A Brief on Abortion Rights
Tibor R. Machan
It is risky to reenter this discussion. I have entered it often and been not just criticized but also denounced for my position. This is that up to the point the cerebral cortex develops, a fetus isn’t actually but only potentially a human being. It may be useful to restate at least the outline of the case for this, one that seems most reasonable. That is, after all, the question in need of an answer–what is the most reasonable belief about this? If a human being is killed by abortion, then it may be prohibited other than in very special circumstances (e.g., self-defense, as when the pregnancy seriously threatens the life of the woman). But if what is killed isn’t yet a human being but only a potential one–just as a caterpillar isn’t yet a butterfly, only a potential one–the killing it isn’t homicide and may not be prohibited.
Basically if a woman has the right to seek an abortion, it would mean the fetus to be aborted isn’t yet a human being. If not, then at any point of its development the fetus is a human being. So the basic dispute is about when a human being comes into existence–at conception, sometime later, at some midpoint, or perhaps even at birth. It is all about when a human being emerges during pregnancy.
What is a human being? An animal with the capacity to reason, to form ideas and guide its conduct in large measure with the use of those ideas. The capacity may not even be exercised just yet but so long as it exists–so long as the entity could use its reason, could form ideas by which to guide its actions–a human being starts to exist. That is what is meant by humans being rational animals. That is why brain death is taken to spell the demise of a human being. That, at least, is the most reasonable stance to take on the issue.
Does a zygote or embryo possess the capacity to reason, to form ideas and guide its conduct accordingly? No. But why? Because a zygote or embryo lacks a cerebral cortex, the seat (in the brain or in the organism) of the faculty of reasoning. Prior to the emergence of the cerebral cortex only the potential of becoming a rational animal exists; no actual reasoning can take place, not even a little bit of it that would be possible to a nearly born infant. (So partial birth abortions would amount to homicide and could be murder!)
All this isn’t, of course, geometry. So there are hazy borders and divisions. Some zygotes become fetuses earlier than others; some fetuses become human beings earlier than others. Not very differently from how some children become adults earlier than others and how some adolescents become adults earlier than others. And these cases can be just as consequential–a adult may be convicted of a crime very differently from how a child or adolescent is.
There is a period before the human being emerges when the killing of the fetus couldn’t amount to homicide, let alone murder. Yes, there is a human zygote or embryo present but killing it isn’t killing a human being, a human infant. So it is reasonable that early abortions do not amount to infanticide, which is homicide and could be murder. It would, then, be an injustice to convict someone of homicide or murder for killing a human zygote or embryo. (There might be something morally amiss about such killing but it wouldn’t be homicide or murder.) No one deserves such a conviction.
The contrary position is often based on the idea of ensoulment, which arises from a theological or religious framework and which doesn’t belong in a secular legal system, any more than would most other theological or religious ideas, e.g., mortal sin or eventual resurrection, belong. So while in terms of certain theological or religious views it may be a sin, even a mortal sin, to have an abortion, it wouldn’t be unlawful within a legal order that includes the separation of church and state. And when some person is killed by another, it can be murder even if in terms of a certain theological point of view a person doesn’t really die at all since the soul survives and the body will be resurrected. But for a secular legal system all this is irrelevant.
The only important secular case for taking the view that abortion is homicide and could be murder is one that holds that the potential to become a human being already makes it a human being–the caterpillar is already a butterfly, as it were, or the infant is already an adult. But this is not reasonable and most advanced legal systems reject the idea. Still, that isn’t decisive. However, what is decisive is that although an egg is a potential chicken, it isn’t a chicken yet.
This position isn’t one that amounts to something as well founded as the principle of metaphysics that A is A. Or even as certain as some well established truth in physics or chemistry. Hardly anything is, yet once something is true beyond a reasonable doubt, it is enough to base our actions on it.
So it seems to me that the view sketched above is the best basis for resolving the debate about the right to abortion. Might someone who holds it have a reasonable change of mind upon further inquiry and understanding? Yes. But that is true of nearly every conviction a reasonable person holds.