Are Anti-Abortion Arguments Predicated on a “Fetal Personhood Fallacy”?

by
October 1, 2015

Abortion is again at the center of the American public’s attention, and the issue remains as contentious as ever. The release of video recordings of Planned Parenthood employees discussing the organization’s practices and procedures in procuring, selling, and conveying fetal tissue harvested from aborted babies has spurred renewed discussion regarding abortion, fetal tissue research, and public and private funding that enables Planned Parenthood to lead an effort responsible for the deaths of over 1 million babies in the United States every year. With public attention and media attention focused on this issue, presidential candidates are being asked to address (and some are addressing) these videos and the funding of Planned Parenthood. Likewise, the defenders of abortion are attempting to respond to both the public revelation of Planned Parenthood’s practices and the arguments made by presidential candidates.

Professor David Orentlicher of Indiana University’s Robert H. McKinney School of Law has recently offered a response.[1] In a blog post entitled “Abortion and the Fetal Personhood Fallacy,” he argued that “Marco Rubio, Mike Huckabee, and other politicians continue to assert a common fallacy about abortion—because human life begins at conception, fetuses are persons, and abortion must be prohibited. Indeed, Huckabee and Rubio claim that the U.S. Constitution requires such a result.”[2]  Orentlicher continued: the “flaw in [their] logic was pointed out more than 40 years ago” when Professor Judith Jarvis Thomson “correctly observed that even if we assume that personhood begins at conception, it does not follow that abortion must be banned before the fetus is viable. Indeed, as she wrote, a ban on abortion before fetal viability would be inconsistent with basic principles of law.”[3]

Orentlicher thus charged that the anti-abortion argument of Rubio and Huckabee (and presumably a large number of pro-life Americans) rests on a logical fallacy regarding the personhood of fetuses. His charge warrants further consideration.

Orentlicher’s Inaccurate Restatement of the Rubio/Huckabee Argument

Orentlicher framed the Rubio/Huckabee argument is the following form:

Premise: Human life begins at conception.

Therefore: Fetuses are persons.

And therefore: Abortion must be prohibited under the United States Constitution.

If this were an accurate restatement of the Rubio/Huckabee argument, Orentlicher would be correct that it is deficient in form and that its logic is flawed. He did not, however, accurately state the Rubio/Huckabee argument.

On August 6, 2015, during the GOP debate, Senator Rubio provided the following response to the question whether he approves of a rape and incest exception to a ban on abortion:

I have advocated . . . that we pass law in this country that says all human life at every stage of its development is worthy of protection.

In fact, I think that law already exists. It is called the Constitution of the United States.

. . . I believe that every single human being is entitled to the protection of our laws, whether they can vote or not. Whether they can speak or not. Whether they can hire a lawyer or not. Whether they have a birth certificate or not. And I think future generations will look back at this history of our country and call us barbarians for murdering millions of babies who[m] we never gave . . . a chance to live.

On August 7, during an interview on CNN about his views on a rape and incest exception, he added:

I think both of those instances are horrifying, and fortunately, they are extremely rare. It happens. And anytime it happens, it’s horrifying and it’s a tragedy. But I personally and honestly and deeply believe that all human life is worthy of protection irrespective of the circumstances, in which that human life was created. I personally believe that you do not correct one tragedy with a second tragedy. . . . But by the same token, if I have to weigh the two equities here, I am always going to err on the side of life. . . .

The idea that a human life is worthy of [the] protection [of our laws] is a timeless principle. . . .

Science has—absolutely it has [decided that human life begins at conception]. . . . Science has decided that when a—science has concluded—absolutely it has. What else can it be? It cannot turn into an animal. It can’t turn into a donkey. That’s the law. The only thing that that can become is a human being. . . . Every human—human life. It can’t be anything else. . . .

Every single one of us started at the same stage. It can’t become anything other than a human being. And it is neither up to you nor [me] nor any politicians to decide that we’re going to allow this life to move forward and this life not to. . . . Do you want to really have a government in the [position] of deciding what a human life is and what’s not a human life. . . .

. . . [My faith] does influence me to believe that all human life is worthy of protection, even human life that doesn’t have a birth certificate, even human life that maybe that some scientist wants to have a debate about. But I believe the science is clear that when there is conception, that is a human life in the early stages of its total development and that is worthy of the protection of our laws. . . .

