Abortion is not Immoral and Should not be Illegal
by Richard C. Carrier
Fundamentals of Agreement and Disagreement
The latter point is significant, since it is such a specious argument for the pro-choice party to employ, except when responding to its corollary: the claim by many in the pro-life party that abortion should be illegal because of religious reasons. That argument is equally to be rejected on its face. Just as law is concerned with facts and evidence when trying cases, so must facts and evidence be the issue in deciding responsible legal policy in the first place. Though the moral values which motivate the people and their legislatures to enact laws can derive from religious convictions, these motives must still be matched to demonstrable facts before legislative action is justified, since legislation goes beyond personal interests and convictions and imposes demands, and permits the use of force, on others who are unwilling. Such an imposition needs an objective justification--though what a society is to accomplish with its laws must necessarily be put to vote in any democratic society, the truth is not something than can be or ought to be decided by vote. This is the ideal of freedom of conscience. Undemonstrable judgments of fact should be the reserve of the individual and not the basis of forcing opinions on others, for a very good reason: for therein lies the road to intellectual oppression and physical tyranny .
However, Roth and I disagree in the answering of these two questions. In the first case, as I had expected, we define "person" differently and we must explore the reason why. This is where a lot of "talking past each other" goes on in debates like this and thus I hope to gradually narrow in on the issue and try to communicate my point of view while trying to comprehend Ms. Roth's. Only then can we identify who is right and why. This ultimately becomes not so much a question of facts as of values, since "person" is meant to identify an object of value, and thus how it is defined will be determined by this founding value. The next step would then be to take this value-derived definition and apply it to observed facts.
Philosophy vs. Science
Thus, Roth is both right and wrong when she says, "we can't scientifically prove that anyone is a person." She is right in that defining "person" is a philosophical, not a scientific task. But she is wrong in part, because once we have defined the term, science can prove whether someone is a person. In fact, only science can do this with the greatest success and certainty possible. How science would do it is essentially what I describe in my opening statement. This brings us back briefly to the question of religion: for if it were possible to adequately define and then scientifically demonstrate the existence of a "soul," the question of when or whether a body was "ensouled" would cease to be a uniquely religious belief and would become a demonstrable matter of fact, open to scientific investigation, and capable of objective proof.
Theology vs. Physiology
Since the issue of ensoulment fails to meet the standards of both democratic politics and universal morality, we must look elsewhere for an objectively demonstrable feature of personhood. Once we have defined "person" with this need in mind, the task falls to science to identify when a person exists. Thus, the first question remains: how do we define a person? The answer lies in an analysis of our relevant values. For once we fully understand why we care about persons, we will automatically have our definition of "person." For in such a context, "person" means that which we value as a person. Since what we value in persons is almost certainly something everyone can see and experience at least indirectly, and is likely something that exists as part of the constitution of a human being, and the study of the constitution of human beings is a matter of physiological investigation, it is not far-fetched to anticipate that physiology could be where the answer lies.
Defining a "Person"
But this is an incorrect definition of personhood. First, though we do value especially the existence of a rational consciousness, we also value other forms of consciousness--it should not be assumed, for instance, that those who believe abortion is not immoral also believe that torturing monkeys is not immoral, on the faulty ground that monkeys are not rational creatures. To the contrary, monkeys are conscious beings, albeit inferior in certain intellectual respects. In my opening statement I even used the example of a mouse to make the same point. But we still do not regard monkeys as persons; thus our value for animals is not the same as our value for persons (though it is a value nonetheless). It is also true that rational creatures have a greater scale of value and thus are afforded greater rights--we recognize this implicitly when we confer greater rights on adults than on children, even children who are quite capable of performing "personal acts." But this does not entail that killing a twelve-year-old is not immoral. Nor does this entail that a four-year-old is not a person, for though he is an underdeveloped person he is considered a person nonetheless. So there must be more to what we really value as a "person."
Consequently, I did not employ this faulty definition that Roth rightly dismisses herself. Instead, I used in my opening statement the more general concept of "an individual human personality" as being what we especially value as a person. It is a matter of established scientific fact that even newborn babies exhibit, and thus possess, personality traits--one can see this described in almost any introductory college psychology textbook (and especially texts on developmental psychology). And it would be incredible if these traits simply "didn't" exist until the baby left the womb, for we cannot even conceive of a mechanism that would trigger such a fundamental physiological change under such simple circumstances (since any significant psychological change corresponds to a comparable physiological change, as science has generally proven). We know that these and other personality traits are the product of a complex cerebral cortex, and such a cortex exists well before a baby is born (as I noted, it is typically in place between the fifth and sixth month--in other words, at the onset of the third trimester). We thus have solid, objective grounds to suppose that an individual personality begins to exist from the sixth month of gestation. In other words, this is when a person exists. And once we adopt this definition of "person" on philosophical grounds, the scientific evidence needed to find a person is already available.
