Examining conservative arguments against abortion
There is no topic on which liberals and conservatives are farther apart than on abortion rights.
They seem to be having different conversations. On one side the discussion centers on the murder of babies, while on the other, the framing is about ownership of one’s own bodies. A Martian listening could not fathom that these two groups are discussing the same topic.
I come down on the liberal side of the argument, but I think we should engage, in good faith, conservative anti-abortion arguments. We do our policy preference a disservice by: (1) not taking conservative anti-abortion arguments seriously by following them to their logical conclusions, and (2) not grappling with the difficulties that sincere conservatives raise.
Abortion and murder
Conservatives say they are against abortion because it is murder.
But to call it “murder” is granting the premise before it has been justified. “Murder” is a word that is imbued with value-judgment—after all, when one kills a bug or slaughters an animal for food, we do not call that murder, although clearly a life is taken. Those are killings, not murders. Nor do we call it “murder” when a dying patient is removed from life-support in accordance to their wishes, or, say, a limb is amputated.
But if one willfully kills a pet dog or cat or parrot, we could justifiably use the word “murder”—even though the life that is ended is not human.
So clearly, the word “murder” combines several notions: that the taking of the life was unjustifiable; that the life that was ended had a right to live; that the life that was taken had sentience; that it had an enjoyment of existence; and that the life that was taken was seen as being intrinsically valuable.
In other words, that the life that was taken had personhood. The word murder and the word personhood go together like a planet and its satellite. To end a life to which we have granted personhood is murder; to end a life to which we have not granted personhood is merely a killing.
Personhood for the unborn
Clearly, there is an ambiguity to when society grants personhood to a life. On the one end of the spectrum, almost no society on earth grants personhood to a cabbage growing in the field or to a fly. On the other, pretty much every society on earth grants personhood to newborn infants.
In between, there is much room for disagreement.
Hindus grant personhood to cows, and consider it evil to eat cow-flesh. Westerners think of dogs as companions, and consider it evil to slaughter and eat them. But (non-vegetarian) Hindus see no such violation in eating goat meat, and Westerners in eating pig meat, even though there is probably no substantial difference in sentience between a cow and a goat, or a dog and a pig.
The abortion debate in America sits right in the middle of this personhood gray area. Conservatives claim to grant personhood to even a zygote in the womb: that’s what it means to say that life begins at conception. Liberals claim the opposite.
In fact, conservatives regularly use emotionally-charged language to drive home their claim about personhood; regularly using words like “innocent babies”, or using phrases like “the blood of innocent children” even about zygotes and about embryos, which do not have blood, nor can they feel pain. Is this language just a reflection of how strongly they hold their conviction about personhood? Or is it emotionally manipulative for a reason?
Questioning claims of personhood
What forms of life a society grants personhood to is suffused with arbitrariness. The arbitrariness is inevitable because it is based on a single impulse—do we see the light of sentience in the creature? Do we see them as capable of suffering, and of enjoying life, and communing with us; or at least grant the potential that they might?
This is why Westerners, for whom cats and dogs are family-members, grant them personhood with the greatest of ease. This is why ancient cowherders who bequeathed Hinduism with its cow-worship granted not just personhood, but motherhood, to cows.
You either see the light of life in the creature or you don’t.
The arbitrariness does not mean that one cannot examine the claim of personhood for consistency.
In India, a ban on cow-slaughter has become a political cudgel to keep Muslims in their place. This is useful because of the very arbitrariness noted above: how can one argue with the halo of virtue a person attains by claiming the status of motherhood and sacredness for cows? As a political platform, it is brilliant. It makes the claimant unimpeachable and makes outsiders instant sinners.
But not so fast. Is the ban on cow-slaughter more about the sacredness of cows, or more about oppressing non-Hindus? As critics have pointed out, these same radical Hindus who demand protection for cows do not seem to care about aged cows, no longer useful to their owners, who go feral and starve to death whereas earlier they would have been slaughtered for their flesh. That’s no way to treat a mother!
That’s the difference between taking a claim seriously and taking the claimant’s word for it. When a claim of personhood is politically useful, we’d be fools to do just accept that they mean what they say and leave it at that.
Examining pro-life claims for consistency
The abortion wars have undoubtedly been politically useful for Republicans. This is not an issue that they just happened upon. Rather, during the Nixon administration, Nixon explicitly chose to woo Catholics away from Democrats by doing a U-turn on abortion rights under the tutelage of his adviser, Pat Buchanan.