At the same GOP debate, Governor Huckabee stated:

I think the next president ought to invoke the Fifth and Fourteenth Amendments to the Constitution now that we clearly know that that baby inside the mother’s womb is a person at the moment of conception. The reason we know that it is is because of the DNA schedule that we now have clear scientific evidence on. And this notion that we just continue to ignore the personhood of the individual is a violation of that unborn child’s Fifth and Fourteenth Amendment rights for due process and equal protection under the law. It’s time that we recognize the Supreme Court is not the supreme being, and we change the policy to be pro-life and protect children instead of rip up their body parts and sell them like they’re parts to a Buick.

Then, on August 8, at a news conference following his speech at the RedState Gathering, Huckabee emphasized the need to “start protecting those people who are unborn” and to “make it a federal policy that you protect these lives.” (See David Weigel, “GOP Candidates Expand on Conservative Views at RedState Gathering,” Washington Post)

The Actual Rubio/Huckabee Argument

Because Orentlicher failed to state accurately the reasoning of Rubio and Huckabee, his analysis of their argument is fundamentally flawed. A careful review of the statements of Rubio and Huckabee excerpted above reveals at least three related arguments.[4] Argument #1 is:

Premise: All human life (all human lives) is worthy of legal protection.

Premise: A fetus (an unborn baby) is human life.

Therefore: A fetus (an unborn baby) is worthy of legal protection.

Argument #2 is:

Premise: A living human being is a person.

Premise: A fetus is a living human being.

Therefore: A fetus is a person.

Argument #3 is:

Premise: In the United States, every person is protected by the Fifth and Fourteenth Amendments.

Premise: A fetus is a person.

Therefore: In the United States, a fetus is protected by the Fifth and Fourteenth Amendments.

The actual Rubio/Huckabee argument deserves consideration by those who defend abortion and who suggest that the opponents of abortion rely on fallacious arguments.

Orentlicher’s Point and Some of Its Shortcomings

Orentlicher’s reference to Thomson’s article “A Defense of Abortion” helps to reveal the larger point he undertook to make in his blog post. In her article, Thomson accepted for the sake of argument that a fetus is a person from the moment of conception and has a right to life, and she offered an analogy. In this analogy, she posited that a person wakes up to discover that she was kidnapped and that the circulatory system of a famous unconscious violinist with a fatal kidney ailment has been plugged into the kidnapped person’s circulatory system such that withdrawing the assistance would kill the violinist. She also offered a second analogy that presented unborn babies as people-seeds drifting in the air like pollen, landing, sprouting, and taking root.

In his blog post, Orentlicher drew on the violinist analogy and argued that abortion “can be viewed as a withdrawal of assistance,” rather than a “killing,”[5] and that the pregnant woman “seeking an abortion is saying that she no longer wants to give of her body to sustain the life of her fetus.” The law, he urged, does not require “some people to give of their bodies to sustain the lives of other persons.” Consequently, requiring pregnant women to continue their pregnancies until delivery would single them out “for a legal responsibility that no one else must assume,” and the Equal Protection Clause “protects people from being treated differently than other people.”[6] His argument was thus that, even if fetuses are persons, pregnant mothers (assisted by health care providers) should be able to decide lawfully to “kill” or withdraw their assistance and that a ban on abortion before viability would violate basic legal principles by subjecting pregnant women to unequal treatment. For Orentlicher, the analysis changes at viability because fetuses can then survive on their own without their mothers’ assistance.

(1)  No Logical Fallacy Established

Orentlicher’s point did not establish a fetal personhood fallacy or a logical fallacy in the actual Rubio/Huckabee argument.[7] As shown above, Orentlicher misstated the Rubio/Huckabee argument, which undercuts his attempt to attack the logical form of their argument. Additionally, his beliefs or viewpoint may lead him to disagree with one or more of the premises in the actual Rubio/Huckabee argument, but disagreeing with a premise does not, in and of itself, demonstrate that a premise is false.

(2) Problems Related to Equal Protection

Orentlicher’s argument concedes fetal personhood for the sake of argument, attempts to create a dilemma or conflict between pregnant mothers and their unborn children, and then employs the Equal Protection Clause to urge that basic principles of law cannot allow or require this dilemma or conflict to be resolved by banning abortions. However, pointing to an equal protection issue does not, in and of itself, establish that a premise in the actual Rubio/Huckabee argument is false—it may just be that the issue needs to be addressed.[8]

If personhood is conceded (at least for the sake of argument as Thomson and Orentlicher do, but also because science has demonstrated that new living human beings begin at conception), defenders of abortion face their own equal protection problem. Their problem is that no other group of persons or class of living human beings is subjected to the treatment unborn babies are subjected to in abortion. Stated differently, among living human beings in the United States, only unborn children are subjected to legally-sanctioned tearing, cutting, dismembering, and poisoning. Thus, in the case of abortion, the youngest members of the human community are treated differently than other members, and the current legal regime is instrumental in subjecting them (1 million of them per year in the United States, and over 60 million over the last four and a half decades) to this unequal treatment.

