The abortion issue in our time has been likened to the slavery issue in the 1800s: emotions run high, and the citizenry is deeply divided over what is universally acknowledged to be more than a superficial issue. In fact, there is a more fundamental similarity: in both cases an important underlying issue is, What is a human being?
Many who supported the continuation of slavery did not favor the violation of human rights; they simply did not believe that the black man was quite human. And although some people would not prohibit abortions even if the fetus is a human being (for example, because the woman or society would benefit more from the abortion than would the fetus from being left to develop), most people would agree that if the fetus is a human being, then abortion is wrong (except perhaps if the mother's life is threatened). For if a living being is a human being, then it has a right to life and cannot rightfully be aborted or otherwise killed except in self-defense.
Where the disagreement enters, though, is precisely on the issue of whether, or at what stage, the fetus is a human being. Emotionalism on both sides of the abortion debate has tended to obscure this fundamental point of contention. So have appeals to religious teachings, tradition, opinion polls, women's independence versus men's domination, and so on.
All of these tactics are designed to make a point about abortion; they do very little to address the real disagreement over the tough question, When does a human being come into existence? But until the air is cleared of emotionalism, and solid arguments and the available facts are brought to bear on that question, it will be impossible to settle the debate over abortion legislation in a manner consistent with the American political tradition, to which individual rights for all human beings are central. So, where do reason and the facts lead us?
HUMAN AT CONCEPTION?
Those who oppose abortion altogether are agreed on the premise that existence as a human being begins with conception. Given the human right to life, abortion is thus murder and must be outlawed. (Some allow an exception if the woman's life is endangered by continuation of the pregnancy; others add pregnancy by rape or incest.)
Why do they claim a link between conception and human existence? Although some antiabortionists (or prolifers*) refer to religious teachings or make emotional pleas, there are others who make their case with logic and facts. The strongest argument offered by the rational antiabortionists is based on certain facts of biology pertaining to the nature of life and the nature of the fetus.
I myself was at one time such an advocate. Like some other rational antiabortionists, I rested a good part of the argument on the essay "Man's Rights" by Ayn Rand, who is, however, a staunch defender of the prochoice* position on abortion. This antiabortion argument, quoting from and expanding on Rand, goes like this:
As Ayn Rand argues, "Life is a process of self-sustaining and self-generated action." Such a process begins when an egg and sperm cell unite. Thus, a new living human being comes into existence at conception. All human beings have the right to life, so even a newly fertilized zygote (being a living human being) has the right to life. And "the right to life," explains Rand, "means the right to engage in self-sustaining and self-generated action." For a zygote, embryo, or fetus, this means the right to continue receiving sustenance and shelter from its mother. Therefore, abortion is murder.
This is a powerful argument—it gets to the heart of the matter; it is consistent; and it appeals to relevant facts. It can withstand a number of stiff objections.
The first prochoice challenge is to deny that the fetus even qualifies as a being, a separate and distinct organism, before it is born. It may be separable or viable at some point, they concede, but until then it is simply a parasite or a part of the woman's body.
In reply, antiabortionists point out that the fetus carries out digestion, excretion, and a number of other functions and, from at least 28 weeks after conception, perceives via its sense organs and nervous system. The fetus thus has centers of organismic activity separate and distinct from those of the woman harboring it. Reliance upon the uterus for shelter and the placenta for nourishment no more makes the fetus a nonindividual or parasite than does the dependence of an infant (or an adult, for that matter) upon someone else's house for shelter and someone else's food for nourishment make it a nonentity.
The second prochoice challenge to the rational antiabortionists' case is to deny that the fetus qualifies as a living being engaged in self-sustaining, self-generated action. It is clearly dependent.
Those on the antiabortion side point out, however, that by this standard a child is not "alive" either, since he or she is unable to provide for himself or herself. They further correctly observe that this line of argument betrays a gross misunderstanding of Rand's concept of life.
Although Rand defines "life" as "a process of self-sustaining and self-generated action," "self-sustaining action" does not mean providing one's own sustenance through one's own efforts. It means something much more fundamental biologically: an action directed, either by choice or automatically, toward the organism's own continued action—regardless of the source of the materials necessary to sustain that action.
