Regarding the ethics of abortion it is important to remember where the greater burden of proof lies. The burden of proof lies heavier on whoever promotes abortion choice, that is, the free choice to kill morally and legally innocent human beings in utero.
It is normal to western civilization to assume as an ethical basic that living human beings should be treated with some measure of respect and should not be killed without clear and compelling justifiation, such as (1) capital crime trials (2) self-defense trials, and (3) deliberated declarations of war. In those cases, we recognize that deadly force should not be used lightly, and we have several checks and balances in place to make sure that no one was killed for trivial reasons or without justifying evidence. We as a society would not consider it ethical to enter a war when there’s no comparable death-toll at issue; such as crimes against Kurds in Iraq, or against Pearl Harbor and foreseen death tolls in WWII, etc. Nor would we convict a person of a capital crime without a jury trial.
As individuals, neither would we kill strangers just for being in our way, or friends who annoy us, or any other human being for such trivial reasons as their being “inconvenient.” It is morally abominable to kill human beings, for example, because they are female, or because they are hispanic, or because they are mentally handicapped. Yet these justifications (“excuses”?) are commonly used to justify abortion.
Abortion choice, therefore, encroaches on this ethical basic. The justifying tactic commonly used by most every abortion choice advocate is to divide “human being” from “personhood” so that it is not merely “human beings” but only “human persons” who have a right to life. In the past we’ve seen such divisions, like the 3/5ths comprise treating slaves as only partial persons. Fortunately, we’ve also seen corrections to those encroachments on slaves in the anti-bellum era, or black people in the Jim Crow era, or Women in the pre-suffrage era. We eventually concluded that that division of “persons” from “human” was an illicit division. No such reversal has yet taken place with Roe v. Wade however. Early stage human beings are still treated as non-persons, thus lacking (in the eyes of the law) most every civil or human right.
But we should not forget that the issue is over more than unfair taxation, or zoning laws, or other civil rights. Those are rights of citizenship; they don’t clearly apply to non-citizens. Those rights are not as basic as human rights. With abortion, we are talking about human rights since the child’s life resides (potentially) in the sphere of “life, liberty, and the pursuit of happiness.” These are rights that non-citizens have just as well as citizens, merely by right of being members of the human race. Abortion therefore divides “person” from “human” on the basis of developmental stage, and either has to deny the fetal child’s status as “human” (less common) or as “person” (more common) or both.
This division over developmental stage, however, is irrelevant to human rights (to life) at any other stage of development. So long as the fetal child is human it satisfies the predicate “human” in the phrase “human rights.” In other words, human rights are predicated on humanity. Parents can’t legally kill their teenagers (no matter how much they are tempted). We cannot legally (or ethically) discard our elderly parents, actively killing them so our inheritance isn’t swallowed up with medical costs. Human beings don’t lose legal person status by entering a different developmental stage–say, neo-natal to natal; or adolescent to adult, or adult to geriatric, etc. We do not lose legal personhood till death
When then do we gain our status as legal persons? This question, supposedly, has been answered in 1973 in Roe v. Wade where the fetal human being was legally defined as “potential human” and denied any legal personhood. Only upon birth does a human fetus become a legal person. This outcome is unfortunate since the phrase “potential human” is factually wrong, and there is no substantial change in the child in the time it takes to exit the womb. That legal decision arbitrates a deadly different policy for one group of humans that it withholds for all other groups. This is literal malicious discrimination to the point of death on the basis of size, location, environment, and level of development (Koukle’s “SLED argument”).
The boy or girl, in utero, is already a human in the fullest scientific sense. It is not merely a fetus, it is a fetal human being. It is not a blob of tissue since it’s already begun cellular individuation as a functioning organism from day one (i.e., it’s not a tumor). To be sure, it still lacks the public and active features of human persons such as consciousness, moral knowledge, desire, etc. (though it may be able to feel pain starting somewhere around 8-20 weeks gestation, and might be able to dream by the 7th month). Yet, the pro-choice advocate needs to prove that these are sufficient to undermine all human rights to life. Maybe they are right, maybe not. But before anyone pulls the trigger we cannot ethically rest assured that that intentional act of killing is excused unless and until the fetal human being has been shown, beyond a reasonable doubt, to lack all rights to life
The fetal human being is clearly human and lives within the safety of our normal ethical assumption that human beings have a right to life, that is, it lives safely there unless the abortion choice advocate can show beyond a reasonable doubt that some members of the human race lack all rights to life.
But why say the proof needs to be “beyond a reasonable doubt”? In one sense, this evidential standard is presumed within criminal law whenever capital punishment is at stake. Before a person can be sentenced to capital punishment there is a trial process, sometimes 2 or more trials, including different stages of trial and sentencing, a jury, a judge, attorneys, and waiting periods for appeal and retrial, and so on. The idea is that no death penalty should be rendered “willy nilly” without overwhelming evidence to show beyond a reasonable doubt that the individual in question should die. Abortion administers a de facto death penalty and so it makes sense to retain some measure of fortification against wrongful death.
In the past, humanity has erred grievously against our fellow humans, through slavery, sexism, and war crimes. We’d be foolish (and quite likely malicious) to assume we are exempt from comparable errors today (see Christopher R. Browning, Ordinary Men, 1998). The high burden of proof is an ethical and legal safeguard to protect us from committing similar “crimes against humanity” today and in the future. In short, the high measure of evidence is proportionate to the high value at issue. We would rather error in favor of life than against it. Lady Justice weighs life heavier than most everything else; to tip her scales in favor of death requires overwhelming evidence to where only unreasonable doubts remain.
Second, this high value on life can also be seen in the permanence of death. Life can’t be returned once it’s been taken. Death is permanent, barring divine intervention.