(3) Problems with Thomson’s Argument and Analogy

The argument that Orentlicher pointed to in an attempt to show the “flaw in the Rubio/Huckabee logic”—Thomson’s argument and the violinist analogy she posited to support it—does not apply in most abortion cases. Thomson’s violinist analogy applies (at most) to a small percentage of the total number of abortions in which the pregnancies resulted from rape or incest. These special cases are distinct from the vast majority of cases in which sexual relations are engaged in knowingly and voluntarily and in which duties spring from that knowing and voluntary participation in sexual acts that have the potential of resulting in conception. Thus, with most pregnancies, the pregnant mother is not in a situation analogous to that of the sleeping kidnapped person into whom the violinist is “plugged.” Furthermore, the Thomson/Orentlicher argument is intensely individualistic and shows little regard for the web of relationships that comprise human community. This web includes mothers and their babies, other children and grandparents, spouses and sexual partners, extended family and neighbors.

(4) Problems with Orentlicher’s Analogy of Abortions and “Withdrawals of Assistance”

Orentlicher’s analogizing of abortions to “withdrawals of assistance” poses its own problems. For instance, setting to the side some of the “artificial” techniques used in assisted reproduction, pregnancy results from natural processes, and it is itself a natural process. But, the term “withdrawal of assistance” typically refers to the withdrawal of “artificial” assistance supplied by machines and other technology up to which the patient is hooked (recall that Thomson posited that the violinist was “plugged into” the other person), and thus it is “artificial” life support that is withdrawn in end-of-life situations.[9]

Additionally, analogizing abortion to the withdrawal of assistance likens pregnant women to machines, and this rhetorical move seemingly strips pregnant women of human qualities and human agency. Furthermore, the methods and procedures used in abortions (e.g., tearing babies into small pieces that can be sucked through a tube, cutting and dismembering them, and poisoning them) are not analogous to the methods and procedures employed when the assistance of life-supporting technology is provided and later withdrawn. And finally, when decisions are made regarding the withdrawal of assistance in end-of-life situations, the consent of the person from whom assistance is withdrawn is typically a matter of consequence to the law and courts.

Conclusion

In his blog post, Orentlicher charged Rubio and Huckabee with making an argument that was logically flawed, but Orentlicher did not accurately state the Rubio/Huckabee argument. Furthermore, he did not demonstrate a logical fallacy in their actual argument. At most, he highlighted an equal protection issue to be addressed. Furthermore, the Thomson/Orentlicher argument has some substantial problems of its own, as discussed above.

But, beyond logic, premises, and fallacies, the words used in the Rubio/Huckabee argument and the Thomson/Orentlicher argument deserve further reflection. In discourse on abortion, the defenders of abortion play word games and use euphemisms in an attempt to make harsh realities more palatable, to obscure the nature of the unborn, and to conceal what an abortion is and does. For instance, Orentlicher suggested thinking of abortions as “withdrawals of assistance,” instead of “killings.” Thomson and Orentlicher consistently used the term “fetus” when referring to the unborn—not “baby,” “child,” “human being,” “human life,” or “person.” Thomson analogized fetuses to wind-distributed people-seeds, and she wrote: “the fetus is not a person from the moment of conception. A newly fertilized ovum, a newly implanted clump of cells, is no more a person than an acorn is an oak tree.”[10]

By contrast, Rubio and Huckabee refer to unborn babies as “human lives” and “human beings,” as “persons” and “people,” and they manifest a belief that all human life (including the lives of unborn children) is worthy of legal protection. The language of Rubio and Huckabee is language of inclusion—they embrace the equal dignity of all persons (by which they mean all human beings). They advocate keeping membership in the human community open for all and affording the protection of the law to all, and they oppose subjecting the youngest, most vulnerable members of the human community to different treatment.

