By / Jul 8

In this episode, Brent and Lindsay discuss Happy the elephant and what the controversy teaches us about personhood. They also discuss developments in a post-Roe America; and how to talk to your kids about sexting. 

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By / Jul 5

On June 14, 2022, the New York Court of Appeals ruled in a 5-2 decision that Happy was not a human. Happy is a 51-year-old Asian elephant who has been kept at the Bronx Zoo for the past 45 years, having spent the previous 15 years in isolation in her enclosure due to a hostile relationship with other elephants at the zoo. The Nonhuman Rights Project representing Happy in the case contended Happy ought to be legally considered a person, thus possessing the ability to invoke habeas corpus which would free her from isolation at the zoo. The court, while acknowledging that “dialogue regarding the protection and welfare of nonhuman animals is an essential characteristic of our humanity,” ultimately disagreed with Happy’s defense, asserting that Happy is, in fact, only an elephant. 

There is certainly merit within the public square, and particularly among Christians, to deliberate and discuss how we can best care for creation and animal life. The first commandment God gave Adam in the Garden of Eden was to have dominion over the rest of what God created (Gen. 1:28), a responsibility characterized by cultivation and stewardship. Yet, this case, rather than demonstrating how best to care for creation, can serve as a warning to Christians who seek to define what is or is not a human being especially since this question strikes at the core of many of the most pressing social questions of our day.

Defining a human being 

Integral to The Nonhuman Rights Project’s argument to free Happy was the human-like qualities elephants possess. They asserted that “elephants are intelligent beings, who have the capacity for self-awareness, long-term memory, intentional communication, learning and problem-solving skills, empathy, and significant emotional response.” This appeal was unconvincing to the court because “the selective capacit[ies] for autonomy, intelligence, and emotion of a particular nonhuman animal species . . .  are not what makes a person.” They continued their disagreement by stating, “the right to liberty of humans because they are humans with certain fundamental liberty right recognized by law.” 

In these meager two sentences at the core of the court’s opinion, we find the crux of the matter: there is something more to being human than mere rational capacities, intelligence, or emotional capabilities. Even though the court rightfully never attempted to define what it means to be a person, their reticence to do so serves as an example of wisdom for Christians seeking to ensure human dignity for each person. 

Genesis 1 communicates that persons are different from the rest of creation because we are made in the imago Dei, or in the image of God (Gen. 1:26-27). Theories as to what the imago Dei might include range from having rational capacity, creative freedom, walking on two legs, or self awareness. Yet, these definitions fall into the same trap as The Nonhuman Rights Project—by ascribing what it means to be a person to a set of attributes, these potential definitions are both underinclusive and overinclusive. They are underinclusive in that some persons who do not have the defining capacity can be excluded; and overinclusive in that some non-persons possess certain capacities traditionally associated with humanity.

If the New York Court of Appeals had agreed with The Nonhuman Rights Project’s definition of what it means to be human, persons with mental disabilities, those who are preborn and newly born, and persons with cognitive diseases would have been excluded from personhood. Christians can fall into the same trap. Whether it be rational capacity, emotional capabilities, social disposition, or any other well-intentioned articulation of the principle found in Genesis 1, groups of persons who are made in the image of God will invariably be denied their dignity if one attempts to define the image of God. When this happens, we desecrate the image of God because we refuse to affirm it in others simply due to a lack of the specified quality we have come to value. Such patterns of thought disorder a Christian theological anthropology because it locates human dignity in an attribute rather than the status of the imago Dei that is the very root of what it means to be human. 

3 lessons from this case

While the Christian who is concerned for the inherent value of other beings can celebrate the court’s decision to unwittingly protect the rights of all persons regardless of ability, three lessons are to be gleaned from this case: 

1. The world is composed of human beings with a range of abilities and perspectives. Each of these persons is to be celebrated because they are created in the image of God and loved by him. Further, church communities ought to be constituted of persons of all abilities and all stages of life, as each person teaches and instructs us on the love, creativity, intelligence, and care of the Creator. 

2. Creation is marvelous. The fact that an elephant can possess all these traits similar to humans should be worthy of our praise to the Creator. Allowing ourselves to find wonder within creation permits even more opportunities to worship God. Such an ability found in a non-person in creation simply points to the creativity and intelligence of our Creator. Yet, even as amazing as creation is, let us not confuse an animal as what it means to be a person.

