Nobis and Dudley Miss the Mark Completely on Defending Abortion

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  • April 14, 2021

It’s been a while since I’ve published an article to the blog, and there are a couple of reasons for it. Number one, many more people tend to listen to podcasts than read articles (especially since podcasts can be listened to on-the-go), so I’ve been concentrating more on our podcast, Pro-Life Thinking. A second reason is because it’s very rare that anything interesting is published in the popular blogosphere which is worth responding to. There are only so many times I can call out pro-abortion bloggers for fallaciously attacking a pro-life advocate’s character instead of his argument or to call out their assumptions without proving their case. Once in a while something catches my attention and I think it deserves a response.

Salon has published an article written by Nathan Nobis and Jonathan Dudley called “Why the case against abortion is weak, ethically speaking” (which you can read here). But as one of my pro-life philosopher colleagues said about it, it contains many, many leaps in logic. In fact, their tagline reads: “Many medical procedures are ethically similar to abortion — without the outcry. Why?” This tagline makes it seem like they’re just not very knowledgeable about the literature (I don’t know much about Jonathan Dudley, but I know that Nathan Nobis has engaged with the work of at least Frank Beckwith on the issue). This is just a ridiculous question that ignores some very serious nuances of the discussion.

Nobis and Dudley (hereafter ND) start off by complaining about the recent spate of pro-life laws being proposed. That’s as it should be, as abortion, itself, is unconstitutional and needs to be overridden by the court (for an excellent explanation of why abortion is unconstitutional, read this article by legal scholar John Finnis). However, their beef in this article is not with the legal fight but with the pro-choice movement’s stark avoidance of any discussions of ethics. While I do agree that the pro-choice movement caring more about the ethical discussion would certainly help elevate the discussion and give pro-life writers who care about intellectual engagement more to write about, the case isn’t as cut-and-dried for the pro-choice position as ND believe it to be. In fact, the best philosophical arguments rest squarely on the pro-life side of the debate.

ND assert the arguments attempting to establish abortion is murder are demonstrably weak. However, there are no arguments forthcoming about why these arguments are weak. Instead, they look at two situations they consider similar and argue since there is no pro-life outcry over these situations, there should be no outcry against abortion, either. But if the pro-life arguments that abortion is weak really are “demonstrably weak”, as ND claim, they should be able to pinpoint exactly what claims pro-life advocates make and show why they are weak. At best, if you point to two similar situations and show there is no outcry, you can say pro-life people are inconsistent. It says nothing about whether or not their arguments against abortion are sound.

The first of these two allegedly “less controversial” topics is organ donation. The second is regarding anencephalic fetuses (anencephaly is a severe defect in which the baby is born without parts of the brain and skull. While many anencephalic fetuses die during gestation, many also do survive to birth. Those who survive to birth don’t typically survive more than a few days after birth.

For this next section, I think it will be more helpful to quote each of ND’s paragraphs verbatim to show exactly where they go wrong.

First, in every U.S. state and most countries, if a person elects to be an organ donor, their organs can be removed for transplant when that person suffers complete brain death — even if their body is still alive. Organ harvesting involves cutting living human beings open and their organs being removed one-by-one until, at last, the heart is detached and the human being dies, having been directly killed by the procedure.

This is hardly an uncontroversial point, though. While most pro-life people do tend to support organ donation, a large number of them don’t support organ donation if it will kill the donor. If a person is merely “brain dead”, she has irreversibly lost all of her brain function, higher and lower — but the person is still alive. Calling it “brain death” is a misnomer, since “brain death” is a state of dying, not death. Because of this, many bioethicists are even skeptical of the concept of “brain death”, itself (e.g. David Albert Jones in his 2001 book Organ Transplants says a patient’s body may still be alive while brain dead, and Leon Kass in his 1985 book Toward a More Natural Science says “the primary stimulus to seek a new definition of death was the need for organs for transplantation” (both of these quoted in Christian Bioethics: A Guide for the Perplexed by Agneta Sutton, p. 167), and this point by Kass was also stated by neurobiologist Maureen Condic in her paper “Life: Defining the Beginning by the End” for First Things, which you can read here). So the concept of “brain death” is still a controversial one, since the person’s body is still alive and able to be kept alive through life support.