This in turn explains why we respect the rights of people in a coma (just as we do people who are merely sleeping). For it is the existence of a personality that we value, not its active manifestation. Though it is the prospect of active manifestation that makes a personality valuable, this prospect still exists for people who are sleeping or in a coma, for their brains remain intact, storing all the aspects of their memory and personality which need only be unleashed--thus the personality still exists even in such states. The one thing we can know, as certain as we know anything, is that a body without a cerebral cortex cannot and thus does not possess a personality, even of a simple sort. It is therefore not a person.
However, I don't know if Ms. Roth is correct that "current law only requires parents to provide for their children's needs after birth"  But there is no particular reason why this should have to be true on my theory. As far as I see it, acts which will cause future injury to a person are just as much crimes as acts which cause immediate injury. Thus, pregnant mothers who take drugs, or smoke or drink, etc., could justly be in danger of prosecution if a future person (their baby) is harmed by this--at the very least, they are certainly acting immorally. But to be exact, such an act would not strictly be immoral or justifiably illegal until the effect actually happened (i.e. when a person exists, who is in fact harmed). It is then that such an act would become a crime in fact. To complete the analogy, the attempt to harm a future person is not a crime unless there is a genuine intent, and in such a case the intent itself (coupled with action toward the intention) is the crime--attempted murder is a crime, but "attempted manslaughter" is not. However, abortion prevents the existence of a person and thus does not fall into this category of actions--no harm is ever done to any person in such cases, thus even the question of intent is irrelevant.
The Creation of Obligation
However, there is no obligation created for the woman to choose to carry the prenate to term. The extent to which the father's opinion matters depends on cases, since, as far as I know, this would be a question of oral contract (unless an actual written contract was in place, an unusual prospect I'm sure). There would be an analogy with intellectual property law, and this is a matter for an entirely different kind of debate (and not an easy one at that). But if we assume the father has no rights, neither does the mother have an obligation, since she cannot have an obligation to a person who does not exist. This changes in the third trimester.
Removing the Need for Abortion
However, I do not agree with the principle that these social problems never create a mitigating circumstance for abortion even within Roth's point of view. For it is a simple fact that circumstances can change the conditions under which an act is immoral or even illegal, and though one can certainly call, even fight, for those circumstances to be changed, this has nothing to do with what we ought to expect from those who are still in those circumstances and cannot escape them. Thus, if real, difficult, inescapable conditions actually exist for a woman, then abortion could even be the moral thing to do.
For instance, a woman already poor and with many children, in a backward, overpopulated country, would actually be acting for the greater good if she had an abortion, since the loss of work and money from the pregnancy, and the risk to her health, not to mention the addition of another mouth to feed, would actually serve to harm her and her existing children, or put them at serious risk of harm. That women should not have to endure such decisions is true, but irrelevant. Though Roth paints this as embodying the view that "violence against certain of our fellow human beings is an acceptable, even necessary way to solve social problems," the reality is that some acts are not solutions to social problems, but solutions to immediate problems--killing someone who is trying to kill you is not a solution to the social problem of violence, but it is certainly a solution to an immediate problem, and a solution that is generally accepted as both moral and legal, no matter how regrettable. Thus, accepting abortion does not have to entail the view that violence is a solution to a social problem. Although the killing of a person, correctly defined, would still require dire circumstances to be justified, on my view women do not really face a moral dilemma here, since they can abort a prenate before it becomes a person.
Now read Jennifer Roth's First Rebuttal
 I have already argued elsewhere that recognizing such a liberty, qualified by a reliance on the objectively demonstrable, will make the world a better place in What an Atheist Ought to Stand For (1999).
 The task of checking this claim against all federal, state, and municipal codes, as well as the endless bulk of case law at all levels, is far too daunting for me. I will thus grant Roth's claim and confine my remarks to theory. Also, throughout this debate, whenever I employ the word "crime" I intend a more philosophical term, meant to encompass an act that is immoral and could justifiably be made illegal, even if not in fact illegal in any present jurisdiction.
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