Abortion, Morality and Law

Two Heartbeats

I have been delaying this post for quite some time as I have wanted desperately to be as charitable, knowledgeable and thoughtful with regard to abortion as one can possibly be. To describe it as a hotbed issue is a severe understatement. On one hand, its opponents portray the action as a literal genocide of the innocents while its proponents portray it as defense of bodily integrity (perhaps the single most obvious moral value). There can be no doubt as to why such an issue would bring great division, anger and even violence.

So what do I intend to accomplish with this piece, aside from solving the debate for everyone so we can all just get along? Well, I want to try and shed some light on how proponents and opponents, especially those at the forefront of the debate, cast the issues unnecessarily in binary, black and white terms, most of which are irrelevant to the ultimate question with regard to abortion.

First, let’s load the deck for the Pro-Life position…

  • For the sake of this discussion, we will assume that life begins at conception. We will assume both that the Biblical passages and the scientific/philosophical arguments for life beginning at conception succeed, and that the Biblical passages and scientific/passages against life beginning at conception fail.
  • For the sake of this discussion, we will assume that “personhood” also begins at conception. We will assume both that the Biblical passages and the scientific/philosophical arguments for personhood beginning at conception succeed, and that the Biblical passages and scientific/passages against personhood beginning at conception fail.
  • For the sake of this discussion, we will assume that all people know these truths (whether they admit it or not). We will assume that anyone having or performing an abortion knows they are killing a person.
  • Thus, for the sake of this discussion, we will assume that abortion is intrinsically immoral. Unless it is counterbalanced by stronger moral duties or obligations, it is morally wrong to have an abortion.

I think with these sets of assumptions, we can begin the harder task of discussing the legality of abortion and where the debate goes wrong time and time again.

The Binary Abortion Fallacy

I first noticed this fallacy while watching several videos of Scott Klusendorf, who is one of if not the most effective advocates for the Pro-Life position. He has a quite ingenious tactic for countering Pro-Choice positions called… “trot out the toddler”. Here are some examples…

  • Pro-Choice Advocate: But the fetus is just a clump of cells…
    Pro-Life Advocate: Does stage of development of the human matter? Does a toddler not have as much a right to life as a teen or adult?
  • Pro-Choice Advocate: But what if there is a high chance the fetus won’t survive?
    Pro-Life Advocate: What if a toddler has a high chance of dying in the next week, does that mean we can kill it?
  • Pro-Choice Advocate: But what if the mother is the victim of rape or incest?
    Pro-Life Advocate: If a toddler was the product of rape or incest, does that mean we can kill it?

You can probably see why it is such an effective technique. He skillfully demonstrates how the characteristics of the unborn child do not remove its right to life. Let’s list off some of those characteristics…

  • Size
  • Level of Development
  • Environment
  • Degree of Development

Scott Klusendorf rightfully points out that these characteristics do not take away the right to life of a person. But what follows from that? Does it follow from the fact that a person has a right to life that killing that person is murder and should be illegal?

This is the informal “binary abortion fallacy” which seems to pervade Pro-Life arguments. The assumption is that once we establish that a person has a right to life, we assume the debate is over and abortion should be outlawed. Either right to life is true, and abortion should be illegal, or right to life is false, and abortion should be legal.

When spelled out in this simple format, any philosophically-minded individual can plainly see that it is a false dilemma, abortion could be immoral and legal. Let’s explore this possibility.


I assume that we can all agree that killing an innocent person without good reason is murder. Given the assumptions we made above, this would peg abortion as a form of murder… unless there are “good reasons” for performing the abortion. We might refer to these as “mitigating circumstances”. What I want you to do is to keep your eye on the cumulative case, not each individual line item. Look at the strength column and think of it as a measure of “how much should a person have to go throw in order to prevent another person dying”?