That being said, no matter how one lands on the question of organ donation, there are differences here that may justify organ donation while not justifying abortion. For example, in organ donation, the organ donor consents to having his organs harvested and given to someone else. The fetus does not consent to having his life taken to benefit his mother. Another important difference is that when someone has irreversibly lost their brain function, their life is essentially over. They are dying and cannot be restored to health. If the person could be restored to health (e.g. if he is in a reversible coma), then surely it would be unethical to remove his heart, killing him, even if he has consented to being an organ donor. In contrast, a fetus is at the very beginning of his life. Comparing organ donation, a procedure to take someone’s organs who can no longer use them to give to people who need replacements, with abortion, a procedure meant to kill a human being to make the mother’s life easier in some way, is fallacious.

What this shows is that most people recognize that it’s not always wrong to kill human beings. This is true even when those human beings are considered “innocent,” as human beings used for organ donation are often categorized. This is a first step in undercutting the pro-life argument.

Very few ever argue it’s always wrong to kill human beings. Only extreme pacifists believe this. The pro-life argument is not that it’s always wrong to kill human beings, it’s that it is always wrong to intentionally kill innocent human beings. I have explained this personally to Nobis on a couple of occasions, and I know pro-life sociologist Steve Jacobs has explained this to him, too. But he seems to insist on continually misrepresenting the pro-life position in this way, as he did in his book with Kristina Grob. And here ND are also misusing the term “innocent”, in that they are not using it in the way pro-life people use it. When a pro-life person says it’s wrong to intentionally kill an innocent human being, they mean “innocent” in the sense that they have committed no crime deserving of death. It is permissible to put a murderer to death but it is impermissible to put a fetus to death, who has committed no capital crime; indeed, who is much too young to even understand right from wrong.

So this is not the first step in undercutting the pro-life argument, and anyone who follows it is, frankly, taking bad advice.

A second relevant set of cases involves anencephalic infants, or babies born with severely undeveloped brains. These babies usually do not live long, and the widely accepted medical practice is to let these infants die, providing palliative care only, even though they could be kept alive by a machine. This ends their lives, but it is not wrong.

Here is ND’s appeal to the case of anencephalic infants, and they, again, misrepresent the situation. Yes, the accepted medical practice is to provide palliative care to anencephalic infants and allow nature to take its course. This is the same palliative care we’d give any terminally ill patient at the end of that person’s life (assuming that person has rejected euthanasia as an option, which pro-life people would also say is the unethical taking of a human life). So their life does end, but their lives are not ended by an action done by those providing palliative care. ND are simply twisting language to make it seem like this is similar to abortion — they’re trying to jam a square peg into a round hole. They are failing to understand the difference between killing someone (an act of murder) and allowing someone to die (which can be unethical or it can be ethical, depending on the situation). Certainly there is no ethical wrong in allowing nature to take its course if you have no way of saving that person or restoring that person to health. Allowing a person to die whom you can’t save is not the same thing as killing someone who is healthy to benefit someone else who wants that person dead. This is just an absurd comparison.

The ethical insight gained from these two common medical practices is that not all human beings have a right to life that trumps all other considerations: it is not always wrong to end the lives of even innocent human beings, if they lack what would make ending their lives wrong.

Let me just quickly recap. Abortion is not like organ donation because in organ donation the person consents to it, is dying, cannot be restored to health, and so no longer can use his organs. Abortion kills a perfectly healthy (in most cases) individual because he is in the way of something the mother wants (usually, to not be pregnant). Furthermore, abortion is not like anencephaly because allowing someone to die that you can’t save is not the same thing as killing a perfectly healthy individual (in most cases) because they are in the way of something another person wants (again, usually, to not be pregnant). ND are using two cases that are not like abortion and trying to draw ethical insight from them. But these cases are useless in trying to tease out some ethical rule for treating human fetuses.

the human beings in question do not have brains capable of supporting consciousness, awareness, or feelings. Since these common medical practices concerning organ donation and anencephaly are morally permissible, so are most abortions.

