Abortion is not Immoral and Should not be Illegal
by Richard C. Carrier
Fundamentals of Agreement and Disagreement
Jen Roth has composed her case well, and I can see this debate will be of great value to everyone, not only secularists. I will begin with the major points of fundamental agreement and disagreement between us. Roth is quite right when she identifies the two key issues in the abortion debate: "whether every human being is a person is...one of the main controversies in the abortion debate," and "many defenders of abortion, both religious and secular, claim that the question of when life begins is a religious one, and therefore the views of any one group cannot be written into law."
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
The question "at what point does an individual physical being come into existence," Roth says "can be answered scientifically," but the question "at what point does that being become a person which must be accorded rights....cannot [be answered scientifically]," for "personhood is a philosophical issue." This is in part correct, since this is ultimately a question of how a word is to be defined (more specifically, how the object of our values is to be completely and correctly described), and though scientists can create operational definitions for use in organizing experiments and clarifying the results, the issue of defining terms for accurate use in general human life is the domain of philosophy, not science. Though a scientist can also be a philosopher, and the results of both fields can be combined and intertwined, the two activities should always be distinguished and never confused. With that in mind, Roth's statements need to be reformulated: science can only tell us when an individual human being comes into existence after we have defined "individual human being," which is primarily a philosophical task; likewise, contrary to Roth's words (though perhaps not her intent), science can tell us when that being becomes "a person [who] must be accorded rights" once we have already tackled the philosophical task of defining "a person [who] must be accorded rights."
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
The fact that this can't be done is what makes such discussions of "ensoulment" irrelevant to proper legal policy debates, since without facts to back up the beliefs, the beliefs fail to escape the domain of liberty of conscience--in other words, so long as a case cannot be proven, what one believes in that case is merely a matter of opinion (or, if one wishes to cloak it in more honorable vocabulary, a matter of "faith"). And mere opinion (much less religious faith) has no business in decisions concerning the proper use of force to compel obedience in a democratic society. As to the moral question, there are two results: first, discussions of ensoulment are irrelevant to the personal moral lives of secularists who, by being secular, would not regard undemonstrable facts as carrying any great weight in their moral thought (as Roth acknowledges); second, discussions of ensoulment would be relevant to the personal moral lives of the those among the religious who give matters of faith greater weight, but this would only fall within the domain of personal principles, not of universal moral truth, as I explained in my opening statement.
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"
This I attempted in my opening statement: we value human minds, which we only know to exist as the result of (or in conjunction with) "a complex cerebral cortex." For we do not regard with special value a mere body without a mind--though we can keep a brainless body alive indefinitely, we do not generally consider this the proper thing to do (apart from its utility in preserving donated organs for transplant). Roth, instead, follows what is often proposed as definitive of personhood, and rightly finds fault with it: for "a being who performs personal acts" (to use Roth's terminology) does not include "the comatose, infants, and prenates."
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.
Nevertheless, with many of Ms. Roth's individual points I agree--that is, if her arguments are subsumed within my analysis above. For instance, though Roth competently refutes the claim that "even if the prenate is a person, the pregnant woman is not obligated to allow him the use of her body," her arguments, in my view, only apply to a personality--which only has a chance of existing after month five of gestation. And to an extent she already agrees with me, noting that "there is little reason to even discuss whether a woman has obligations to a non-person." As to exactly when between the fifth month and birth an actual personality begins to form is currently beyond scientific investigation, but we have no reason to doubt that it begins very early after, if not at the same time as, the formation of a complex cerebral cortex. And thus, within that period of gestation, I agree with Roth, and for anyone who doesn't, her argument is well worth reading.
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
Ms. Roth is additionally right to note that sex--even when all precautions are taken--entails risk. And whoever assumes a risk also assumes any obligations that are thus being risked. This is the basic principle behind all civil law, and I do believe that a woman who becomes accidentally pregnant should have the right to sue the father for his share of the expenses in civil court, just as she would if he had damaged her property or caused the loss of her job--and that share could arguably be greater than half, since she is already under several burdens that cannot be shared or transferred. The corollary of this is that the father's voluntarily meeting of these expenses (without the involvement of the law) would be the moral thing to do.
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
I also agree with Roth that we ought to seek solutions for the even-more-troublesome social problems that often motivate abortions: as she puts it best, "pregnancy can mean social, financial, and professional ruin for a woman," "the sacrifices of raising children are borne mainly by women," "many women are still uneducated about the way their bodies work, and many others lack access to safe, affordable contraception." Indeed, if anyone really wanted to end abortion for personal reasons, they would be most wise to put every effort into eliminating the need for it, and not try to impose their opinions on others by force. Yet the pro-life party is rarely even modestly involved in efforts to eliminate the social problems that motivate women to seek abortions, and for that they can be justly criticised.
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.
Ms. Roth and I agree on all the facts, as far as I can see. We only differ on one point of value, and that difference I suspect is the result not of any real disagreement, but of a semantic confusion--a logical error in moving from our value for persons to the defining of the object of that value. My argument is that we do not value mindless bodies. We value minds. Thus, when we talk about "persons" in the context of such values, we can only be referring to minds. Since minds do not exist before the sixth month of pregnancy, as science can effectively demonstrate, it follows that persons do not exist before then. Since Jen Roth's argument, both legal and moral, hinges on the meaning of "person," and I believe that I have correctly clarified its meaning, it follows that, if I am right, she should agree with me that abortion (as I originally defined it in my opening statement) is not immoral and should not be illegal.
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.