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Abortion is not Immoral and Should not be Illegal

Abortion is not Immoral and Should not be Illegal

by Richard C. Carrier

I. Disputed Facts

In Jen Roth’s first rebuttal, several factual arguments are made that I do not believe are correct.  I will address these first.  However, these factual disputes are not very major–they do not go to the heart of the debate.  Even if Roth is correct about these facts, this still does not refute my argument that abortion does no harm.  Her only argument contrary to this is one that seems to hinge on a question of what it is we actually value, and not on the actual facts of the case apart from this, and this core issue I will address second.


A. Is There Widespread Elective Infanticide?

Ms. Roth provides evidence that “partial-birth abortions” are in fact performed for “elective” reasons.  I have already agreed that the ethics of very late terminations is at least questionable, and that laws against it would be appropriate for a democratic society–so long as they do not prevent the procedure for what I described in my opening statement as justifiable medical reasons.  So I could leave it at that.  But I think the facts need a little straightening here.

First, the medical community is unanimous in supporting my view that third-trimester pregnancy termination should never be performed electively.  The American Medical Association recommends that “abortions not be performed in the third trimester except in cases of serious fetal anomalies incompatible with life,”[1] the American College of Obstetricians and Gynecologists is “opposed to abortions of viable fetuses” (where “the decision of whether or not a fetus is viable must be left to the judgment of the responsible attending physician”),[2] and the Medical Society of New Jersey holds that “abortions should not be performed on fetuses considered viable (about 23 to 24 weeks) unless they have abnormalities incompatible with life or extraordinary circumstances involving maternal health factors.”[3]  Doctors who act differently are thus not representative of the medical community as a whole.

Second, Ms. Roth reports a statement made by Dr. Martin Haskell, the first person “to publicize” the partial-birth procedure, but this is misleading in a number of ways.  Besides the fact that he says he has been so consistently misquoted that he no longer speaks to the press,[4] Haskell was more than the first person to publicize the use of the “controversial intact dilation and extraction” procedure.  He invented it.  Third-trimester abortions were previously (and are still) performed by dismemberment inside the womb followed by extraction, and these are not “partial-birth” abortions (the term “partial birth” usually only refers to Haskell’s procedure, even though he never used the term himself).  Haskell’s role in pioneering this technique makes him the nation’s leading expert and teacher of the procedure, as well as its foremost advocate.  Thus, any statistics for his practice will not be even remotely representative.  His new method, which sparked the “partial-birth” abortion controversy in 1992, is no simple process.  Besides being exceptionally expensive (thousands of dollars), it is a three-day inpatient procedure, culminating in the extraction of a living baby and the puncturing of the cranium, which is more painless for the child (death is instantaneous) and safer for the mother (intrauterine dismemberment runs the risk of fetal bones lacerating the womb or vaginal canal).  Haskell employs the technique for all abortions after the 16th week, thus “partial-birth” abortion technically has nothing to do with the trimester in which the abortion is performed, and this has led to vast amounts of confusion in journalistic reports (and to misunderstanding of what Haskell has on occasion said).

To be fair to him, Haskell believes that fetal viability does not begin until week 25.  I have admitted that this is at least arguable–as I noted originally, cerebral cortex development is near completion, and fetal viability begins, some time between the 20th and 24th week, and it is true that the exact time varies on a case by case basis and only a doctor is qualified to assess this in each situation.  Thus, the number of abortions Haskell performs between the 20th and 24th week is on an arguable borderline.  Although I do think this is pushing it, I admit there is room to move here, and I will say only that the question must be decided on when a functioning cerebral cortex exists.  Haskell reports that he has only very rarely, and only in exceptional cases, performed abortions after the 25th week,[5] and 25 weeks is apparently one accepted national medical cut-off standard for viability.[6]  In my opening statement I reported the lowest standard, that of the ACOG, which sets the cut-off at the 20th week, and I realize that Haskell cannot be criticised for following another, equally-accepted standard.  As I had reported, odds of birth-survival between 20 and 24 weeks is almost nil, but since then I have discovered that even of births at 25 weeks “about 40% live, but many suffer severe disabilities, usually cerebral palsy, chronic lung problems or blindness.”[ibid.]  There is thus room for valid debate on when between 20 and 24 weeks the line should be drawn.  This is all the more so since, as I’ve recently discovered, “the connections between a structure in the base of the brain called the thalamus and the brain cortex doesn’t start developing until the 22nd to 34th weeks” and “the definite arrival of sensory impulses in the cortex can’t be detected by electrophysiological tests until about the 29th week of gestation.”[7]

