One of the most significant debates separating Christians in America is the debate over how to fight against abortion in our nation. On the one hand, there are the mainstream pro-life leaders who argue that the best way to fight against abortion is to wage a war of attrition by passing incremental laws that make more and more abortions illegal until we finally eliminate all abortions entirely. On the other hand are the personhood and abolitionist leaders who argue that the incremental approach is immoral and that we must strive to pass laws which outlaw all abortions without exception. The two paths are irreconcilable. We must choose one or the other, but how do we know which one is right?
Personally, I fall firmly in the camp of the personhood and abolitionist movements. In my opinion, it is immoral for any government to follow the incremental approach to ending abortion. However, I have many friends who disagree with me on this issue, and after much discussion with them, I formulated the following four-part argument to demonstrate why I believe that incremental pro-life laws are immoral.
1. The Purpose of Government
The first thing that we need to recognize in this discussion is that every government has a positive duty to secure the right to life for every individual within its jurisdiction. Our forefathers encapsulated this concept in the Declaration of Independence when they wrote:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men..."
According to this declaration, the very purpose of government is to secure certain rights to those under its jurisdiction. Any government that fails to do so is acting against the very reason that it was founded in the first place.
Our founders declared this purpose of government to be a self-evident truth, but this does not mean that they came to this conclusion without any evidence. As John Locke explained in chapter 7 of book 4 of the Essay Concerning Human Understanding, a self-evident truth is simply a truth that is accepted by most people as being just plain common sense. Self-evident truths can still be proven, and for Christians, it is very easy to prove the self-evident truth that the government has a duty to secure the right to life for every individual within its jurisdiction. All we have to do is turn to the instruction of God's Word.
Genesis 9:6 is widely, and I think correctly, recognized as the first rule for government given in Scripture. There we read: "Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man." God's first requirement for government is that it punish anyone who takes the life of an innocent human being.
This command is repeated and expounded upon in Exodus 21:12-14 where we read:
"He that smiteth a man, so that he die, shall be surely put to death. And if a man lie not in wait, but God deliver him into his hand; then I will appoint thee a place whither he shall flee. But if a man come presumptuously upon his neighbour, to slay him with guile; thou shalt take him from mine altar, that he may die."
Again, in Leviticus 24:17, we read that "he that killeth any man shall surely be put to death." Then, in Numbers 35:30-33, God said:
"Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses: but one witness shall not testify against any person to cause him to die. Moreover ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death. And ye shall take no satisfaction for him that is fled to the city of his refuge, that he should come again to dwell in the land, until the death of the priest. So ye shall not pollute the land wherein ye are: for blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it."
And in Deuteronomy 19:11-13, we read:
"But if any man hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die, and fleeth into one of these cities: Then the elders of his city shall send and fetch him thence, and deliver him into the hand of the avenger of blood, that he may die. Thine eye shall not pity him, but thou shalt put away the guilt of innocent blood from Israel, that it may go well with thee."
In each of the first five books of the Bible, God repeated His instruction for governments to punish those who take innocent human lives. This is not optional. It is not a preference that God established just for Israel. It is a universal command which applies to every government that ever has been or ever will be established among men. Every government has a duty before God to protect human life by punishing those who take it. This is why the Declaration of Independence refers to the right to life as an unalienable right. No government has the authority to choose not to protect human life, and any law which claims such authority ceases to be a law at all (Aquinas, Summa Theologiae, I-II 93.3 ad 2) and should not be allowed to be codified as such. As Blackstone wrote in his Commentaries:
"This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other-It is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original ... Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these." (Blackstone, http://www.constitution.org/tb/tb-1102.htm).
Any government which fails to secure the right to life to all those within its jurisdiction does so in violation of God's Word.
2. Positive Duties
Now, it is vitally important to notice that I am referring to a failure to take action as being wrong. I am not just claiming that any government which kills those within its jurisdiction is wrong. What I am claiming is that any government that fails to punish those who take human life is acting immorally. This is what I meant when I described the duty to secure the right to life as a positive duty.
