God's Reasons Reconsidered

A Response to Professor George

June 2002

Introduction

In "God's Reasons" my friend and former classmate, Robert George, argues that abortion is intrinsically evil and a violation of human rights, and that therefore any morally legitimate government must severely restrict the practice. Since only one VCBC reader has stepped forward to challenge Professor George, and chose to raise new points (about which more later) rather than to challenge his points directly, I feel compelled to try. I will first try to strengthen those of his arguments with which I agree. Then I will attempt reasonably to refute those points with which I disagree.

I must state that I am not trained in jurisprudence or political theory, as is Prof. George, nor am I as knowledgeable in theology. I therefore cannot argue as an attorney on this topic, but can only volunteer my thoughts as if I were a juror evaluating to Prof. George's statements.

I must also thank Prof. George for a sustained and remarkable work of civility and citizenship, as embodied in his papers and books, in which he states with care, skill, and above all reasonableness, his conservative positions on many social issues. I had thought that moral philosophers had gone AWOL in the twentieth century until I began reading Robert George. The United States would be a better country if liberals were as civil toward conservatives as he is toward liberals. I thank him for making "God's Reasons" available on this web site, and encourage everyone to read his new book, The Clash of Orthodoxies: Law, Religion, and Morality in Crisis, in which yet another revision of "God's Reasons" appears.

Nolo Contendere

To begin, I would like to emphasize a point on which I think Robert and I agree, even if I stray beyond what Rawls would call "public reasons" — the value of a single human life. We are each made in the image of God, according to Genesis. This statement is at first enigmatic, given that we are forbidden by the Second Commandment to make and worship any images of God at all. Its meaning however, is given in the Church's teaching about the incarnation of God as Christ. The Nicene Creed states that Jesus is simultaneously truly human and truly God — that Jesus the man is nevertheless "of one substance" with God. Therefore, it seems to me, being made in the image of God means human nature is such that God can become human and still be God.

Now I know of only one mundane relationship that is anything like this. In mathematics, an infinite set can be mapped in a one-to-one relationship onto a smaller subset of itself, but only if that subset is also infinite. You can map the whole numbers (going from 1, 2, 3, 4 and so on to infinity) onto the even numbers (going from 2, 4, 6 to infinity) by multiplying each whole number by 2. Now between any two numbers you choose, there are half as many even numbers as there are whole numbers, so the set of even numbers is half as big as the set of whole numbers. Notice also that every even number is also a whole number, but not the other way around — the even numbers are a subset (are contained in) the whole numbers. And yet for each and every whole number there is a unique even number. This doesn't work for finite sets. The set consisting of 1,2,3 (and no other numbers) can be multiplied by 2 to get the set 2,4,6 (and no other numbers) but the set {1,2,3} does not contain the set {2,4,6}, even though they have the same number of elements. [The notation for an infinite set is {1,2,3,...} where the ellipsis means ad infinitum, "and so on to infinity."]

In other words, the Incarnation of God in Jesus implies to me that being made in the image of God means being made as an infinitely lesser infinity than God, but an infinity nonetheless. Which means to me that the value of each single human life is infinite. The Commandment "Thou shalt not kill," bears more weight than any of us can imagine.

On another point, I must agree that a fertilized human ovum is obviously a new unique individual member of the species homo sapiens sapiens. That is, a fertilized human egg is a biological human being by definition. [More specifically, since a fertilized human egg can give rise to multuplets, it is at least one biological human being.] Historically, there has arisen a distinction between human beings and persons — a distinction that continues to be abused — but while one may reasonably debate whether a fertilized human ovum is a person, one may not reasonably deny that it is a human being.

But whether a fertilized human ovum is a person or not, it is certainly trying with all its might to become a person, and once implanted in a womb, it will do so absent accident, disease, or human intervention. The likelihood that it might already be a person seems low when one contemplates a clump of a few cells, but that likelihood grows as rapidly as the clump. Now, if you think there is some possibility that an innocent person might be standing behind a curtain, it would be morally wrong - evil - for you to shoot a bullet into that curtain. [Our classmate Tim Romano told me of this example in 1977.] By the same token, I agree with Robert George, and with His Holiness John Paul II, that abortion is evil. Moreover, I agree that it is intrinsically evil in that the goal of getting an abortion (other than abortions done to prevent permanent and substantial injury to a pregnant woman) is to kill a human being before it can become undeniably a person, with a moral claim on its parents and its society.