Similarly, "self-generated action" means an action initiated, either by choice or automatically, by the organism itself. Even the simple energy conversions of a plant qualify as life, since they are initiated by the plant and directed toward the plant's own continued conversion of energy. Clearly, the fetus—which is the center of increasingly complex processes of metabolism, locomotion, and consciousness, separate and distinct from those of the woman—is an actual, living being.
The prochoice people have but one move left: to deny that the fetus is a human living being; that is, to deny the claim that there is no essential difference in a fetus's nature at any two points in its development from conception onward. If correct, this denial would be entirely adequate to refute the antiabortion position.
There is no unanimity among prochoice people, though, as to when, and how, the fetus does in fact become human. Unless it can be established at what point in its growth, and because of what developments, a fetus—or baby or child—changes in its essential nature from not-yet-human to human, any stance in favor of leaving women free to choose an abortion should be regarded with suspicion. The question is: Can this gap in the prochoice position be filled?
A defensible argument for the prochoice position requires, first, an adequate conception of what it is to be human and, second, facts about fetal development.
Aristotle defined man, or human being, as the rational animal. The point was not that human beings always behave sensibly or logically. What he meant was that humans are the only creatures with a rational faculty that makes possible and explains all the other activities and accomplishments that distinguish humans from the lower animals.
Even within the vastly greater context of all of mankind's knowledge to date, Aristotle's definition still seems to have captured what it is to be human. As Ayn Rand, a 20th-century Aristotelian, explains:
One could observe that man is the only animal who speaks English, wears wristwatches, flies airplanes, manufactures lipstick, studies geometry, reads newspapers, writes poems, darns socks, etc. None of these are essential characteristics: none of them explains the others; none of them applies to all men; omit any or all of them, assume a man who has never done any of these things, and he will still be a man. But observe that all of these activities (and innumerable others) require a conceptual grasp of reality, that an animal would not be able to understand them, that they are the expressions and consequences of man's rational faculty, that an organism without that faculty would not be a man—and you will know why man's rational faculty is his essential distinguishing and defining characteristic. (This passage is from Rand's Introduction to Objectivist Epistemology.)
If possessing this rational faculty is what sets humans apart from other creatures, then the point at which that faculty comes into play is the point of development at which a human being may be truly said to have made its appearance.
This rational faculty, however, involves much more than the complex levels of abstraction generally associated with "rationality." As Aristotle observed, the conclusions derived from reasoning are sound only when they rest on the evidence of the senses, only when tied to perceptual awareness of reality. So reason is not some abstract, freely floating ability separate and apart from perception but instead, to quote Rand, is "the faculty of perceiving, identifying, and integrating the evidence of the senses." In other words, the rational faculty that is a defining human characteristic is the ability to perceive and then conceptualize about reality.
It seems plausible to conclude that this faculty begins its functioning when the living being develops beyond the undifferentiated chaos of pure sensations and actually distinguishes objects of perception. But exactly when does perception begin? When is the brain sufficiently developed?
Much earlier than previously suspected, according to recent findings. Neurophysiologists have made EEG measurements of developing fetuses and prematurely born babies and discovered that the patterns of electrical brain activity prior to the 28th week of development are radically and fundamentally different from those occurring after the 28th week.
In The Conscious Brain, Steven Rose, a British neurophysiologist, observes that "before 28 weeks the patterns are very simple and lacking in any of the characteristic forms which go to make up the adult EEG pattern." Then, between the 28th and 32nd weeks, the theta, delta, and alpha waves of the adult make their appearance—at first only periodically, "occurring in brief, spasmodic bursts; but after 32 weeks the pattern of waves becomes more continuous, and characteristic differences begin to appear in the EEG pattern of the waking and sleeping infant."
American neuroscientist Dominick P. Purpura concurs with Rose. In a recent interview, Purpura defined "brain life" as "the capacity of the cerebral cortex, or the thinking portion of the brain, to begin to develop consciousness, self-awareness and other generally recognized cerebral functions as a consequence of the formation of nerve cell circuits." Brain life, said Purpura, begins between the 28th and 32nd weeks of pregnancy.