What about Ms. Roth’s numbers?  It is correct that in recent years, 1.4% of abortions happen at 21 weeks or later,[8] which amounts to roughly 17,000 abortions per year.  But after the 24th week the grand total nationwide amounts to fewer than 5000.[9]  I seriously doubt those are elective procedures, and even if they are, I already agree this could be ethically wrong and made illegal.  However, Roth’s citation of the Bergen Record is very misleading.  That article quotes unnamed “doctors” from Metropolitan Medical of Englewood who estimated the number of annual abortions after the 20th week at their own facility to have been 3000.  That would mean that this one hospital was performing 18% of all such abortions in the entire country, which raises an eyebrow.  In fact, Metropolitan was one of only two New Jersey clinics authorized to do abortions that late. So this number would be far from representative–this is a procedure they specialize in, and that only they, apart from one other facility in the state, are allowed to do.  People have to come to them from all over New Jersey, even from outside the state, to have the procedure–not exactly an every-day elective option for any woman.  The Met also flatly refuted the paper’s claims by presenting documentary evidence that the annual number of all abortions  performed there was no more than 4,000, and most of those were between 12 and 16 weeks.  Indeed, according to the National Center for Chronic Disease Prevention and Health Promotion, in all of New Jersey there were only 672 abortions performed after the 20th week in the previous year.[10]  So the doctor’s estimates were vastly exaggerated–and I do not buy the journalistic cynicism that regards a doctor’s subjective estimates as more reliable than official documents and anonymous scientific data collection.  Not only that, but the Met proved that it performed no abortions later than the 23rd week.[11]  So once again when all is said and done we have no real third-trimester terminations in this case, and the simple fact is, though there may be as many as 40 clinics equipped to do this, there are fewer than 20 doctors who perform such abortions in the whole of the United States.[12]


B. Are There Limited Social Benefits from Abortion?

Ms. Roth responds to my argument that “legal abortion is necessary to check population growth” (though I actually never used the word ‘necessary’) because “there are few countries in which abortion is outlawed or stigmatized that are not suffering harshly from overcrowding” with the argument that “correlation does not prove causation.”  But it can imply it, when many of the variables are shared except the variable being tested and still a difference in effect is observed. Why, for instance, is China able to curb growth, but Iran is not?  The answer is neither simple nor certain, and I did not hinge my argument on this point since it cannot be conclusively demonstrated.  But we cannot exclude availability of abortion (and abortifacient birth control technologies) as a factor.  Companies are now laboring to produce once-a-month pills which effectively force menstruation even after fertilization, thus forcing an early abortion, with little or no side effects beyond those attending natural and early miscarriage.  If successful, this would put on the market a cheap, safe, highly effective form of birth control that works entirely by inducing abortion, yet it will be impossible to claim that this would provide no benefits to society and to individuals.  Certainly the research should proceed.

Even in the United States, I am not convinced that slowing of population growth can be achieved without some allowance of abortion, even if it could be achieved with less.  Roth claims that “In the United States, the decline in population growth was well under way by the time abortion was legalized nationwide in 1973,” but she fails to realize, apparently, that it was already legal in one form or another in many states after 1960, and indeed in most states before 1973, with Roe v. Wade merely ending the last vestiges of what amounted to already-unpopular abortion laws in this country.[13]  Indeed, abortion was still performed even when and where it was illegal, and advances in medical technology in the mid-50’s made this more possible than ever before.  But doctors were effectively given carte blanche to perform abortions, since they could contrive the excuses allowed by the new laws, in California in 1961, and the American Law Institute’s highly influential Model Penal Code was ratified in 1962 with the same leeway toward legalizing abortion, and this persuaded other states to follow–not surprising, considering that 50% of the populace was already in favor of loosening the restrictions, and this sentiment continued to rise.[14]  By 1967, abortion was also effectively legal in Colorado and North Carolina, and the ACLU set out to defend a woman’s right to elective abortion in courts everywhere.  By 1969, effective legalization had expanded to ten states, and then Missouri joined them, while the remaining barriers were struck down in California by the State Supreme Court.  New York completely legalized abortion in 1970, setting the final trend, and abortion laws started falling in Federal judgments across the country–by then, abortion was already almost universally practiced quasi-legally, and it was this fact that led to the Roe v. Wade case in the first place, which was filed in 1971.