This is actually very misleading. The people in question do have brains capable of supporting consciousness, awareness, or feelings. In the case of the “brain dead” individual, the brain has irreversibly lost its ability to engage in these functions, but it is certainly a brain capable of supporting it (just like your eyes are still capable of sight even if you end up going blind; this is evident in the fact that in many cases, such as cornea transplants, we can actually restore sight that has been lost — the main problem is it is currently not medically possible to restore brain function to one who has lost it or was unable to develop it properly). And in the case of anencephaly, their brains are also capable of supporting these functions, but due to a severe birth defect their capacity for these functions has been blocked due to the birth defect. It is not medically possible, at least currently, to help people in these situations, but they are still human beings and thus are still capable of performing human functions, even if these functions have been blocked due to illness, injury, or something else.

I could go deeper into the philosophy of why these people still have these functions, but it’s not necessary. What is enough is simply to show that ND are ignoring the fact of human development. It’s true that the “brain dead” individual has irreversibly lost his brain function and the anencephalic infant was never able to fully develop his capacities to flourish as humans should. But these are not similar situations to the normally healthy fetus, in which the fetus is at a very early stage in his develop and certainly has a brain capable of supporting consciousness, awareness, or feelings. We know his brain is capable of supporting these things because he will grow up to engage in these activities. If his brain was incapable of supporting these functions, he would never grow up to perform them, much like a hedgehog will never grow up to engage in rational thought (Sonic, notwithstanding). It is not a tragedy when a hedgehog fails to grow up to be a rational individual — it is a tragedy when a human being fails to do so, which is why anencephaly is considered a birth defect. It is not how the individual is supposed to be.

After this section, ND try to anticipate objections to their arguments but their attempts at responding goes off the rails.

ND does correctly say pro-life advocates will argue this conclusion doesn’t follow, given differences among the cases. But the responses they anticipate are not what I would think the most common responses would be.

  1. Pro-life intellectuals argue that organ donors are not really “human beings”. ND point to a talk by Peter Singer, Alan Shewmon, and Patrick Lee, moderated by Robert P. George, as defense of this point. Singer, of course, is pro-abortion and pro-infanticide. Lee and George are pro-life philosophers, and I’m not familiar with the work of Alan Shewmon, though I have seen him cited in other works. I’m a bit skeptical that Lee and George hold this view (that “brain dead” individuals are “not really ‘human beings'”), but it’s not necessary for me to address this position. This is not a position that I hold, and it’s not a position held by many other pro-life intellectuals. ND are taking one potential response and acting like it’s the only response given by pro-life advocates. I am a hylemorphist, in the vein of David Oderberg and Ed Feser. I believe that as long as the organism is alive, it is a human being, a person worthy of rights and respect. So I agree with ND, that organ donors are human beings. They are living human organisms with heartbeats. I agree. But no, the pro-life position does not imply organ donation practices are wrong. It does imply that organ donations which kill the individual is wrong because it’s always wrong to intentionally kill an innocent human being. But donating other organs, such as kidneys, would not be wrong, so long as the person is not killed in donating the organ. So ND’s first point can simply be rejected because it’s not held by many pro-life intellectuals and they draw a faulty conclusion from what they think is implied by the pro-life position. This first point fails to make their case.
  2. Pro-life advocates recognize anencephalic infants as human beings and argue it would be wrong to harvest their organs. But either both brain dead humans and brainless infants are human beings or neither are. Again, another point I agree with. Both of them are human beings and it is wrong to act in such a way as to intentionally kill them. Plus, anencephalic infant organ donation has a further wrinkle in that anencephalic infants cannot consent to donating their organs. One might argue that a parent can consent to donate her child’s organs to children in need, and this is true in certain cases. If a child is dying and cannot be restored to health, it may be permissible for a mother to consent to donating the child’s organs. But if a mother takes her own child’s life, clearly this is not a licit situation in which a mother can consent to donating her child’s organs. Again, this point can safely be rejected because it’s not a point argued by many (perhaps even most) pro-life intellectuals. And in my case, I hold that both of these human beings are human beings and I hold my views consistently regarding how to treat humans at the beginning and at the end of life.
  3. Organ donation and anencephalic newborns involve human beings who have lost their potential for valuable futures; yet fetuses have lives, or potential lives, before them and so have rights to those lives. And they are innocent. Here ND almost raises relevant objection, but the problem is they’re only responding to one possible pro-life rejoinder, and one that’s not even the strongest that could be made. Don Marquis does, of course, make an argument against abortion from the fetus’ having a valuable future, and that’s an important argument in the literature. But talking about brain dead people and anencephalic infants is not about their loss of potential for a valuable future — it’s about their loss of their capacities. It’s not one’s valuable future that makes one a person, the fetus’ having a valuable future is just one more reason why it’s wrong to kill them. What makes one a person is his nature which grounds his ultimate capacities for things like rationality, consciousness, self-awareness, etc.