3. Christians valuing and advocating for every person’s inherent dignity ought to use this case as a clarion call for our vigilance in protecting the vulnerable. Theologically, we ought to use this case as a reminder to be cognizant of what it means to be a human being and what it means to be made in the image of God. Politically, this case should serve as a reminder to Christians in the public square to remain vigilant in our defense of others who have their human dignity threatened. Because all people are created in the image of God, the rules and laws governing our country should respect the inherent dignity of all persons. 

As we go forward, let us think carefully about our emotions, language, and actions. 

We can enjoy God’s kind gifts, such as amazing animals, without disrupting the value of each human being made in the image of God and abandoning God’s design for the created order. Sometimes, in our culture of confusion, events that might seem silly to some of us, such as the legal trial of an elephant at a zoo, can mount a significant challenge to what it means to be a person, and thus, what it means to be made in the image of God. Let us be a people who meet these temptations and challenges with the truth of God’s Word, a ready answer, and a commitment to uphold the special value God has bestowed on every human being. 

By / Jul 22

Every person reading this is a human being. But what does that actually mean? “Human dignity” is a term used by Christians (and non-Christians) in policy conversations about a vast array of topics including poverty alleviation, humanitarian aid, abortion, and euthanasia. As Christians, we believe that God creating humankind in his image means that every person possesses an inherent and inalienable dignity. In other words, every human life is precious because every life belongs to a person who bears God’s image. Because of the value and preciousness of each life, it is vital that we develop a clear biblical understanding of what a human is and what the image of God implies. 

What is a human?

Our culture has wrongfully placed the responsibility of defining personhood onto individuals instead of our Creator, who, as “the Alpha and the Omega, the First and the Last, the Beginning and the End” (Rev. 22:13), has the rightful authority to define our being. Claiming false authority over personhood has led to broken families, distorted views of sexuality, and heinous acts such as abortion in our society. Thankfully, through the creation account, the Bible helps us understand specific ways human beings are set apart from the rest of creation. Though faithful scholars differ in certain respects about exactly what it means to be made in God’s image, below you’ll find three characteristics about humanity that are clearly implied by the opening section of Genesis. 

1. Humans are relational

“Then God said, “Let us make man in our image, after our likeness. And let them have dominion over the fish of the sea and over the birds of the heavens and over the livestock and over all the earth and over every creeping thing that creeps on the earth” (Gen. 1:26)

When God created mankind, he did so as a Trinity of three persons: the Father, the Son, and the Holy Spirit. God created us to live in community with him and with one another, reflecting his relational nature. As one God in three persons, God is relational by nature. Similarly, humans are made to operate in relationships. This is precisely what God emphasizes when he creates Eve to live in union with Adam and says, “It is not good for man to be alone” (Gen. 2:18). 

Through the blood of Jesus, God invites us into fellowship with the divine Trinity. John writes in 1 John 1:3, “Indeed our fellowship is with the Father and with his Son Jesus Christ.” God’s heart for relationships is further revealed in the New Testament when he establishes the familial nature of the church, encouraging believers throughout the New Testament to “devote themselves to fellowship,” to “have one heart and one mind,” to “bear one another’s burdens,” and to “love one another with brotherly affection” (Acts 2:42; 4:32; Gal. 6:2; Rom. 12:10).

2. Humans are distinct/unique

So God created man in his own image, in the image of God he created him; male and female he created them” (Gen. 1:27). 

In creating us, God not only gave us the ability to love and enjoy companionship with one another and himself, but he also made us distinct in two ways. First, as mentioned above, mankind is made in God’s image. And from Genesis, we learn that human beings are distinct because we are the only part of God’s creation that he specifically made in his image. 

Second, God made us distinct in terms of biology. As Genesis 1:27 tells us, God designed us as either male and female. These distinctions in biological sex are apparent in many ways, including our DNA and external features. Each sex is unique, and various aspects of God’s nature are displayed in both men and women. Ultimately, these distinctions are an important part of the mystery of the gospel, particularly when they are on display in a one flesh union between a husband and a wife. 

As the New Testament explains, the male and female marriage relationship is a picture of Christ’s love for the church. Paul writes of the mysterious, holy complexity of the marriage relationship in Ephesians 5:32: “For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh. This mystery is profound, but I am speaking about Christ and the church.” Long before Christ’s incarnation, God purposefully created humanity as male and female and designed the marriage union to display truths about himself. 

Biological sex in every individual is one aspect of God’s design that proclaims his creativity and gives us a clearer picture of his image. The distinct features each human bears remind us that no life is ever interchangeable, replaceable, or worthless.