Keeping this in mind, we observe a near halving of the United States population growth rate at precisely the time that abortion started becoming more widely available in the 1960’s [15].  And Roth’s own citation of census data confirms this: before 1960 (and excluding the duration of the Great Depression and WWII) the average rate of net growth was in the vicinity of 1.7% annually, and this drops steadily every year thereafter until leveling off at an average of 1% or less after 1967.  No doubt this was also due to a corresponding rise in the availability and use of effective birth control chemicals, but since birth control began to be legalized and disseminated widely even before this period, we cannot be sure that abortion was not a helpful break on population growth.  More importantly, since the Pill (introduced in 1960) and other chemical birth control technologies cause an unknown and unpredictable number of abortions, the rise of chemical birth control is itself a rise in reliance on induced abortion that cannot be ignored.  And this was even more so in the later 1960’s, when a major form of birth control was the IUD, a device that only works by forcing a conceptus to abort.

Finally, when we consider Center for Disease Control data [16], we find that in the U.S. in 1997 there were 305 abortions induced for every 1000 live births.  That means that if abortion were banned or ceased, the birth rate in this country could have risen as much as 30% that year, with up to 1305 live births in place of every actual 1000.  Our population would have grown that much faster.  If we run the numbers a different way, using the census data cited just above,[ibid.] there were approximately 268 million people in 1997, rising during that year by 2.6 million, for a 0.96% rate of growth.  If even 80% of the 1.18 million abortions of that year were carried to term, the population of the U.S. would have risen by 3.5 million, for a 1.3% growth rate, a level unseen since 1971, and never typical of any year after 1965.  In other words, our low growth rate would soar back to pre-1965 levels, an era without widespread abortion.  Since it was in the mid-sixties that abortion became progressively legal, and birth control education and technologies are now more available than ever before, this provides some albeit imperfect confirmation of the claim that abortion is beneficial in restricting population growth even in this prosperous country.

Whatever the case, I will admit that this is not a question that has been answered with adequate studies to my knowledge, and thus my impression of things can certainly be wrong.  That is why this fact does not play any large part in my argument, which still stands even if abortion is not necessary.  For abortion (by any means–clinical, chemical, or via the use of pills, injections, implants, or IUD’s) is certainly still helpful in controlling growth, even if as a supplementary procedure available when all else fails, and thus it provides a limited social good, which was my only point in bringing up this role of abortion in the first place.  I already agreed that limited social benefits can be outweighed by substantial harm, so this particular argument of mine only stands, and was only meant to stand, if abortion is not harmful.  Thus, I quite agree that “we can and should find non-destructive means of curbing” population growth–it was only my contention that abortion is not destructive.  In this respect Roth may have misunderstood my point.

Finally, I think Ms. Roth may be overlooking a major internal problem with her position here: she did not address the abortifacient role of birth control technologies in her first rebuttal.  So I will reiterate: if Ms. Roth is correct, then the Pill, Norplant, IUD’s, and hormone injections, as well as native contraception remedies (such as pomegranate), are immoral and ought to be illegal.  But if we deprive the earth not only of clinical abortion, but of virtually every single birth control technology that exists apart from the condom, it is not at all clear how we are to prevent a disastrous population explosion, much less maintain the current rate of growth, which is already too high.