In ethical discussions, there are two types of duties - positive duties and negative duties. A positive duty is a duty to do good to someone; a negative duty is a duty not to do harm to someone. The difference between the two can be illustrated with the Ten Commandments. "Thou shalt not kill" is a negative duty; it tells us that we are not to do the harm of killing someone. "Honor thy father and thy mother" is a positive duty; it tells us that we are required to do something good to our parents. We fulfill negative duties by refraining from action as can be seen when we fulfill the command against killing by refraining from killing. Similarly, we fulfill positive duties by taking action as can be seen when we fulfill the command to honor our parents by certain actions. Conversely, we fail to fulfill a negative duty when we take the prohibited action, and we fail to fulfill a positive duty when we neglect to take the action that was required by the duty.
Now, the duty of the government to secure the right to life to every individual within its jurisdiction is a positive duty. It is stated as such in the Declaration of Independence, and we have seen that this duty was established by God Himself. The Declaration does not state that the government is created for the purpose of avoiding violations of the right to life. That kind of statement would establish a negative duty. Instead, the government is declared to have the positive duty of securing the right to life. Since this is a positive duty, that means that the government fails to meet this duty whenever it neglects to take the actions necessary to fulfill it.
Another positive duty of the government is the duty to secure the right to liberty to every human being within its jurisdiction. This means that any law which fails to secure this right to every individual is morally flawed. It was wrong for our law to secure the right to liberty to all white people while not securing that same right to all black people. What if our government had attempted to remedy this flaw with a law that granted liberty to every slave upon his 45th birthday? Would such a law be morally acceptable? No. It would not, for it would still be a failure of the government's positive duty to secure the right to liberty for every human being within its jurisdiction. We may perhaps argue that it would not be as serious of a moral failure, but that would not change the fact that such a law would be morally wrong. Any law which fails to meet the requirements of the positive duty of the government is morally unacceptable.
Thus, when I say that every government has a positive duty to secure the right to life for every individual within its jurisdiction, what I mean is that it is immoral for any government to fail to secure the right to life for any individual within its jurisdiction. In the context of abortion, this means that it is immoral for the government to allow abortions to take place. We all recognize that it is immoral for the Chinese government to demand abortions, but we must come to realize that our own government is just as immoral when it merely allows abortions to take place. Both governments have failed to fulfill their positive duty to secure the right to life to every child within their jurisdictions.
3. Roe v. Wade
In America, the duty of the government to secure the right to life for every individual within its jurisdiction is codified into law through the Fifth and the Fourteenth Amendments of the Constitution. The Fifth Amendment states that:
“No person shall … be deprived of life, liberty, or property, without due process of law.”
And the Fourteenth Amendment similarly declares:
“…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The language of these two amendments seems to be a fairly straightforward requirement that the governments of America fulfill their duty to secure the right to life to every individual within their jurisdictions. Unfortunately, the justices of Roe v. Wade found a way around this requirement. They simply concluded that the prenatal child is not a person and that, therefore, the government has no responsibility to secure his right to life.
It is commonly thought that this conclusion was a heinous example of judicial activism, but according to the transcript of the oral arguments, this decision was actually based on the laws passed by pro-life legislators in an attempt to prohibit abortion. During the oral arguments, the pro-life attorney from Texas made the following claim:
"It is the position of the State of Texas that upon conception we have a human baby, a person within the concept of the Constitution of the United States."
In regards to this claim, Justice Marshall asked:
"If a doctor performs a brain operation and does it improperly, he could be guilty of manslaughter, couldn’t he? Well, why couldn’t you charge him with manslaughter if he commits an abortion?"
The pro-life attorney could not answer this question, and when Justice Blackmun wrote of the personhood of the child in the majority opinion, he said that:
“There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?”
These two questions by Justice Blackmun highlight one of the two major shortcomings of the law prohibiting abortion in Texas at that time. The Texas law against abortion included two denials of the right of equal protection for prenatal children. The Supreme Court correctly recognized that it was illogical for the state of Texas to argue that the prenatal child is a person within the meaning of the Fourteenth Amendment while at the same time denying that child the same level of protection as that given to children who had been born. If the child is a person, then the state has no authority to deny him the right to have his death avenged in a court of law to the same extent as any other person. The fact that Texas did not allow the mother to be punished for seeking an abortion and the fact that they did not punish doctors performing abortions with the same penalty as that required for manslaughter or murder proved that the Texas law against abortion did not recognize the prenatal child as a person.