Third, individuals are irreplaceable. There is no assembly line where we can purchase identical models of humans if we “break” the first one. Human life defies mechanistic reductive accounts in that we are not just machines to fix and replace. Individuals are irreplaceable. Anyone who’s owned a cat or dog knows that even pets are irreplaceable; how much more so are human beings irreplaceable. Even if we could clone people, there is still an incidence of mutation, epigenetics, and environment where the human being is still formed in ways we cannot yet control and with some measure of spontaneity. Anyone who has ever raised twins knows that not even identical genetics can make identical individuals.
Fourth, human life is beyond purchase value. We cannot (ethically) purchase human beings, or trade human beings as merely commercial goods, buying a “title” to a person as if he or she were a car or a work horse. It’s dehumanizing to treat human subjects as objects like that. Putting a price tag on them, even if it’s a high number, is insulting to their innate dignity as human beings. To “own” a person like that is slavery.
Fifth, human life is a naturalistic anomaly. If a housewife manufactured distinct human life using only household items we would marvel at that miracle. If a scientist were to manufacture distinct human life using only chemicals in the lab, again we would marvel at that miracle. If two gorillas mated and produced a genuine homo sapiens, a distinct human life, again we would marvel at that miracle. When two human parents mate, and their only child is born from their union; many parents can attest, they marvel at that miracle. That biologically continuous individual is the same, but changing, entity from conception onwards, yet at every other stage after birth we readily accept that human beings have a right to life. While some people wholly reject the notion of “sanctity of life” in both its secular and religious senses (i.e., Peter Singer) society has graduated to civility in large part because of that ethic. Our legal system presumes it. Our species survives by it. And we widely believe it as evidenced by every time we opt against a baby sandwich and prefer a hamburger or tuna melt.
It seems then that the clear and compelling prima facia ethical stance is that fetal human beings should not be killed unless some sort of overwhelming evidence can be offered sufficient to disqualify those human beings from any right to life. Women may have for great privilege and authority over their bodies and their pregnancy, motherhood is deeply personal but until that child is shown to lack all rights to life then it’s not clear how one civilians “rights” could include the privilege to kill another innocent non-threatening human being. It’s not like the child is acting unnaturally or unethically as an enemy invader. In utero the child is right where it’s supposed to be at that stage of development. It’s not like the child has committed some capital crime or waged war against our nation. Only in rare cases has the child’s presence constituted an attack and mortal threat to the mother, but even if abortion were legal in those cases–that would still accord with pre-abortion-era policy. The burden of proof sits heavy on the shoulders of abortion rights advocates and the typical “my body, my right” line of argument is a flimsy support. Her body can’t also be male yet the child inside her can be. Her body would double in limbs and appendages if the child were her body. Her body even attacks the child as a foreign object and would routinely kill it if not for some remarkable internal adaptations protecting the child from her immune system.
In this way, the burden of proof lies on whoever says we can kill a living human being. The abortion choice advocate, if he or she is going to be ethically consistent or rationally justified in his or her view on abortion, needs to prove beyond a reasonable doubt that the following entity has no right to live despite being a (1) genetically distinct (2) male or female (3) living (4) human (5) organism (6) a homo sapiens (7) biologically distinct from it’s mother [i.e., not her body, since her body doesn’t have 4 arms, 2 heads, 4 legs, and so on], (8) without moral or legal guilt, (9) endowed with the latent capacity for everything human beings have, (10) a child-in-utero, (11) having biological continuity from embryonic to geriatric stages, (12) a member of the human race, (13) with a “future like ours,” (14) and thus a literal human being.
Prochoicers, it seems, are preoccupied with “personhood” but in so doing they risk failing to account for how human rights are predicated on humanity, with only a secondary or practical concern for “personhood” (as there are legal and prosecutorial implications with one’s legal identity before the law–i.e., citizenship, voting rights, miranda rights, etc.). Yet the humanity of the fetal child is beyond serious question.
Our constitution and declaration of independence recognize that “we hold these truths to be self evident that all men are CREATED equal and endowed by their creator with certain inalienable rights including the right to life, liberty, and the pursuit of happiness” (see also, the 14th Amendment). A great deal turns on the word “men,” as that has been variously constricted to exclude certain members of society, such as slaves and women. But that very constriction is part of the problem; it dehumanizes other members of the human race, alienating them from their human rights. Our court and legal history may have erred grievously against slaves (the 3/5ths compromise, etc.) and women (pre-suffrage laws, etc.), but we’ve been fortunate to see those errors corrected. Current legal precedent from Roe v. Wade (1973) denies a whole class of human beings even a right to life, and exempts parents from protecting for their own children so long at the child is still in utero. This is not “equal treatment” by any stretch of the term since one segment of society can be legally killed without justification and others cannot.
If one wants to suggest that “men” does not mean humanity but means only “some” human beings, then I contend that’s precisely the kind of wicked discrimination that served in the past to marginalize women and black people, or prisoners and the feeble, or minors and the elderly. But when “men” means “humanity,” those basic rights–equality, life, liberty, pursuit of happiness–are predicated from creation onward. At the time our founding fathers were penning the Preamble to the Declaration of Independence they didn’t know that distinct human life begins at conception; and they had no clue about genetics or DNA. We now know that each new human being is created at conception. Why then should I treat a whole class of human beings as so undeserving of life that we can kill them at will, even for such trivial (but legal) reasons as convenience or sexism, or racism? A friend of mine, before converting to the pro-life position, confessed that she had an abortion just because she didn’t want to gain weight.
It seems like the ethics of this moral landscape clearly favor life. Pro-choicers have overall failed to show that certain living human beings, namely, children-in-utero, are neatly and completely divisible from all human rights, yet shy of that proof the pro-choice position collapses into wickedness.