C. Are There Limited Individual Benefits of Abortion?

Ms. Roth claims that “if the morbidity/mortality rates for abortion in general are in fact lower than the rates for carrying to term in general…it still does not follow that abortion is safer than carrying to term for any given woman.”  Although perhaps it is true that “accurate statistics on abortion are always hard to pin down,” I do not understand what she means here.  Is abortion a greater, lesser, or equal risk to a woman’s health?  That is a straightforward question. And I would be seriously surprised if abortion were not significantly less a risk, considering that it is an outpatient procedure that, unlike giving birth, never calls for a large emergency staff or the readiness of a large quantity of life-saving equipment, never requires surgical lesions in the mother–unlike C-section, which is a real and unpredictable risk for every pregnant woman in labor, and very often even ordinary births require cutting the birth canal, as many a mother will attest–and abortion can very often be accomplished chemically (and this will be the case more and more frequently), even without directly consulting a doctor: for ordinary birth control pills, injections, IUD’s and implants all cause abortions on occasion without the mother ever knowing it, and a woman who wants to try to ensure this can, within three days after intercourse, take a double or triple dose of birth control pills, without anyone else being involved.

In contrast, among other dangers associated with pregnancy, which persist for nine months (ordinary abortion, as I originally defined it, consumes a mere matter of minutes), pregnancy can cause permanent damage to a woman’s back, knees and feet, as well as some of her bodily organs (such as her kidneys), and puts a woman at risk for a number of disorders, including various forms of malnutrition–unless she is well fed, and well cared for by a competent physician throughout the term, and is allowed a significant amount of freedom from work (including housework and childcare), luxuries a great many women in the world now cannot afford no matter how much they ought to have them.  The bottom line is that pregnancy and labor clearly entail numerous health risks that are avoided by abortion, and I really doubt that any risks involved in abortion equal or exceed them.  Certainly, the burden is on Roth to prove otherwise.  And that will be difficult, since at least one Federal court has found on my side in this issue:

Abortion is one of the safest surgical procedures in terms of mortality and morbidity, and it is much safer than continuing the pregnancy through childbirth. In the first trimester of pregnancy, when most abortions are performed, a woman is twenty times more likely to die from continuing the pregnancy through childbirth than from a first-trimester abortion. At any stage of pregnancy, a woman is ten times more likely to die from continuing the pregnancy through childbirth than from an abortion. [17]

D. The Limited Benefits of Abortion Stand

It was never my contention that women “have abortions due to medical indications,” but rather that by avoiding pregnancy and labor they were, knowingly or not, doing better for their own health, and trading a greater risk for a lesser one.  Nor have I argued that we should not try to improve women’s lives, “to build mother-friendly schools and jobs, improve adoption procedures, crack down on fathers who abandon their partners and children, and provide health care and public assistance when necessary,” and so on.  I agree with all of that, for reasons far more significant than anything to do with abortion.  But this is a goal, a mission, not a reality.  Women do not universally enjoy those things now, therefore stop-gap measures must be implemented.  And indeed, even when all women do have all these things (if ever that happens), it still will not follow that abortion will be unneeded.  Only when all abortifacient birth control technologies, from the Pill to Norplant to IUD’s, are obsolete, and replaced with 100% effective non-abortifacient pregnancy-prevention technologies, which are cheap and universally available, will elective abortion itself become obsolete.  Then, it will simply become a rare if not forgotten medical procedure, and there will no longer be much point in discussing its morality or legality.  Sure, it would be great to have that technology now, but we don’t.

In the end, I see no merit in the thesis that to admit abortion is needed in the here and now “would be to admit that we are incapable of doing better.”  This is a non sequitur.  We need donor transplant surgery in the here and now, as no one will deny.  Yet this does not entail that we “admit we are incapable” of developing the ability to grow cloned organs instead, or to cultivate any other superior solution.  We can do both: employ what is necessary while working to provide something better.  And as I have made abundantly clear, even this is too strong a dichotomy.  For it is not my argument that abortion is necessary so much as that it is useful, and until we develop the utopian birth control device I described above, abortion in one form or another will always be useful–for there will always be a benefit to be gained, socially or for the individual, by having safe and available abortion technologies or procedures, and that benefit will remain even if (or when) abortion is unnecessary.