But that was not the only flaw in the Texas law against abortion. The Texas law also contained an exception which stated that abortions could be performed if they were deemed necessary for the life of the mother. Justice White pointed out the logical error in this exception when he asked:
"If you’re correct that the fetus is a person, then ... the state would have great trouble permitting an abortion ... in any circumstance ... to save the life of the mother or her health or anything else?"
Justice Marshall recognized the same error and asked:
"Could the State of Texas say that if it’s for the benefit of the health of the wife, they can kill the husband? ... If it comes to a situation for the benefit and the health of the wife that the husband has to die, could they kill him?”
Justice Rehnquist echoed the confusion of the previous judges and asked:
"Doesn’t the fact that so many of the state abortion statutes do provide for exceptional situations in which abortion may be performed ... suggest that the absolute proposition that a fetus from the time of conception is a person ... is at least against the weight of historical legal approach to the question?"
Justice Blackmun highlighted this flaw directly in his majority opinion when he wrote:
“When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?”
Justice Blackmun correctly recognized that if the prenatal child is a person, then the state has no right to pass a law allowing him to be killed without first having an opportunity to face his antagonists in a trial by a jury of his peers. To say that the child may be killed whenever his continued existence poses a risk to the life of his mother is the same as saying that the prenatal child is not a person. If he were a person, then his mother would be required to prosecute him in a court of law and prove that he had committed an act worthy of death before he could be killed. The fact that Texas did not require the mother to take her child to court before killing him was enough to prove to the Supreme Court that Texas did not really recognize the prenatal child as a person under the protection of the Fourteenth Amendment.
It was only after determining that the Texas law against abortion failed to recognize the prenatal child as a person that the Supreme Court turned to other considerations and determined that the woman had a constitutional right to obtain an abortion. When the attorney from Texas made the claim that the prenatal child is a person, Justice Stewart responded by saying: “Of course, if you’re right about that, you can sit down. You’ve won your case.” Unfortunately, the attorney failed to convince the Court that Texas law recognized the prenatal child as a person. The Court decided that Texas did not recognize the prenatal child as a person because their law prohibiting abortion failed to recognize the child’s rights of due process and equal protection. Any law which fails to recognize these two rights is a denial of the personhood of the prenatal child. Thus, the entire debacle of legalized abortion in America rests on the failure of a pro-life law to recognize the prenatal child’s rights to due process and equal protection.
4. Pro-Life Laws
One of the most astounding and certainly one of the saddest ironies in all history is the fact that the vast majority of pro-life “victories” over the past forty years have actually strengthened the Court’s ruling in Roe v. Wade. The Roe opinion rests solely on the failure of the government of Texas to fulfill its duty to secure the right to life for prenatal children. The Texas government failed to do this by denying those children the rights of due process and equal protection. And yet, nearly every pro-life law passed since Roe v. Wade has included the same flaws that led to the Court’s rejection of the claim that Texas recognized the prenatal child as a person. Most of the pro-life laws of the past four decades have denied prenatal children the rights of due process and equal protection.
Let me demonstrate this by highlighting these flaws in the pain capable legislation that is being strongly promoted at both the federal and the state level. Pain capable legislation refers to laws which ban abortions after twenty weeks of gestation because prenatal children are able to feel and respond to pain by that age. Pain capable laws have been successively passed in several states, and a national version of this law has been passed in one house of congress. This is touted as a great pro-life victory, but every version of pain capable legislation that I have looked at has contained the same flaws which were present in the Texas law that led to the Roe opinion.