To summarize: the pre-28-week fetus—while indeed a living organism—cannot be regarded as human, since it does not yet possess a functioning rational faculty. It is a potential human being. It becomes an actual human being only when the faculty that makes it distinctively human begins operating—at about the 28th week of pregnancy.
It follows then that until at least the 28th week of pregnancy, the fetus has no human rights that might be violated by abortion. So there should be no legal impediment placed in the way of a woman who seeks to abort such a fetus.
From the 28th week onward, however, the fetus does have the right to life. Abortion past this point should be permitted only under two conditions: when the woman's life is threatened by the pregnancy (in which case, a fetus that survives the abortion must not be killed or allowed to die) or when the fetal brain is so defective that it will never function on the human level of awareness.
Otherwise, abortion after the 28th week is equivalent to murder and should be treated as such under the law. The same legal protection presently given to normal children should be extended to normal post-28-week fetuses. This includes full recognition and implementation of their rights to life, liberty, property—and support.
OTHER VIABILITY VIEWS
In contrast to the case I have presented above, the mainstream prochoice argument says that "heart-lung viability"—which happens around the third trimester, or last three months, of pregnancy—should be the dividing line between the woman's right to an abortion and the fetus's right to life. This is the view that antiabortion forces are trying to defeat through legislation or a constitutional amendment.
But as Dr. Purpura has pointed out, the concept of viability at 24 weeks only makes sense if the heart is the central organ of human life. In fact, he notes, it is the brain that should be so regarded. The essence of human life rests, not in having a heart and lungs that permit one to survive outside the woman's body, but in having a brain that functions on the perceptual level and is normal enough eventually to function on the conceptual level, as well. So the viability of a fetus—its ability to survive as a human being—should properly be placed at around the 28th week instead of the 24th week, as presently maintained by most of those arguing for the prochoice position.
This new definition of viability in terms of brain development is not vulnerable to a rather serious antiabortionist objection to the heart-lung criterion: making the right to life dependent upon technology. Ten years from now, physiological viability may be possible as early as three months, instead of six months, because of certain medical advances. So, they ask, how is it moral to deny a three-month fetus the right to life now, since its nature would be identical in the technologically advanced future? But by the neurological standard based on brain development and function, the three-month fetus would not qualify as human even if technology made possible physiological three-month viability.
Another competing prochoice argument is drawn from the common law. As expressed by Lord Coke in the 17th century, the common law held that "wilful murder" was the unlawful killing of "any reasonable creature in being and under the king's peace with malice fore-thought—either express…or implied." And it had a strikingly simple standard for establishing what was "a reasonable creature in being": one separated from the mother's body and sustained by an independent circulation. In other words, one was born, and that was that!
While some prochoice advocates maintain that we should stick with the common-law criterion, we now know more about the nature of the fetus. It makes sense to conclude that a normally developing fetus past the 28th week is also a "reasonable creature in being." It is viable, capable of being born from its mother's body; and while not yet separate, it is certainly separable. So to extend the concepts of murder and manslaughter to include unjustifiable termination of the post-28-week fetus is not a travesty of the common law but is instead a reasonable modification of it in the light of the best knowledge available to us now.
Another error avoided by the neurologically based argument is that made by an extremist minority in the prochoice camp who equate the functioning of the rational faculty with full-blown conceptual thought. While this group agrees with the definition of "man" as the rational animal, they would reject the claim that the rational faculty begins functioning in the womb with the onset of perceptual awareness (at about 28 weeks). Instead, they say that the rational faculty doesn't operate until the child is capable of reasoning and willing—that is, of conceptual thought and moral choices, of directing its own life independently. Thus, they say, infanticide—and even the killing of perfectly normal older children—while perhaps morally monstrous in some cases, should not be legally regarded as murder.
Despite the overwhelming emotional horror with which most people react to this position, it cannot be dismissed out of hand. There is a serious concern here with preserving the doctrine of human rights. It cannot be the correct definition of "rational" or "human" to claim that the fetus's rational faculty begins functioning in the womb, they say, for it makes it impossible to apply human rights consistently.
