The Argument

Recently, I answered a challenge from an acquaintance to provide a non-religious argument that provides a rationale for limiting abortion.  Always up for a challenge and hyper-competitive, I got my legal mind rolling.

Back in college, I was at one point a legal clerk, a legal assistant (pseudo paralegal), and eventually the accounts receivables manager for a small law firm in town.  The benefit of such a firm was that my role in the firm was not just limited to filing papers, sending bills, collecting on delinquent customers, and drafting letters.  I actually did legal research and helped formulate pleadings.  So I am not a stranger to the ballet that is jurisprudence.

In light of the Presidential debate on social issues tomorrow night, let’s delve into this.

If someone were to stab a woman in the belly outside of an abortion clinic (before she went inside to have an abortion) and she survived but the baby didn’t, he would be charged and convicted of murder in 38 states. So is it murder or not? Civil law acknowledges that life within the womb, when terminated (by someone other than the mother), is murder. Why is it different when it’s the mother? The life within the womb is forced to take a back seat in that case simply because it is dependent on the mother for survival. Is this not a legal paradox that conveys a superceding right to the mother over anyone else?

The counter to that statement was that the mother had not gone through the abortion yet and could have backed out.  There is merit to that statement, but let’s expand the legal paradox a bit more.

The child must have some sort of legal protection which merits the prosecution and ultimately the conviction due to an attack from outside regardless of the mother’s intent. Opponents of fetal homicide laws, which I linked to above, argue that those same laws could endanger abortion as a right.  The end result is the same in both situations where the child is concerned, yes? Pro-abortionists argue that the laws are a slippery slope and could lead to severe restrictions or prohibition of abortion.

Let’s embrace the slippery slope.  If it’s not murder when the mother is the decider (I know it’s not a word, but it works in this case) then what does the gestational state matter?

Let’s say at one year the mother decides that they no longer want the responsibility of motherhood. They drop their kid off a cliff and go back to being childless (same end result). Why do we equate that last action with murder and abortion, which is effectively the same thing, as an healthcare issue?  This is not a question of morality or religion at all anymore when you view it in this light.  When it is a moral or religious issue, opponents of abortion can be isolated and minimized due to their “dogmatic theology.”  What we have here is an issue of equality before the law.  Is the child, whether it is born yet or not, have equal standing before the law as the mother?

My acquaintance then made the following statement: “Depending on the method used abortion is an operation or administration of drugs to end a pregnancy. Whether or not a separate entity is using her to live her body is still her own. So if a woman does something to her own body which results in what could be considered an abortion then she has every right to do so because it is her own body regardless of another being requiring it to maintain a certain state to survive. This avoids the drop kicked baby cliff problem.  On a more emotional level I feel mid to late term abortions are abhorrent. I think there is a responsibility of the mother to protect the life of the child after a certain point. Perhaps after it can survive outside the womb or maybe once a heart beat/brain is developed… I’m not a doctor and don’t understand such things well enough to make a certain decision one way or another on that.”

Side note: according to a quick internet search, the baby’s heart rate (or “pole”) can be detected as early as 5 to 6 weeks after conception. You’d find many women hard pressed to even know they were pregnant 5 or 6 weeks in beyond a suspicion.

I believe that by splitting hairs between chemical extermination and surgical extermination is the same as saying that putting arsenic in someone’s food is somehow less of a moral wrong than taking their head off with an axe. It’s less “bloody,” but the end result is the same.

They countered “I do understand why you might think I’m “splitting hairs.”  I don’t this “bloody” idea has anything to do with my argument. A person has rights to their own body. Why does a pregnancy suddenly remove these rights from a woman? Do the rights of the unborn child take precedence?”

They do not take precedence, but they must be treated equally if you want to have a fair, just, and legally sound society.

The paradox that you have legally with rights of the mother to her body and the rights of the child are that you have an inequality under the law with the current status quo.  So the paradox in this issue is that your rights only go so far until they limit the rights of someone else. If the fetus has legal protection in the case of a murder, they have been acknowledged as having the right to life, so the mother’s right to her body only can go so far as to not intervene on the fetus’ right to life if we acknowledge equality under the law.

So what is equality before the law?

Webster’s New World Law Dictionary defines the concept.

The doctrine that all persons, regardless of wealth, social status, or the political power wielded by them, are to be treated the same before the law.

So, the crux of the issue is personhood.  When is the fetus a person entitled to legal protection?

Biologically, life is defined from the cellular level up.  Between one and two weeks from conception, the blastocyst will adhere to the uterine wall and begin receiving oxygen and nutrients that allow it to grow and develop into an embryo.  However, at just three days post-conception, the cellular organization of the blastocyst is classified as an human organism by science (How Should We Define Life and Personhood?).

So, how can we reduce personhood to a definition that all accept?

When considering the criteria for personhood, we would do well to ponder if we should reduce personhood to a set of capacities or a biological marker. Should moral significance come from who we are or from the functional capabilities we express at a given moment of our existence (How Should We Define Life and Personhood?)?

Can we remove religion from the abortion debate and maintain an ethical system grounded in the value of life?

Before I formed you in the womb I knew you,
    before you were born I set you apart.

Jeremiah 1:5

Indeed, the very hairs of your head are all numbered.

Luke 12:7

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