For example, under most pain capable laws, the mother is not punished in any way if she obtains an abortion in violation of the law. Consider the federal pain capable bill which recently passed the House of Representatives. This bill states that:
“A woman upon whom an abortion in violation of subsection (a) is performed or attempted may not be prosecuted under, or for a conspiracy to violate, subsection (a), or for an offense under section 2, 3, or 4 of this title based on such a violation.” (emphasis mine)
And Alabama’s pain capable law declares that:
“No penalty shall be assessed against the woman upon whom the abortion is performed or induced or attempted to be performed or induced.” (emphasis mine)
In those few cases in which the mother is punished for violating the law, the punishment is always far less severe than the punishment would be if the mother arranged to have one of her born children killed. For example, the South Carolina pain capable law states that:
“Any person who intentionally or knowingly fails to conform to any requirement in Section 44-41-440 is guilty of a misdemeanor.” (emphasis mine)
Additionally, the punishment for doctors who violate these laws by killing a prenatal child is always much less severe than the punishment for killing a child who has been born. In the laws of every state, and in federal law as well, the killing of a born child is a felony of the highest degree, usually classified as a class A felony and always receiving a punishment of either lifelong imprisonment or death. However, in the federal pain capable bill, we read that:
“Whoever violates subsection (a) shall be fined under this title or imprisoned for not more than 5 years, or both.”
This equates to a class D felony – three levels below the classification of killing a born child and the lowest class of felony in federal law. Similarly, Alabama’s law states of doctors who violate the twenty week ban that:
“Any person who intentionally, knowingly, or recklessly performs or induces or attempts to perform or induce an abortion in violation of this chapter is guilty of a Class C felony.”
And South Carolina’s law is even more egregious when it proclaims that:
“Failure by any physician to conform to any requirement of this section constitutes 'unprofessional conduct'”
This discrepancy between the punishment for killing prenatal children and the punishment for killing born children is a denial of the prenatal child’s right to equal protection, and this was exactly what the Roe Court identified as a reason for rejecting the claim that the prenatal child is a person.
In addition to denying the child’s right to equal protection, pain capable legislation also incorporates a denial of the child’s right to due process. Remember that, in the Roe opinion, Justice Blackmun identified the life-of-the-mother exception as a denial of due process for the prenatal child. This same exception is present in every version of pain capable legislation. The Alabama statute, for instance, reads:
“No person shall perform or induce or attempt to perform or induce an abortion … unless, in reasonable medical judgment, the woman has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function.”
As Justice Blackmun pointed out, if the prenatal child is a person under the protection of the Fourteenth Amendment, then a potential risk to the life or health of the mother cannot be the sole determinant in whether the child can be killed.
When we compare the provisions of laws like pain capable legislation with the Courts opinion in Roe, it becomes painfully obvious that these pro-life laws are plagued by the same inconsistencies which produced the Roe opinion in the first place. Pro-life leaders often point to these laws as glorious examples of how their efforts are saving the lives of thousands of children every year, but is it right to claim that we are saving lives when we pass laws which strengthen the very foundation of legalized abortion in America? When we recall that the government has a positive duty to secure the right to life for every person within its jurisdiction, then the answer to that question becomes clear. Any law which fails to fulfill this duty is a violation of God’s Word and a deviation from the purpose of government as outlined in the Declaration of Independence.
Famed pro-life leader, Scott Klusendorf, recently wrote a column for The Gospel Coalition in which he accused those who oppose incremental legislation of begging the question since "the debate over incrementalism is precisely about whether compromising legislatively equals compromising morally." I agree with Scott regarding the nature of the debate. The question that we must ask is whether incremental laws are actually immoral and not just legislative compromises. That question is precisely what I have attempted to answer in this article, and I would challenge Scott and others in his camp to make a similar argument in favor of their position.
Scott likes to claim that people like me have no logical arguments for our position and that we only "punt to the Scriptures" because we are not intellectually capable of defending our views. So let me turn the tables here and challenge Scott to meet me man-to-man in a battle of wits. Leave your silly, heart-tugging anecdotes behind and send me an argument proving that the incremental approach which you endorse is morally valid. You ended your article by saying, "If abolitionists want to join that conversation in good faith, they are welcome." I accept your challenge. Are you willing to accept mine?
Bill Fortenberry is a Christian philosopher and historian in Birmingham, AL. Bill's work has been cited in several legal journals, and he has appeared as a guest on shows including The Dr. Gina Show, The Michael Hart Show, and Real Science Radio.
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