Why? Because if the parents are unwilling to support the child and can find no one else to do so, doesn't it violate the parents' rights if they are forced to support another human being—even their own child? Isn't this tantamount to involuntary servitude?
Clearly, the problem here is not just whether abortion is ever justifiable. The broader question is whether any child has a right to be supported by its parents—rather than killed, abandoned, or simply neglected—until it becomes an independent person capable of surviving by its own effort and initiative.
In fact, though, there is no conflict between parents' and children's rights. The right to child support—including during the last 12 weeks of fetal life—springs from the same basic source as the right to compensation for disablement when caused by someone else. A person who is responsible for causing the helpless state of another human being is appropriately responsible for that person's care until he is capable of caring for himself (unless another person is willing to assume the responsibility).
In the case of pregnancy and childbirth, a woman who refuses or fails to abort at some point prior to the 28th week has allowed the fetus to become no longer just an embryo, a potential human being, but an actual, helpless, human being. By continuing to nourish and shelter the fetus past the 28th week, the woman has caused it to become a helpless human being for which she ought to be responsible from that point onward. She had sufficient time to abort the fetus while it was still nonhuman, and once it does become human, the decision and the rights involved are no longer hers alone. (Again, we are assuming that the fetus is neurologically normal and that the woman's life is not threatened by continued pregnancy.) Thus, the same statutory protection currently accorded normal children ought to be extended to post-28-week fetuses. This includes full recognition and implementation of their rights to life, liberty, and property—and support until they are capable of independence.
The prochoice case I have defended may well leave some antiabortion supporters unmoved. But there is a significant group for whom it should be conclusive: those who espouse logic and facts in arguing that the fetus has a right to life from conception.
Rational antiabortionists make it clear that they are not out to impose on others their personal opinions or religious views about when human life begins. Instead, they want to make the law conform to facts—specifically, the facts of biology—rather than to someone's wish to obtain an abortion.
Given their commitment to facts, in particular to biological facts, the rational antiabortionists must seriously consider my argument, for it appeals to some recent and singularly relevant scientific findings. They must either deny that the neurological data are scientific or offer a different interpretation of them. Short of that, they are bound by their own ground rules to accept this argument and join the prochoice ranks.
Antiabortionists may be worried, however, that defining human beings in terms of anything other than the product of the union of a human egg cell with a human sperm cell would lead to horrible consequences. Wouldn't it open the door to all the terrors of Nazi Germany: genocide, mercy killing, extermination of misfits and other undesirables, on the grounds that they are "inferior," not human, and thus not worthy of the right to life?
But according to the neurological data and the understanding of human nature offered here, the only candidates for being considered nonhuman are: pre-28-week fetuses; babies born without a cerebral cortex or who would otherwise never be able to function conceptually; and individuals who, because of severe brain damage, will never again be able to function conceptually—the Karen Ann Quinlan types. In each of these cases, it is feasible to determine when the neurological standard applies medically and thus to apply the definition of "human being" consistently. There is nothing in the logic of the case that would allow these criteria to be extended to include the senile, "slow" children, Jews, infidels, or redheads over 6 feet, 4 inches in height!
So totalitarianism is by no means a consequence of the prochoice position. In fact, as Leslee J. Newman pointed out in Libertarian Review in December 1979:
The Nazis were anti-abortion, yet they were not "pro-life" in their feeling towards certain minority groups. Today in many countries where abortion is outlawed or severely restricted by the state, thousands of persons might be randomly imprisoned, tortured, or shot, as in many of the nations in Central and South America. Thus, it would appear that there is no correlation between the outlawing of abortion and a general respect for the human rights of a populace.
On the other hand, the antiabortion position does usher in horrendous consequences. Newman wrote in an article in September 1979:
If a Human Life Amendment made fetal life sacred, any abortion could thus be considered murder or manslaughter. Since 15 to 25 percent of all pregnancies naturally end in miscarriage, our already crowded courts would be required to hold hundreds of thousands of inquests to determine the cause of "death." Since in addition miscarriage is by its nature a private occurrence, we might even find the traditional presumption of innocence reversed: a high percentage of formerly pregnant women could become suspect as murderers and might be criminally charged if they could not prove otherwise. Women might even be arrested if it were feared that there was probable cause to believe that they might try to obtain an abortion. Suspicion of pregnancy might be used to justify forced examination. Pregnancy in some cases might result in incarceration or straitjacketing.