    3a. Fetuses are not “innocent” because it implies the potential for guilt, and that’s only true of persons. Here ND actually beg the question against fetuses being persons. They have failed to establish this point so they can’t simply assume it. Plus, when pro-life people speak of fetuses being innocent, it’s in the context of not having done anything worthy of being executed for, like committing a murder. In fact, they are human beings at a very early stage in development before they are rationally able to understand right from wrong. Additionally, ND’s analogizing fetuses to human eggs or tissue is just wrong-headed. No one refers to human eggs or tissue as “innocent” because they are not capable of doing anything they could be guilty for. Fetuses are often treated by pro-choice people as if they are guilty of inhabiting the woman’s womb against her will (see, e.g., Eileen McDonagh’s book Breaking the Abortion Deadlock). Fetuses are referred to as innocent because they are human beings, and how you treat something depends on what it is and what it has done. It is not always wrong to kill a human being (e.g. you can kill someone in self-defense) but it is always wrong to intentionally kill an innocent human being, and if fetuses are innocent human beings, it is wrong to intentionally kill them, too. That’s an argument that works even if you want to leave the question of personhood out of the debate. ND’s last point, that for something to have a potential future it is required that “someone” be a person is just puzzling. My dog, Roxy, is not a person. But surely she has a future ahead of her. She’ll wake up tomorrow, she’ll eat her food, she’ll go outside and lay in the sun, etc. Something does not need to be a “person” to have a future, and this is a point Marquis has made repeatedly. Making the “future of value” argument a personhood argument misses the entire point of the argument.

    3b. “Personhood” is a controversial concept, but the organ donation and anencephaly cases can help us understand it. This point is ND’s weakest, overall. Their argument amounts to: It is (usually) wrong to end the lives of persons because they have a right to life. It is not wrong to kill an organ donor or anencephalic infant. Therefore, they are not persons. But this argument is seriously question-begging. They are assuming it is not wrong to kill organ donors or anencephalic infants, but they certainly haven’t made a case for it. They alluded to the fact that anencephalic fetuses and brain dead individuals are no longer able to engage their faculties, but their comparing these two individuals to fetuses is a category mistake. These two individuals are prevented from engaging their consciousness because they’ve irreversibly lost it, but the fetus will be able to engage his consciousness once his brain develops enough. Plus, ND haven’t justified just why having consciousness-enabling brains makes one a person, when having the inherent capacity for consciousness, just lacking the present ability to exercise it, doesn’t. There are a lot of assumptions being made here that ND hasn’t justified in their article. Contrary to ND, I would argue it is always wrong to intentionally kill innocent human beings. Organ donors and anencephalic infants are innocent human beings. Therefore, it is wrong to intentionally kill them. My position is consistent, being grounded in the nature of human beings and the fact that these two individuals still are human beings. ND’s position is inconsistent, arguing that you can pick out situations and justify denying them personhood rights based on those situations.

ND’s last major section has to do with making positive arguments for the permissibility of abortion. They start off by asserting “the simple failure to show that abortion is wrong might be enough for that”, but this is surely mistaken. Why should abortion’s permissibility be the default position and not its impermissibility? I could just as easily say pro-choice people have failed to show that abortion is permissible so it should be illegal,” but that clearly wouldn’t be a very satisfying argument. Not only that, again, it’s question-begging. Just because someone can’t show why ~X, that doesn’t prove X and vice versa. As an example, even if no one could prove God exists, that doesn’t, then, prove God doesn’t exist.

