A Humanist's Response to the Sanctity of Human Life Act [Clinton Wilcox]

Ken Burrows, writing for the blog The Humanist, in an article titled "Politicians Playing God," tries unsuccessfully to give arguments for why the proposed bill, H.R. 586, should be rejected. A summary of the bill states: “This bill declares that: (1) the right to life guaranteed by the Constitution is vested in each human and is a person’s most fundamental right; (2) each human life begins with fertilization, cloning, or its equivalent, at which time every human has all the legal and constitutional attributes and privileges of personhood; and (3) Congress, each state, the District of Columbia, and each U.S. territory have the authority to protect all human lives.” The bill has been co-sponsored by 31 Republicans.

The bill, of course, is correct. It is scientifically uncontroversial that each human life begins at fertilization. And it is also true that the unborn have a natural right to life that is protected by the Constitution. In 1973, the Supreme Court invented a “right” to abortion, but the reality is that the unborn were full human persons under the law and protected by the 14th Amendment for almost 100 years after the 14th Amendment was ratified, and then before that in American and British common law. But what arguments does Burrows provide us with? Let’s briefly examine them.

Burrows decided it was important to look at the gender of these 31 Republicans and accuses them of being men. Of course, this is irrelevant to the truth of their arguments. The bill isn’t a bad one just because it’s supported by all men.

He goes on to state that “such ‘personhood bills’ are almost always religiously driven.” So this is irrelevant statement number two. If these 31 Republicans really are motivated by their religion, that doesn’t prove the bill false. Most slavery abolitionists were also religiously motivated, but I’m sure Burrows doesn’t believe we should make slavery legal again because of that. Instead of arguing why this bill should be opposed, Burrows goes on to attack certain characteristics of these 31 co-sponsors that he doesn’t like.

Burrows next makes a fallacious appeal to consequences. The consequences he laments are: that it doesn’t accommodate any special-circumstance exceptions, not even in the case a mother’s life is threatened; it misinterprets the Fourteenth Amendment which does not guarantee a “right to life” but that a person cannot be deprived of life without due process of law; it would outlaw some popular birth control methods, such as the IUD which prevents a “fertilized egg” from implanting; and it would open an unfathomable conundrum as to the fate of excess embryos created with the goal of aiding pregnancies immediately or preserving them for later.

But appealing to consequences is not a way to prove the bill is wrong. These consequences are not illegitimate -- indeed, they are the logical conclusion of the pro-life argument, if the pro-life argument is successful. Any special circumstance that would justify killing someone outside the womb would justify killing someone inside the womb -- if the pregnancy is life-threatening, doctors would be able to perform a life-saving medical procedure, even if it’s not spelled out in the law. And other “special circumstances,” such as rape or fetal deformity, do not actually justify abortions. Saying that it misinterprets the Fourteenth Amendment is just splitting hairs -- if you cannot be deprived of life without due process of law, then you are guaranteed a right to life. What else does Burrows think a right to life is? Any birth control methods which commit an early abortion should be outlawed -- this would not be controversial to a pro-life advocate. And finally, pro-life people already accept the full humanity of excess embryos -- it is not a conundrum at all. That is why pro-life people oppose IVF, cloning, and other methods that create embryos artificially. Creating excess embryos is highly unethical.

Burrows then argues that perhaps the most contemptible aspect is that politicians are playing God, “arrogantly insistent on defining a debatable concept like personhood by their perspective only.” Burrows echoes the argument of the Supreme Court that religious, philosophical, and legal authorities have had difficulty with defining personhood. Of course this is an extremely specious argument: Burrows, for some reason, thinks that preserving fetal life is playing God but taking fetal life is not. We currently have a situation in which doctors are allowed to play God and take the lives of innocent, defenseless human beings all because they can feign ignorance about personhood. So no matter which side wins out, they will be “playing God” as Burrows understands it.

Burrows then repeats the oft-made argument that early church thinkers, like Augustine and Aquinas, did not pronounce on when ensoulment occurred. Of course, the people who make this argument always leave out two critical details: 1) these Christian thinkers still opposed abortion because they recognized that if you don’t know whether or not they have a soul, you ought to err on the side of caution and not take their life, and 2) the science of embryology determined human life begins at fertilization in the 1800s, several centuries after both of these gentlemen lived. If they had known the scientific information that we know now, they would certainly have opposed abortion in no uncertain terms from fertilization. After all, one of the earliest Christian documents, the Didache, unequivocally condemned both abortion and infanticide.

Burrows goes on to make a similar argument from English and American common law regarding quickening -- but of course, the same response holds here. Quickening was seen as the point at which an abortion could be prosecuted as a crime because the science of embryology had not yet proven the unborn are human from fertilization. It was a crime after quickening because that was the point that we could know the unborn were alive, because dead things don’t move under their own power.

Burrows then goes on to argue that there is no religious unanimity regarding personhood today. This, of course, is a terrible argument. For one thing, if personhood really does begin at fertilization, then the fact that you disagree does not justify you taking their life, just like no one was justified in enslaving black people, even when it was legal in the United States. Additionally, personhood is not a religious matter -- it is a philosophical one. Constantly repeating that pro-life people are just basing their views on religion doesn’t make it so, even if Burrows thinks it does.

Burrows’ next argument is from the Constitution: He argues that the Supreme Court reasoned that the Constitution doesn’t define the term person literally and that "in nearly all instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that is has any possible prenatal application.” But this is just incredibly poor reasoning on the part of the Supreme Court and on the part of any who take its decision seriously. No, the Constitution doesn’t actually define the term person, but the unborn were considered persons for almost 100 years after the 14th Amendment was ratified. The only reason they are not considered persons now is because Justice Blackmun, et al, redefined the concept of personhood specifically to exclude the unborn. But Blackmun’s argument could justify killing just about anyone. You could argue, for example, that in nearly all instances, the use of the word person is such that it only has application to adults. Therefore, anyone under the age of 18 does not have constitutional rights.

Burrows continues that the court concluded viability is when they have a “compelling” interest in protecting fetal life because that’s when it has the capability to live outside the womb (though Burrows is wrong -- it’s not at the end of the first trimester when the fetus is currently viable, but at almost the end of the second trimester -- around 22 to 24 weeks). But again, this is a specious argument. First, to the medical community, viability is not the ability to survive outside the womb but the ability to live, grow, and develop.[1] So any embryo that implants in the womb is viable. Second, viability, as the Supreme Court intended it, has nothing to do with the fetus and everything to do with the current state of medical technology. So personhood cannot be dependent on viability. Third, everyone lacks viability somewhere. This argument would justify allowing NASA to murder an astronaut they don’t like by intentionally giving him a faulty spacesuit and then telling him to take a spacewalk. Or it would allow you to kill someone by taking him out to sea and then drowning him.

Finally, Burrows states that this kind of bill overreaches by violating the First Amendment of all those who disagree with pro-life people. This kind of argument always baffles me. The pro-life position is based on science (that human life begins biologically at fertilization) and human rights, neither of which I would think humanists would want to claim are religious. At any rate, Burrows clearly is not very interested in logical reasoning, as all of his arguments are nothing but clear cases of logical fallacies. He doesn’t even attempt to address the pro-life position that abortion is immoral because it intentionally kills an innocent human being. Unless an abortion-choice person addresses that argument, their responses will always be unpersuasive.

[1] Taber's Cyclopedic Medical Dictionary 1992 (1989), as quoted in Joseph W. Dellapenna, Dispelling the Myths of Abortion History, Carolina Academic Press, Durham, North Carolina, 2006.