3. Humans are commissioned

God blessed them and said to them, “Be fruitful and multiply, and fill the earth and subdue it; rule over the fish of the sea and the birds of the air and every creature that crawls upon the earth” (Gen. 1:28). 

Every person has a designated role as a steward and cultivator over the earth. God gave Adam a job: to have children, to subdue the ground, and to rule over the other living creatures. Each of us can subdue, or tame, the earth through all kinds of vocations, but this command reveals that God has designed a place and a purpose for each of us (Eph. 2:10). God has included in our makeup the ability to procreate, desires and determination to care for and protect our families — with specific callings designed for husband and wife — to produce things that are good and useful, and to assert leadership in various settings. In order to preserve ourselves and care for loved ones, we employ different gifts and talents that add value to the world and subsequently seek the good of our neighbors. 

God sets his image-bearers above creation and other created beings in giving us vocations. Adam Smith’s The Wealth of Nations is widely taught and accepted, observing the phenomenon of trade as an obvious outlier from the way animals relate. Smith is merely observing what has been woven into creation — God has uniquely commissioned his image-bearers to work and care for his good creation, and even the marketplace puts his creative design on display.

Conclusion

The special care God took in setting humans apart from other created beings is why a Christian understanding of human dignity is important when considering issues of justice. Slavery, genocide, abortion, and exploitation of all kinds are tragic displays of treating other humans as utilities. But God’s unmistakable genius in each of our bodies, minds, hearts, and personalities denies any attempt to devalue a human’s worth. These practices are considered “inhumane” because they treat people as a means to an end, more like subordinate animals than respected brothers and sisters.

As Christians, we must defend the vulnerable on the grounds that humans are image-bearers; there is no amount of privilege or power that makes a man or woman more or less valuable. Physical distinctions are often a barrier to relationships and an excuse for sinful and exploitative uses of authority, but the Bible makes no distinction when it comes to a person’s value; every person bears the imago Dei, and every person matters.

When God finished creating heaven, earth, and us, he called his masterpiece “very good” (Gen. 1:31). Long ago, God defined our worth so sinful humans wouldn’t be responsible for determining the value of a life. From conception to death, humans have dignity, eminence, and significance because we are the only creatures God made in his image. We may not understand the full picture of the imago Dei until we are face to face with God in heaven, but we do see God’s image reflected in how humans are relational, distinct, and commissioned.

By / Dec 8

Peter Singer, Princeton’s Ira W. Decamp Professor of Bioethics in the University Center for Human Values, is (in)famous for his arguments about personhood. For Singer, only beings that have sentience can appropriately be describe as persons. Sentience is the ability to experience conscious pleasure and pain. Conscious pain is that interior state of mind that elicits a pain response such that we say to ourselves or others, “Ouch!” “That hurts!” “Stop it!” “Leave me alone!” etc. So, Singer argues, causing any kind of pain to animals is a moral harm and ought to be avoided. The morally good form of life is a vegan lifestyle. 

Because Singer believes that animals are sentient persons and sentient person have rights, including a right to life, Singer has been an advocate for a granting a “right to life” to Great Apes, dolphins, dogs, and other species.  

Furthermore, for Singer, since “a chimpanzee, dog, or pig, for instance, will have a higher degree of self-awareness and a greater capacity for meaningful relations with others than a severely retarded infant or someone in a state of advanced senility . . . we must grant these animals a right to life as good as, or better than, such retarded or senile humans” (Singer, Animal Liberation, p. 19).  Following his own logic has led Singer to defend bestiality and even the rape of disabled people

Singer’s extremism sometimes makes him easy to dismiss and vilify. But, if sentience is what defines personhood, then he may be right. So it’s crucial to understand what personhood is and to recognize who is a person.

Understanding personhood

Personalism is a school of thought that prioritizes the person. According to the personalist account of Notre Dame sociologist Christian Smith, a person is “the particular kind of being that under proper conditions is capable of developing into (or has developed into) a conscious, reflective, embodied, self-transcending center of subjective experience, durable identity, moral commitment, and social communication who—as the efficient cause of his or her responsible actions and interactions exercises complex capacities for agency and intersubjectivity in order to develop and sustain his or her own incommunicable self in loving relationships with other personal selves and with the nonpersonal world.” This is a very useful starting point, and every clause is important.