These are a few of the consequences of legislation outlawing abortion. Nor would they result only from a perverted misapplication of the law; they would be necessary for its enforcement. Nazi-like, fascistic control over the lives of women would be the outcome of such legislation.
The antiabortionists are not the only ones to run into serious trouble once they abandon their fundamental argument and argue instead in terms of consequences. The prochoice position fares no better. Claims often heard on the prochoice side may all be true, but without a fundamental argument to give them support, they fall to the criticisms of the antiabortionists.
Here are a few examples:
• "Abortion is a humane remedy for the problem of unwanted children being brought into the world." The antiabortion reply: These children may be unwanted by their parents, but there are many other couples who would love to have them.
• "Don't women have the sole right to control what happens to their bodies and thus have the right to seek an abortion?" Reply: True enough, a woman does have the sole right to control her body; but she has no right to control her child's body by choosing to terminate its life.
• "How can a man, who does not have to bear an unwanted child, dictate to a woman that she must do so?" Reply: President Lincoln didn't himself treat other human beings as though they were nonhuman, yet he validly argued for abolition of slavery against those who did treat them in this manner. The issue is not whether Lincoln could or couldn't have personally experienced slave ownership; the issue is human rights, which slavery violates. Ditto abortion.
• "For hundreds of years the law never recognized the fetus as a human being, worthy of legal protection. The abortion laws of the 19th and 20th centuries were passed, not to protect the fetus's right to life, but as public health laws, because the medical establishment was concerned that the abortion operation was too dangerous to the woman." Reply: What you say is true, but this doesn't mean that the failure to recognize the slave's right to liberty prior to abolition was justified. The law has been derelict in protecting certain rights for far too long, and it is high time that sensitive people demand that the wrong be righted, as did the abolitionists of the 1800s.
• "Many of us believe seriously and sincerely, as a matter of our moral or religious convictions, that human life begins not at conception but at birth, or at viability at the earliest. What right do you have to force your moral or religious views upon us?" Reply: The beginning of human life is not determinable by religion or morality but by observable biological fact. It is not a matter of competing beliefs but of scientific fact: Biologists agree that life begins at conception; the union of the egg and sperm cells result in a new organism. Killing such an organism is murder.
These quite plausible prochoice arguments can be demolished by antiabortion objections because they don't have any fundamentals behind them. What is it to be a human being? What is the evidence about when a human being comes into existence? These questions are sidestepped. Yet it is on this fundamental ground that the prochoice people must take their stand.
Much harm has resulted in the abortion debate from a rejection of reason and science. The religious community opposes abortion by appeal to the notion, which cannot be demonstrated, that the soul enters the fetus at conception. And many prochoice advocates favor abortion by appeal to their very strong feelings, say about women's control over their bodies. So advocates and opponents of abortion legislation end up on fundamentally the same side, wherein the available facts and the need to define key terms are ignored.
It is unlikely that what I have said here represents the last word on the abortion controversy. However, its principal argument, and the other considerations introduced along with it, should help to polarize the many-faceted debate by reducing it to two clear-cut factions: those who reject reason and reality and those who accept these as the best route to understanding and guiding our world and our conduct. These are, in fact, the only two fundamental positions on the abortion controversy. This polarization, more than anything else, may enable us to discuss the issue clearly enough to resolve it once and for all in a way acceptable to all reasonable men and women.
Roger Bissell is a professional musician and a self-taught philosopher. He is chairman of the Nashville Tax Alternatives Committee and has contributed to a number of publications, including the Reason Foundation's journal, Reason Papers, and the Individualist. An earlier version of this article appeared in the Tennessee Liberty Bell.
*Labeling is always a problem in a debate, and it has been so in the abortion controversy. I have settled on antiabortion and prochoice (rather than prolife and proabortion) because they seem to be more neutral, not prejudging the fundamental issues at hand or ascribing more to either side than is the case.