold.”  That choice of language is deliberate because I am not talking about when an individual fetus becomes sentient.  I do not want a regime where less intelligent people—born and unborn—are treated was somehow life unworthy of life.  What I am saying is that when the fetus crosses the threshold into the moment when most babies show signs of sentience, then we should treat it from then on as a full person, as entitled to life as any fully born baby.

Indeed, I am not the only one.  In England, where abortion was not legalized by judicial fiat but by statutory law this is considered a key question in the give and take their political process has over abortion.  The article I just linked to had some evidence suggesting even as early as at twelve weeks the fetus might be sentient, but I admit I just don’t know the science enough to be sure.  But whenever it is, that is when a fetus is morally equivalent to a fully born human being.

Which isn’t to say that killing it is automatically wrong.  I do believe that a woman should be allowed to get an abortion at any time if her life is at risk.  I think of it precisely the way I think of the right of self-defense.  Now you might reasonably object that unlike in most self-defense situations, the fetus is innocent.  But the guilt or innocence of the person threatening you is not determinative of whether you can kill to defend yourself.

For instance, take a person who is really, really insane.  Like a classic example is a man thinks he is squeezing oranges to make orange juice but in fact he is strangling someone.  The law says in that case that the person is innocent of murder because he literally doesn’t understand what he is doing (but such a person almost certainly will be in a looney bin for the rest of his life).

Now imagine that this person hallucinates that a person is shooting at him and he then picks up a gun and shoots in what he thinks is self-defense.  Again, if he kills a person this way it is not a crime because he is literally so far gone insane he doesn’t understand what he is doing.  So if he is captured, the law says he is not guilty of a crime.  He will, once again, just be sent to a looney bin.

But the fact he would not be held morally responsible for any deaths doesn’t mean you have no right to defend yourself against him.  If he is hallucinating a killer and in shooting at his hallucination he is shooting at you, an innocent bystander, you have the right to pull out your own gun and kill him.  In that case it’s not that the lunatic is a bad person or at all morally culpable.  It’s that he presents you with a situation where your life is in danger and the only way to get out of it safely is to kill him.

So it isn’t the babies’ fault when their very existence threatens the life of their mothers.  And just as in the mad gunman situation outlined above, maybe the most maximally moral thing to do is to risk your life.  That is, the innocent tries to take down the mad gunman with non-lethal force, and the mother carries the child to term at risk to her life.  It may be the moral thing to do, but I don’t think the law should require you to do it, or more precisely to punish you for failing to live up to that ideal.

So and of course before the sentience threshold I support other regulation.  Laws designed to make sure abortion is safe, for instance, seem utterly reasonable.  Likewise, I have no problem with laws requiring that consent be informed, or requiring parental consent, all before the sentience threshold is reached.

Now some pro-life types might reasonably object that a fetus has a soul before then.  I am not putting down that belief, but I don’t believe a subjective religious belief about the facts can dictate the law.  A more reasonable approach is to say, “we don’t know what is happening before then so we should err on the side of caution.”  But I don’t think we can restrict people’s freedom based on what worry might be happening.

And likewise, I also believe that abortion should be banned (outside of health of the mother exceptions) after viability.  Yes, there is much strange about the logic of that approach, but if we reach a day when a woman can safely deposit her fetus in an artificial womb and get on with her life, it seems gratuitous to kill the baby instead.  If it won’t cost her anything and she doesn’t have to raise it, what business is it of hers if the fetus is grown in a tank?

But here is the most important thing I believe: Roe v. Wade needs to be overturned.  As I have said before, this doesn’t mean that abortion will suddenly be illegal.  Instead it means that abortion will, like many other topics, be something we negotiate in the political sphere.  Why is that considered such a dreadful outcome to the left?

Update: Thanks to Vermontaigne for pointing out an embarrassing brain f-rt in the middle of discussing catholic doctrine where I accidentally said Catholics think life begins at birth.  Fixed.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.