Since then, the anti-choice platform has become the paramount issue for millions of voters in the country. The juice provided to Republican politics by this one issue enables them to wield power in much greater numbers than they otherwise would.
So, it is fair for us to examine Republican concern for the unborn to see if it checks out. (Republicans, by the way, do an analogical thing when they don’t take Democratic leniency on immigration at face-value—but rather choose to see it as a way to entrench power.)
Along these lines, liberals have often pointed out inconsistencies in the conservative position. Here’s law professor Carliss Chatman, questioning (on her pinned tweet) why conservatives never push for policies that actually treat a fetus as a person in the law:
Her tweet was later highlighted by Chris Cuomo, raising its profile considerably.
But merely examining what people say is never going to uncover inconsistency—pro-lifers have indeed claimed to support the notion of child support for fetuses. There’s even a bill in Congress from Republican Senators and a Utah law requiring fathers to pay prenatal child support. Here’s a Federalist writer complaining that liberals don’t understand the pro-life movement, because of course conservatives support prenatal child support. Here’s a Ricochet writer complaining about the same thing while asking dads to step up.
Supporting such bills is a bit of a freebie, given the difficulties of proving paternity of fetuses still in the womb. Paying lip service to the need for fathers to step up is also a freebie; who would disagree? The real question is, what do conservatives actually do with the power they win at state and federal levels? And the answer there is that they don’t vote for child support at all, let alone prenatal child support. Here’s Tim Miller, Republican apostate, responding to the Federalist writer, drawing this distinction between “say” and “do”:
But that’s not all. It is well-known that many women choose abortion due to income considerations; ergo, one way to entice women to bear the fetus to term would be to provide financial support for new mothers, especially new mothers in dire straits. Seems like it could be a pretty direct cause-and-effect at preventing at least some abortions. They could even make financial aid conditional upon bringing the fetus to term! But, as discussed in a recent podcast with Ezra Klein and Leslie Reagan, Republicans do not do this, really anywhere that they hold power.
As a matter of fact, all of conservative so-called concern for the personhood of the fetus is channeled into control of women and punishment of clinics, rather than incentives and aid with babies.
14th Amendment for the unborn
While most of us are waiting to see if the supreme court overturns Roe v Wade, some conservatives have wanted to drive home their notion of fetus personhood by going in the opposite direction: by construing the 14th Amendment’s protections for US citizens as applying to fetuses also. In other words, not just personhood for fetuses, but citizenship too!
Obviously, if the court ruled that fetuses must be guaranteed 14th Amendment protections, an absolute bomb would go off in the middle of the laws of this country. It would be a Bizarro Roe-v-Wade, banning abortion all over the country instantly. Absolutely every law would have to be reexamined to make sure fetuses are treated as citizens—for example, as Carliss Chatman says above, undocumented pregnant women could no longer be deported, because that would deport the US citizen fetus (or embryo, or zygote) as well.
This is an extreme claim for personhood. But do any conservatives actually want 14th Amendment protections to apply to fetuses? Yes, many say they do!
One particular legal theorist, John Finnis, chastises other conservatives who set their sights on merely demolishing Roe v Wade. If Roe v Wade falls, he says, the question of abortion will go to the states—but if we really believe that life begins at conception, we must use the courts to protect fetuses, not merely take our hands off. That is, use the 14th Amendment (that gave citizenship to freed slaves all over the country) to make abortion unconstitutional.
Other conservative writers have agreed with this theory. Here’s Josh Hammer in American Greatness. Here’s Ramesh Ponnuru in Bloomberg (though he says that even if the court sees fetuses as having 14th Amendment rights, that does not preclude Congress from legislating on the fine points of fetal murder).
They don’t really believe it
Are they serious?? The reason I ask is that, similar to the milder claims of personhood, I don’t think conservatives act in ways that demonstrate that they actually mean that fetuses ought to be treated as person-citizens just as much as freed slaves deserved to be treated as person-citizens back in the 1800s.
How so? Several reasons.
(1)
Imagine someone—say, a plantation owner—hires a contract killer to murder one of his former slaves. Would you say this plantation owner deserves to be punished to the fullest extent permissible by the law or not? Of course you would. And yet, when it comes to women choosing to abort, conservatives do not, as a rule, demand murder proceedings for them (as this review of Ponnuru’s book points out). They may attack abortion doctors, yes, and clinics, and call them murderers. But the clinics are merely the hired guns in this analogy.