I must also point out that the US Declaration of Independence states that human beings are "endowed by their Creator with certain inalienable rights, among these being life...." The right to live was acknowledged by the founders of our government to be part of human nature itself, and therefore to exist independently of and prior to any government whatsoever. In particular, it exists prior to and independently of any vote on the question. [A majority vote to deny unjustly a person's right to live is wrong, no matter how many people believe otherwise. Though the majority rules in a democracy, the majority is not infallible. Consider that a democratic majority condemned Socrates, and that a democratic majority passed the Jim Crow laws that later showed the Nazis how to separate a minority from the general population.] In other words, the right to life is acknowledged (not granted) in the foundational documents of the Government of the United States. The government of the United States was instituted to secure that right, among others. There is nothing comparable in the founding documents that might be used to establish a right to abortion.

Thus far I can go with Robert George: Abortion is evil, and unlike the right to life, abortion is not a right, but a wrong. But, before we make public policy, we must try to understand the necessity and possible consequences of that policy.

On Becoming a Person

The objections to banning abortion are all driven by anxiety over the status of women. Abortion is seen as underpinning a woman's right to determine the course of her own life, and more intimately, what happens to her own body. Mary Anne Mills in "One Woman's Reasons," argues that while she would not get an abortion, it is of crucial importance to her that abstaining from it is her choice, rather than someone else's. In particular, she objects to the idea of someone who cannot become pregnant, such as a man (or presumably a postmenopausal woman), using the coercive power of the State to dictate what her choice must be.

Elsewhere in The Clash of Orthodoxies, Robert George argues that our bodies are not objects that are owned by our disembodied minds (or souls) but are in this life inextricably bound up with our minds as indissoluble single units — our selves. Robert makes this argument as part of his demonstration that euthanasia is intrinsically evil (with which I also agree) and I accept it here. Thus, dictating to a woman what access she shall or shall not have to abortion diminishes her power of determining what will happen not just to her body, but to her self. It impinges upon her power of self-determination.

Self-determination is recognized in the United States as a right (although the founding documents recognize it more as a right of communities than of individuals), at least in so far as one's actions do not conflict with the rights of any other person. The argument to ban abortion hinges on the idea that an unborn human being is a person at every stage of development, and that its right to live always trumps a pregnant woman's right to self-determination. Thus, when we even begin to consider the status of women, we are immediately turned to the question of whether an unborn human being is a person, and when it becomes one.

Robert argues that a fertilized human ovum develops continuously into an embryo, a fetus, a baby, a toddler, a teenager, an adult, and so on to a senior citizen without any change in nature. That the development is continuous (smoothly proceeding, uninterrupted) is beyond question. However, the phrase "without a change in nature" bears some scrutiny. Just as I used an example from mathematics to support one of Robert's points, I would like to use one from physics to challenge this one.

An isolated water molecule cannot freeze, melt, or evaporate. It has no surface tension. It cannot dissolve anything. Nor can a few water molecules. And yet, when we assemble enough water molecules together, they can do all these things and have all these properties. There is no change in nature in terms of the composition of the water molecules — but the mere aggregation of a sufficient number of water molecules suffices for for bulk properties and behaviors to emerge that are discontinuously different from the properties and behaviors of the constituents, even though the aggregation itself may be a continuous process. It is quite legitimate to say that the nature of a water droplet is different from the nature of a single water molecule, even though the water droplet is composed exclusively of water molecules. The whole is greater than the sum of its parts.

This is true for a trivially simple system like a water droplet, and much more profoundly true for living things. In particular, a fertilized human ovum has few of the properties and behaviors of a human infant other than the human genome. Moreover, a human infant lacks certain properties of a single fertilized human ovum — it will not become twins if you separate it into two halves, for example. In other words, the nature of an unborn human being changes discontinuously as it develops. This is what makes it reasonable to speak of "stages" of development.

Therefore, Robert's intuition that personhood is an inherent property of a human being from the moment of fertilization is precisely that — an intuition. In the field of public reason, it is open to challenge, and I challenge it here. I am not asserting that the person comes from without to dwell in the developing embryo. Rather I assert that the embryo, executing its self-directing genetic instructions, develops the capacity for personhood as an integral part of itself, and indeed becomes a person, a dynamic unity of body, mind and spirit, as Robert so eloquently states.

Thus, I believe there is some span of time in which the right of the developing embryo to live does not automatically trump a woman's right of self-determination. I don't know how long that time is. Hence, we are back at the analogy between getting an abortion and shooting into a curtain when one cannot insure that there is no person behind it. The act is manifestly evil, and the State can point to a dead body. But, just as we cannot check behind the curtain before the shot to insure that no person is behind it, neither can the State determine beyond reasonable doubt that the body indeed was a person prior to its death by violence. The evidence does not support an equivalence between early abortion and murder.