And I will now add to the reality of this risk differential and population-control benefit, the fact that even from a mere quality-of-life perspective, a pregnancy entails a great deal of discomfort: daily vomiting, fatigue, soreness and nausia, confusion and depression, unhealthful weight gain, not to mention the rather extreme discomfort of labor–and that is just the short list.  Abortion by contrast is significantly less trying, being vastly shorter in duration and having almost none of the attendant problems of pregnancy, even for a moment.  Thus, even if they were equally risky–and they aren’t–a woman’s happiness is advanced by abortion if she does not want to have a child.  Thus, so long as abortion does no harm, it clearly provides yet another limited individual benefit in this sense, in addition to the other two I have already argued.  So the question is not whether abortion provides some limited benefits.  That is irrefutable.  The question is whether abortion causes significant harm–harm that is significant enough to outweigh these benefits.


II. Disputed Values

The differences that remain seem to be primarily confusions of language and meaning, for it does not appear that there are any other disputes about the facts.  It is possible that one point of contention is the nature of what humans actually value, but I am still not sure that is really the case.  All I can do is try to clarify where the linguistic confusions in my opinion lie, and to see what results.


A. Actual vs. Potential

Ms. Roth says “it is not true that the body is merely an empty shell before the 20th week, passively awaiting the addition of an individual personality” since it “has been directing the development of the brain all along, according to the instructions encoded in its DNA — and with modifying influences from the external environment.”  I don’t see how the one follows from the other.  The fact that my garden is passively awaiting the addition of a tree is not negated by the fact that there is a germinating tree seed in its soil.  Just because there is a DNA code and an active chemical process working as I speak to generate a tree in my garden does not mean my garden has a tree in it.  At the very least, a tree does not exist until there is a visible sprout, and if I were to be especially particular, until there is bark (especially if by “tree” I mean something I can cut down).  Things don’t exist until they exist–even when they are in the process of being built.  A human personality is the existence of a certain level and kind of complexity in the organization of matter, and until that complexity actually exists, a personality does not exist.

The reason we bother making distinctions between trees and seeds, and between blueprints & bricks and actual buildings, and between prenates and persons, is that things change fundamentally in various stages of complexity and organization, and we place different value on things accordingly.  Thus, Roth says “the prenatal human may be currently unable to manifest a particular personality, but s/he is nonetheless in the process of developing it,” yet I am saying that the prenate does not even have a particular personality.  That is not the same thing as saying that a prenate cannot “manifest” a personality–for if it has no personality to manifest, the whole question is moot.  And we cannot appeal to mere genetic personality traits as being the issue, for these are shared by twins and yet twins are individuals.  What makes twins distinct from each other is the influence of environment upon their personalities, and this means they must actually have personalities before they can become individuals.  The question is thus when an entity has an actual personality that has actually been individualized by environmental effects–the only time when an “individual” can really exist–and though there is good reason to think this occurs before birth (and without question at birth), I do not see any good reason to think that this can occur before the fifth month of gestation.


B. What We Actually Value

What remains unclear to me is whether Roth means to say that we really value (or ought to value) potential persons just as much as actual ones.  If this is the point of debate–if Roth means to say that it is immoral and should be illegal to stop a person from coming into existence–then Ms. Roth must argue for the adoption or acceptance of a value for not-yet-but-on-the-way persons.  I do not believe such a value even potentially exists universally.  On what ground would we give a genome or a cell the right to be developed?  And is it the act of killing the conceptus, or actually not letting it develop, that is supposed to be wrong?  After all, what if a woman who conceives has her embryo removed alive and frozen for later use, but then never uses it?  Would the state compel her to use the embryo before it approached its expiration date?  Could she let it lapse without being called a murderer?  And when we have the technology to regenerate the brains of the dead, even though the new brains will merely be clones–possessing the minds of entirely new people, and not the actual people who died–will we be morally obligated to regenerate them?  Will death itself become effectively illegal?  After all, a body without a brain is still a potential person, simply awaiting our nurturing to develop anew.  And we cannot say that a fetus is different simply because nature is already developing it–for, on the one hand, nature is not a person to whom we owe any special obligations, and on the other hand, we are normally obligated to ignore nature and attempt to revive the dead (such as through the use of CPR) when we are able.  These and many similar questions plague my mind and make me very curious just what someone like Ms. Roth really means to advocate.

As far as it seems to me, we value actual persons, not potential ones, and have no reason to value the latter in any way that relates to the issue of abortion.  But I could be proved wrong if it can be shown that most humans actually value potential persons as much as actual persons, or:

1. Most humans share any value(s),


2. in combination with the facts of this universe,

3. entails that we value potential persons

4. enough to regard them as in some sense deserving of the rights accorded to actual persons.