This conservative double-talk led to a remarkable exchange on cable in the 2016 campaign, when Republican conman Donald Trump told host Chris Matthews that women who get abortions should be punished.
Now Trump is obviously a pretender, un-marinated in Republican orthodoxy. So he answered the question taking the obvious logical tack. If abortion is murder, the mother is a murderer. But this actually turned out to be a faux pas in conservative circles.
(2)
In fact, given this strong of a claim for personhood, there should be no exceptions made for rape or incest. How could there be? Would anyone claim that a baby born from rape is less worthy of protection from murder than a baby born out of a happy marriage? Of course not. And if an embryo is just as much a person as a fully born baby, they should not have to answer for their circumstances of creation either.
(3)
In fertility clinics, for each embryo that is implanted and grows into a baby, four times that many are destroyed. Yet, you don’t see conservatives bombing fertility clinics nor Republican legislatures blocking access to them.
Now indeed, I have identified one particular pro-life group called Students For Life that appears to be driven to to make their positions consistent with personhood for the unborn. They have in fact spoken up about IVF clinics and the destruction of embryos. They have also spoken against the exceptions granted for rape and incest. However, even Students for Life does not see the mother as the punishable party. But logically, if abortion is murder, the mother is a murderer. She chooses abortion (unless she is forced to abort her pregnancy by guardians). Anything short of that is a copout for political palatability.
(4)
Nor do conservatives seem to care about the natural rate of miscarriage for the average woman. About 10-15% of pregnancies end in miscarriage. Given that almost four million babies are born each year in the US, that amounts to about half a million “dead babies” a year. This is a Covid-level crisis every—single—year. And yet, do you see any conservative columnists exhorting governments to assign research funds to end the scourge of miscarriage? None. I don’t think there’s been a single one.
Why is that? The only explanation is that when conservatives claim to absolutely believe that life begins at conception, this is a politically convenient claim rather than something they actually believe. Josh Hammer pretty much admits this while arguing for making abortion unconstitutional—that this is a deliberate attempt to shift the Overton Window:
A greater widespread adoption and public dissemination of the ‘abortion is outright unconstitutional’ argument has the incidental effect of establishing an outer Overton window boundary of permissible opinion on the subject, thus making the Scalia-inspired “states’ rights” position relatively milquetoast by comparison.
Sincere conservative concern
This is not to say that all of conservative concern for the unborn is insincere.
But here’s a litmus test I use, and I think it checks out. Do they recognize any trade-offs at all? Do they acknowledge the elephant in the room—the owner of the womb the fetus is in? Or is the woman merely thought of as a host body?
After all, even if you grant that a fetus has personhood, surely the woman sustaining it, with the resources of her own body, does too. There is no a priori reason to place the fetus’s personhood above the mother’s. By demanding that pre-viability fetuses be brought to term, one is demanding that the woman’s body be conscripted into keeping the fetus alive against her will. Do pro-life conservatives show any flinching at this prospect at all?
Indeed, there are some conservatives who do grapple with trade offs. I take their squeamishness about abortion seriously.
Here’s Tim Miller in his Bulwark piece called “Strange New Disrespect”:
Ensuring that people can live a life of purpose and meaning must begin by respecting and acknowledging the value of the mother’s life. It should go without saying that she deserves the same opportunity to live a purposeful life as anyone else. And too often the treatment of mothers by politicians who claim to be “pro-life” ignore or are actively hostile to this part of the equation.
Also notable is a series called “It’s so personal” that conservative writer Andrew Sullivan ran in 2009 on his blog. While those stories from readers were about late-term abortion (which is heavily regulated), and Roe v Wade is specifically about pre-viability abortion, it still represented a pro-life conservative sincerely grappling with the difficulties of his position. As such, I thought it was welcome.
My own view of personhood
It seems to me that the conservative intuition about “life” is buttressed by religious faith. It is only religious faith that can purport to identify a single moment when something called “life” (sans definition) alights on a cell that was moments before merely a “thing”. Back in the days before science informed us, the moment of quickening—when the mother felt movements in her womb—was treated as the start of life. Before quickening, abortion was unregulated. After quickening, a fetus was a person, and protected.
Science has informed us of notions such as DNA, fertilization, eggs, and sperm. Conservatives, newly armed with this knowledge, have moved back the moment at which they see the giant stork in the sky bestow “life” onto the creature in the womb to the moment of fertilization.