And yet, in our safety conscious culture, we shut down a production line, or recall a product if we find that there is a chance that some person might be harmed. Permitting abortion is an exception to this ethic. In abortion, we take the chance that we are killing an unborn person, while insuring to the extent possible the safety of the pregnant woman undergoing the procedure. The hypocrisy of this situation is obvious.

Less obvious is the hypocrisy of some claims that an unborn human is a person from the moment of conception. Consider that most anti-abortion positions allow for abortion in cases of rape or incest. The idea is that a pregnant woman should not be forced to deal with the consequences to herself of actions performed against her will. Such an "escape clause" is needed to get the electorate to even consider an abortion ban. But if a human is a person from the moment of conception, then that person has the same right to live as humans conceived by consensual sex. Permitting abortion in the case of rape or incest makes that unborn human less of a person than another unborn human. If one is going to permit early abortion in the cases of rape or incest, I think it more consistent to assert that a human being becomes a person during pregancy, rather than to assert that a human being becomes a person at the moment of fertilization.

The question then becomes, "Does a developing human that is not yet a person have a right to be allowed to become a person, and does that right trump the right of a pregnant woman to self-determination?" The Supreme Court in Roe v. Wade, implied that the developing human becomes a person with inalienable rights sometime between the first and third trimesters of pregancy, and that during the first trimester, a pregnant woman's right to self-determination must be given priority. This does not imply that a pre-personal developing human has no right to live — only that its right is subordinate to its mother's right to self-determination.

Until our society has a collective change of heart, I must agree with that implication for the following reason: Suppose we were to ban all abortions outright. The historical experience is that a substantial minority of women (some of them married mothers who already have children) will be desperate enough to seek illegal abortions. Some of these will be done under less than the best possible circumstances (including simple lack of follow-up) which will cause some of these women to sustain permanent and substantial injury or death. That is, a public policy, a law will have resulted in injury and death to humans who are undeniably persons. Those who enact such a policy must bear responsibility for those injuries and deaths, not perhaps on an individual case-by-case basis, but in aggregate. Consequentialism is not the only criterion of morality to be sure, but in the field of public policy, the policy makers must answer for how the numbers come out. In short, even though abortion is intrinsically evil, banning it is not automatically intrinsically good. Perhaps it is better to give people a "grace period," in which we let them choose for good or evil as best they can, and forgive them when they realize they need forgiveness.

Second Thoughts

Now, continuing to grant abortion on demand during the first trimester (which is when the overwhelming majority of abortions take place, indicating a kind of consensus among those seeking abortion that the earlier it is done the less evil it is) may be necessary for our "hardness of heart," as manifested in our failure to love our unborn children, our failure to love and support women in need, and our unwillingness to accept in loving submission to our Creator the burden they and their children may place upon us. Such an abortion license may be necessary to "create a fence" around the dignity, worth, and independence of women as persons. But there are consequences to society of so doing, and a multiplying danger that these consequences will get worse.

Elsewhere ("The Redoubt of the Soul") I have described the gathering assault on human nature that is beginning to happen as a result of the convergence of computers, communications, nanotechnology, and biotechnology. As Francis Fukuyama notes, the future may be "post-human" even though I think he lacks imagination in considering biotechnology to the near exclusion of the parallel developments I just mentioned. In particular, the technological augmentation of humans may result in the fragmentation of humans and human nature into various enhanced types, none of whom could grant equal status to unenhanced humans such as ourselves, any more than we could bring ourselves to let a gorilla become a commercial airline pilot. The fragmentation of human nature may create vast inequities, lay siege to fundamental human values, and at the same time undermine the foundation of Natural Law theory as a basis to criticize the process. And it may happen fast enough that those who read this in the year 2002 may see themselves become unwelcome and unpitied "living fossils" in a world they no longer recognize as their own.

I thus see the debate over abortion as an early stage of a much larger and more problematic series of moral problems in which the "humanity" of future humans is at stake. In that light, I take seriously Robert George's warning that automatically dismissing a fertilized human ovum as a non-person creates a class of disposable humans, potentially available for experimentation, and with it the potential for great evil. In other words, even if I am right that innocent personhood and its unconditional right to life emerge during gestation, this may be a debate that is better to lose.

If we as a society are to decide that personhood emerges sometime during fetal development rather than at fertilization, then we had better create a special status for the pre-personal unborn in which we recognize that although their right to live does not automatically trump a woman's right to self-determination, they nevertheless have other rights by virtue of their being both alive and human which must not be violated. Robert George is right in implying that what we do to society's most vulnerable members we might allow ourselves to do some day to anyone. I fear that "anyone" might someday come to include all "persons" as we know them today. I remind the reader that the Zimbardo and Schachter-Singer experiments of the 1960s support this warning. There is a little bit of Eichmann in us all.