The language used in arguments regarding abortion and unborn children matters. Terminology signals the proponent’s vision of the human community, and it indicates whether the proponent has an inclusive view that embraces the equal dignity of all living human beings and welcomes all into that community. It also bears noting that the exclusion of some human beings from membership in the human community has a terrible legacy, and select examples of modern dehumanization involving Native Americans (“Indians [are] . . . inferior to the Anglo-Saxon” and “An Indian is not a person within the meaning of the Constitution”), African-Americans (“A negro of the African race was regarded as an article of property” and “In the eyes of the law . . . the slave is not a person”), European Jews (“Jews are undoubtedly a race, but not human” and “The Reichsgericht [the supreme court of the German Reich from 1879 to 1945] itself refused to recognize Jews . . . as ‘persons’ in the legal sense”), and women (“Women are domestic animals” and “The statutory word ‘person’ did not in these circumstances include women”) help us to appreciate the profound implications of such exclusion.[11]

Those who pay close attention to the actual Rubio/Huckabee argument will see that they are offering an inclusive vision of the human community that welcomes all living human beings, including unborn babies and their mothers, and extends to them the equal protection of the laws. This is one point in their argument that Orentlicher seemed to miss.


[1] In addition to his law faculty position, Professor Orentlicher is co-director of Indiana University’s William S. and Christine L. Hall Center for Law and Health and teaches as an adjunct professor at Indiana University’s School of Medicine. The author of this essay earned a graduate degree in health law, policy, and bioethics from the law school and was a student of Professor Orentlicher.

[2] Unfortunately, Orentlicher did not cite or quote the Rubio and Huckabee statements he was referencing. But, because his post was published on August 11, 2015, it is likely that he was responding to statements made by GOP candidates during their August 6, 2015 debate and in the days following the debate.

[3] See Judith Jarvis Thomson, In Defense of Abortion, Philosophy & Public Affairs 47-66 (Autumn 1971).

[4] The Rubio/Huckabee argument includes additional arguments, such as the argument regarding what science has shown. These additional arguments are not addressed here. On the argument that science has shown that a new human being begins at conception, see Patrick Lee, Christopher O. Tollefsen, & Robert P. George, Marco Rubio Is Right: The Life of a New Human Being Begins at Conception, http://www.thepublicdiscourse.com/2015/08/15520/, and Philip Hawley, Jr., On Abortion, Medical Science Is Still Waiting to Be Heard, http://www.thepublicdiscourse.com/2015/09/15643/.

[5] In her article, Thomson used the word “kill.”

[6] The Equal Protection Clause is found in the Fourteenth Amendment to the United States Constitution, but by “reverse incorporation” the United States Supreme Court has held that equal protection principles apply to the federal government through the Due Process Clause of the Fifth Amendment.

[7] As noted above, “fetal personhood fallacy” is the term Orentlicher used in the title of his post, and he used the terms “logic” and “fallacy” in the first two paragraphs of his post.

[8] Other legal principles would also be relevant to the question of a pregnant mother’s responsibility or duty to her unborn child, such as a duty to rescue or help when that person has a special relationship or has created the hazardous situation that causes the peril.

[9] The contrasting of natural processes with artificial techniques here is not intended to suggest moral approval or disapproval of one or the other. Rather, this contrast is highlighted to show a distinction that undercuts Orentlicher’s analogy of abortions and withdrawals of assistance.

[10] Thomson, supra, at 48. Nevertheless, she seemed to recognize that the argument that a fetus is not a person faces an uphill battle and may be a losing argument. She wrote:

I am inclined to agree . . . that the prospects for “drawing a line” in the development of the fetus look dim. I am inclined to think also that we shall probably have to agree that the fetus has already become a human person well before birth. Indeed, it comes as a surprise when one first learns how early in its life it begins to acquire human characteristics. By the tenth week, for example, it already has a face, arms and legs, fingers and toes; it has internal organs, and brain activity is detectable.

Id. at 47-48.

With the release of the Center for Medical Progress videos, it has become apparent that Planned Parenthood does not actually see unborn babies as newly implanted clumps of cells. Rather, aborted babies are a ready supply of human organs, tissues, and parts that Planned Parenthood can sell.

[11] See William Brennan, Dehumanizing the Vulnerable: When Word Games Take Lives 6-7 (1995) (charting “the semantics of oppression” and citing sources for these quotations).


Michael J. DeBoer
Michael J. DeBoer is an Associate Professor of Law at Faulkner University, Thomas Goode Jones School of Law. He holds degrees from Indiana University, Valparaiso University, Southeastern Baptist Theological Seminary, and Liberty University.