But nature is never that clean. When did humans separate from apes? It’s fuzzy. Is a platypus a mammal or a reptile? Scientists have settled on mammal, but it pretty arbitrary. When does a man with thinning hair become bald? Not only is this unknowable with any precision, it is also an identified paradox. In fact, just as there is no one magical moment when a soul enters a body, there also isn’t one magical moment when it leaves. Just like conception, the moment of death, too, is fuzzy.
The fuzziness does not mean that all categories are meaningless, obviously; just that the creation of life, like much else in nature, is gradual.
What follows is an exploration of my own instincts about the milestones on the road to personhood. It may strike a chord in readers; then again, it might not.
(1) Fertilization
Clearly something important happens at the moment of fertilization, but the instant creation of a person, it is not. Yes, a new combination of DNA is brought into existence—the marker for new unique person. But in itself, a cell with a person’s unique DNA is not particularly precious, or we’d be heart-broken at each droplet that shoots out of us when we sneeze or speak.
What is precious about the moment of fertilization is the potential. To make some analogies: if one is knitting a sweater, it is the moment at which a pattern is chosen; if one is building a house, it is the moment at which a blueprint is picked.
But the fullness of personhood is more than just the plan. A person emerges from this plan only after months of layering on of nutrients taken from the mother’s womb. As such, while it is a key moment, I do not consider fertilized cell, or even a clump of cells, a person.
As this paper argues, nor do most people, despite what they say. Consider this thought experiment to test your instincts:
A refrigerator containing 1,000 unwanted embryos has fallen onto a small child and is crushing her to death. You can save the child, but only by upturning the fridge in such a way that all of the embryos will spill out of their test tubes and die. It seems clear that you should save the child.
(2) Heartbeat
For me, fetal heartbeat has always been an odd moment to consider as a milestone more meaningful than any other. It is a throwback from the old days when the heart was considered the seat of the soul. One might as well mark the moment the liver starts functioning as the key to personhood.
(3) Viability
Viability—the time at which a fetus can survive outside the womb—feels like a milestone, not necessarily on the road to personhood, but a milestone on resolving the trolley problem at the heart of pregnancy: it is time at which the mother’s body no longer needs to be conscripted in order to keep the fetus alive. It is important because the Roe v Wade standard before which abortion is considered a constitutional right is tied to viability. Of course, viability itself is not a particular moment, but rather, a continuum.
(4) Ability to feel pain
My deepest instincts about personhood are tied to when the fetus is able to feel pain. Call it sentience, or consciousness: for me, this is the point after which I think abortion should indeed be regulated. According to a JAMA review, this occurs in the third trimester, around 29 or 30 weeks. Of course, abortion is already highly regulated this late in pregnancy, all over the country. When abortions do occur this late, it is usually a very exceptional circumstance where the health of the mother or the fetus or both are endangered.
(5) Birth
Perhaps some liberals see it this way, but I simply do not see birth as the magical moment after which the newborn infant is a person, whereas days before, while in the womb, it was merely a part of the woman’s body. While in the womb, I felt my baby kick, hiccup, and respond to patting to help her (and me) sleep. Fetuses in the third trimester cry, smile, and respond to music. As I said earlier, I believe that the onset of personhood is gradual—thus, just as I don’t see conception as a magical moment when a spark is bestowed, I also don’t think of birth that way.
Final note
I end this on a note of frustration.
As I have written above, most of my sympathies lie with the liberal position. I straightforwardly do not believe conservatives when they claim to value the personhood of embryos as just as much as that of a fully born baby (for all the reasons given above).
But one consequence of a debate so polarized over decades is that no one is willing to step into the breach, where in fact most of the difficulties lie. So while conservatives ride roughshod over the personhood of the mother in their attempts to elevate the spark of life in her womb, I find that liberals sometimes ride roughshod over the personhood of a fetus late in development, post-sentience.
For example, while late third trimester abortions are rare, they do happen in the exceptional circumstance where the health of the mother or the baby are endangered. In this rare circumstance, is anyone demanding regulation to make sure that the last moments of the aborted fetus’s life are comfortable? Great care is taken to ensure the mother undergoing abortion is comfortable.
If I take my own instincts seriously, I would want regulation to ensure that the fetus (really, a sentient person by this point) is made as comfortable as possible as it is eased into its tragic fate. Sadly, I could not find any such.
It would be interesting to inspect feminist blind spots around abortion / fetal personhood / its my body, etc. Even going into what legal rights and responsibilities the father has in any of this. It's a big wet mess on both sides