I await the demonstration.


III. Conclusions

This debate has expanded into both sides of a moral argument, into a dispute about certain facts, and a dispute about certain values.  However, the facts I presented originally about the act of abortion itself have not been challenged, and her belief that abortion is harmful seems to be based on exactly the same understanding of the facts, and therefore ours must be a difference of value.  Instead, Roth has only criticised, and not very successfully, my claim that abortion has limited benefits.  But that is secondary to the question of whether abortion is harmful, which surely it must be in order to be immoral.  Even if abortion provided no benefits, that would not make it immoral.  All Ms. Roth has claimed is, effectively, that stopping the development of potential persons is a harm.  But this would only be true if someone were actually being harmed by the act (and it is unclear to me who that would be), or if humans generally held potential humans in such value that humankind would be harmed by anyone acting contrary to this value.  Neither has been demonstrated.

Consequently, this may come to a difference of fundamental values, where Roth simply has values that I and many other humans do not.  If that is the case, then she is not defending a universal moral truth, but merely explaining the basis of her own personal principles.  If so, then it remains the case that abortion is not immoral (in any universal sense), and I would respect Roth’s personal view as a way to conduct her own life: not only for how she handles her own pregnancies–i.e. not using chemical birth control, not having abortions, etc.–but also for how she acts to help others, by not supporting abortion or chemical birth control directly, while instead working to make them obsolete.  But I would not respect this as a measure by which to judge others, nor would I approve of any efforts to impose her personal principles on others by law.  I believe that laws should not take away freedoms where no obvious harm is being done.  In fact, Roth has presented no arguments that would justify outlawing abortion.  I repeat my original conclusion, with the multiple addition of one clarifying word: “there appears no way in which outlawing abortion would even indirectly preserve or protect the liberty of any actual individual, or provide any general benefit to the citizen body without uneccessarily depriving actual individuals of their liberty.”

Now read Jennifer Roth’s Second Rebuttal

[1] “Late-Term Abortion: Focus of JAMA Forum,” American Health Line, Aug. 26, 1998.

[2] “‘Partial-Birth’ Abortion: NEJM Reviews Issues,” American Health Line, July 24, 1998.

[3] “Doctors Draft Late-Term Abortion Guidelines,” American Health Line, Dec. 23, 1997.

[4] “Partial Truths: In the PR War Over a Form of Late-Term Abortions, Both Sides Are Guilty of Manipulating the Facts: Here’s What They Are (and Aren’t) Saying,” Los Angeles Times, Apr. 2, 1997, Wed. (Home Ed.) E-1.

[5] “Dilation and Extraction Procedure Surfaced in 1992,” Omaha World-Herald, Apr. 20, 2000, Thu. (Morn. Ed.), p. 6.  All information above this note regarding Haskell is taken from this article.

[6] “Partial Truths,” above.

[7] “Late Term Abortions: Who Gets Them and Why,” The Washington Post, Sept. 17, 1996, Tus. (Final Ed.) Z12.  This article also reports that the number one customers for elective abortions after the 20th week were teenage girls who did not show until that time, and thus did not know they were pregnant.  I do not think that in itself would justify the procedure, but it is something I admit I had to ponder.

[8] “Abortion Surveillance — United States, 1995,” The National Center for Chronic Disease Prevention and Health Promotion.

[9] “Partial Truths,” above.

[10] Table 6 (“Abortion Surveillance,” above)

[11] “Partial Truths,” above.

[12] “Late Term Abortions,” above.

[13] Cynthia Gorney relates the history of abortion statutes in Articles of Faith: A Frontline History of the Abortion Wars, w. revised epilogue, Touchstone, 2000 (1st ed. 1998), pp. 42ff.

[14] Ibid., p. 51.

[15] Historical National Population Estimates:  July 1, 1900 to July 1, 1999

[16] Abortion Surveillance: Preliminary Analysis – United States, 1997

[17] Statement of the court (majority decision), Hope Clinic v. Ryan, U.S. District Court, Northern District of Illinois (Eastern Division), 995 F. Supp. 847; 1998 U.S. Dist.


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