Mitigating CircumstanceStrength
75% will have significant nausea for weeks or months?
25% will have pelvic floor damage ?
In 40 weeks, they will experience likely the most painful event in their life. ?
33% of women in the US will need major surgery (c-section) with months of recovery ?
Women are, on average, likely to lose 4% of salary per child
due to missed raises and other forms of discrimination
Women, in the US, have unpaid Family Medical Leave risking up to 24% of their annual pay (12/52 weeks unpaid)?
Women face an average bill of $10,000 for birth.?

So what does this all mean? Well, let’s create a new scenario similar to the famous violinist argument.

I will call this the “Cousin Eddie” argument after the bumbling, well-meaning but cognitively impaired cousin in the movie National Lampoon’s Christmas Vacation.

The Cousin Eddie Argument

Cousin Eddie isn’t all there. He is well-meaning in every way – you could say he is all heart and, well, no brain. Cousin Eddie shows up at your house one day and finds the door is slightly opened so he wanders in. You didn’t invite him in, but you didn’t do everything you could to prevent him from entering the house. Upon realizing Eddie is in the house, you immediately become sick to your stomach (not just at the thought that he is there, but Eddie is actually causing you to be sick).

You and your spouse sit down and talk over your options as you hear Eddie bumbling around the first floor. You quickly come to grips with the reality of having Cousin Eddie in your home. His bumbling mistakes are more than just doing damage to your home, they require your physical intervention. You recognize that you are probably going to have to take some time off of work given the nausea he causes. You are going to need to miss work for some doctors appointments too, especially if Eddie gets sick since he can’t afford it himself. But what is really shocking to you is this. You realize there are two options. You can let him live in your house in these conditions for 40 weeks, at which point you can kick him out. He will survive, but not without a fight. In fact, he is going to beat you so hard that it is the worst pain you have felt in your life. Now, he means no harm, he is just confused, but he is going to hurt you no matter what. There is a good chance you will have permanent scarring if not permanent health problems. Now, you can take some really heavy drugs that might make it not as painful, but you can’t really avoid the pain altogether. It is also going to cost you thousands of dollars to get him out of the house at that point too. Not to mention your recovery could be weeks and require that you take more time off of work. How will you afford this long, painful, expensive, damaging situation? But, you will know one thing. Once he is out of your house, he will probably be safe and can get help elsewhere.

But, if you kick him out to the street before then, he will most surely die. He won’t be able to fend for himself. It will be quick and without much pain, but he will die.

So here is the big question… it is not “is it moral to remove him from your home earlier than the 40 weeks”. It is, should you be compelled by the law to let him stay in your house for 40 weeks, cause all this pain, damage and expense.

This, I think, is a much harder question. I think we know what we should do… but should it be legally obligatory?

How Do We End Abortion?

Well, I think the first step should be to alleviate the mitigating circumstances. We must affirm that for most unexpectedly pregnant women in the United States are…

  • Facing thousands upon thousands of dollars in medical bills
  • Facing the most painful experience of their entire life
  • Facing months of pain, nausea and discomfort
  • Facing real public stigmatization
  • Facing a not insignificant probability of permanent physical damage and scarring
  • Facing a not insignificant probability of permanent depreciation of income
  • Facing a high probability of losing significant income in the short and mid term.

If someone accidentally and unconsciously wandered into your house causing thousands upon thousands of dollars of damage, risking violent pain, physical damage and scarring (likely the most painful of your life) and lowering your prospects for a successful career permanently, you would never be compelled by law to let that person remain in your house 40 weeks if that was required for them to survive.

So what do we do? Let me propose a few ideas…

  • It shouldn’t cost a dime to have a baby in America. There, I said it. Motherhood and childbirth should not be a financial burden. It just shouldn’t.
  • Mothers and fathers should have paid FMLA. If someone robs your house, even if you accidentally left the door open, it is a crime. But if you get pregnant and lose pay, even if it was by accident, you are expected to deal with it (and deal with the extra expenses brought on by pregnancy)
  • Adoption should be 100% free.

These are just a couple of starting points where we can remove the burdens of pregnancy. But until we address these mitigating circumstances, it is difficult to justify making abortion illegal, regardless of whether or not it is immoral.

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