ND state the ethical framework most medical ethicists use to determine whether a human being has moral rights is whether that individual has interests. That’s all well and good, but just because “most” medical ethicists use that framework doesn’t mean, ipso facto, that’s the correct framework. Plus, ND are ignoring two key points here: 1) interests are important, and we should strive to help people obtain their interests. But interests are not the only, and maybe not even the most primary, consideration about how to treat someone. ND speaks of “interests” as promoting their well-being, but the problem with that is people have different opinions of what their well-being entails. Often people have selfish interests that they pursue at the cost of the interests of others. 2) Someone can have interests without being directly aware of them. If an infant has an inheritance coming to him, but the executor of his estate squanders his inheritance, he has surely been harmed, even if he never finds out about it. So fetuses definitely have interests — there are ways in which you can act which promote the fetus’ flourishing and ways in which you can frustrate the fetus’ flourishing (most obviously by killing him in abortion). Fetuses have interests, and arguing that they can’t currently exhibit consciousness or self-awareness does not, in any way, show that fetuses don’t actually have interests, or that they don’t have interests we’re obligated to respect.

It’s true that rights protect interests, but we can’t protect our interests at the expense of someone else’s interests. I agree with ND that we ought to act in such a way as to contribute human flourishing. But grounding it in interests, as ND does, is not helpful, for the reasons listed above. Grounding rights in human nature gives us an objective standard for promoting human flourishing, as flourishing as human beings is common to all human beings. It is not merely up to one’s opinion about what their interests are. If rights are grounded in my interests, that means I have the right to mistreat other people for my own good. But clearly I don’t have this right, especially since other people have rights and interests. If rights were based in interests, there would be no way to exhibit most rights because most rights frustrate the interests of others (e.g. if I get hired for a job, I have just frustrated the interests of the person who didn’t get hired). It just doesn’t make any sense to ground rights in interests, since interests can, and often are, selfish.

So ND’s assertions that minds matter, not heartbeats or human DNA, is only part of the story. A conscious and self-aware mind are not necessary for having interests. Plus, ND are mistaken when they assert fetuses don’t have interests. Of course they do — they are just not presently aware of them. But by virtue of being a biological organism of a certain kind (i.e. human beings), they have interests by nature, and it is this nature, not their interests, that ground their rights. This is the only way to truly respect people’s rights. If rights are grounded in interests, it is impossible because interests are often selfish and it is not usually possible to act in ways that don’t frustrate an individual’s interests. But all human beings require the same basic things for flourishing, such as life, liberty, and the pursuit of happiness. This means it is entirely possible to respect other people’s rights, because I respect their ability to flourish, while also seeking my own rights to flourish as the kind of thing I am, i.e. a human being.

ND are also mistaken when they say fetuses have rights to the women’s bodies, labor, and time only if explicitly granted it. This is the same kind of argument that justifies slavery, the Holocaust, and every other type of atrocity. Fundamental rights mean no one can grant or take them away — we have these rights by our nature, not by government or by personal fiat of someone who is stronger and can kill or harm us if they so desire. The fetus has the right to the woman’s body because he has a right to life, and you must kill the fetus to remove him, and also considering in the vast majority of cases the fetus exists in the woman’s body because of a volitional act she engaged in. You can’t invite someone on your property and then kill them, claiming it was in self-defense or you were allowed to kill them because you had simply revoked consent to their being there.

To quickly recap, as I’ve shown here, ND’s case falls apart. The situations of anencephaly and organ donation are not analogous to the act of abortion, and their reasons to justify abortion don’t work, they wrongly ground rights in one’s interests instead of one’s human nature, where it should be grounded, and they simply don’t adequately anticipate good objections to their position.

I commend ND for wanting to elevate the discussion of abortion but this article goes about it the wrong way. In order to have a discussion on ethics, you need to properly understand what the pro-life position argues. ND unfortunately misses the mark.