“Person” has a long history in theological discourse, especially in the Christological debates of the early church. Orthodox Christians affirm that each member of the Trinity is a person. Those three persons—Father, Son, and Holy Spirit—are one God. As the hymnwriter put it, “God in three persons, blessed Trinity.” The Bible also speaks of other persons, including angelic persons and human persons. The early church spent a great deal of time trying to understand who is and who isn’t a person. 

According to the biblical witness, to be human is to be a person.

According to biblical theology, human persons, as distinct from divine and angelic persons, are embodied from conception onward. At conception, at least one genetically unique human person is formed (twinning may occur during the first two weeks of pregnancy). So the psalmist offers a glorious hymn to God in Psalm 139:

“You created my inmost being, you knit me together in my mother’s womb. I praise you because of I fearfully and wonderfully made; your works are wonderful, I know that full well. My frame was not hidden from you when I was made in the secret place, when I was woven together in the depth of the earth, Your eyes saw my unformed body; all the days ordained for me were written in your book before one of them came to be” (13-16 NIV). 

Human persons are, however, the only persons who are made in the imago Dei (image of God). Thus, Jesus—fully God and fully human—is the “image of the invisible God, the firstborn over all creation” (Col. 1:15). Likewise, according to Genesis, “God created humankind in his own image, in the image of God he created them, male and female he created them” (Gen. 1:27).

Singer defines persons on the basis of their functional capacities (e.g., the ability to experience conscious pleasure and pain). But the Bible nowhere defines personhood that way. In fact, according to the biblical witness, to be human is to be a person. To be made in the image of God is to be a human person. All members of the species Homo sapiens are persons quite apart from their location (in or out of the womb), age (unborn or born), or functional capacities (cognitively disabled or cognitively healthy).

Note again Christian Smith’s definition of a person as “the particular kind of being that under proper conditions is capable of developing into . . . . a conscious, reflective,” etc., being. Unborn human beings are not, therefore, potential persons. They are persons with potential. Under proper conditions (e.g., not being aborted), they will develop those markers of personhood. But those markers of personhood are not personhood itself, but the signs we typically observe to one degree or another in persons.

In my own view, personhood is not a set of functional capacities, but an ontological status. Every entity who is made in the image of God is a person. All Homo sapiens are made in the image of God. Therefore, all Homo sapiens are persons, regardless of other conditions.

By / Dec 1

I had the dubious distinction of graduating from high school in 1973, the year Roe v. Wade and Doe v. Bolton where handed down by the Supreme Court, giving the U.S. the most permissive abortion policy in the Western world. I remember well the question everyone was asking at that time: “When does human life begin?” 

Justice Harry Blackmun famously wrote in the court’s majority opinion, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer” (p 159). For decades, the abortion debated hinged on the answer to that question. 

Today, no matter what their view on the legality of abortion, every informed and honest person agrees that an individual human life begins at conception. The science is settled. When half the chromosomes from a woman’s egg line fuse with the other half from a man’s sperm, a new, genetically unique human being comes into existence. To be exact, at least one genetically unique human being comes into existence, because twinning is still possible at that point.  So, human life begins at conception.

We’ve known the science for a long time, but the implications have become clearer over time. For instance, the debates in the early 2000s over human embryonic stem cells actually helped to clarify the debate about abortion. For a long time, the debate about abortion was ostensibly as much about a woman’s body as about the destruction of an embryo or fetus. Abortion was justified, and still is by many, on the basis of a woman’s right to control what happens in her body. The fetus is in her body, so the woman has a right to have it removed, even if doing so results in the death of the fetus—or so the argument goes. 

With the human embryonic stem cell debate, the woman’s body was removed from the equation. The light was shown like a laser on the living human embryo. Human eggs and sperm were retrieved from donors, fertilized in a petri dish, and coaxed to develop in vitro (literally, in glass). The debate about human embryonic stem cell research was never about “when human life begins.” Everyone knew that the eggs were from a human female, the sperm from a human male, and the result was living human embryos. Dead embryos would not work for research purposes. And the scientist doing the research did not want dog embryos, cat embryos, or even mouse embryos. They wanted human embryos, and that’s what they got. Living. Human. Embryos.

The question of personhood

How, then, can someone who believes that human life begins at conception justify abortion or even human embryonic stem cell research? Because the question has been reframed. Of course the embryos are clearly human, and of course these tiny humans are clearly alive, but they are not persons. The argument shifts then. Yes, persons have a right to life—a right not to be unnecessarily harmed—but, the argument goes, human embryos are not yet persons. Only persons have a right to life. 

When does personhood begin?  That is the question now. Or to put it another way, are embryos persons? Are fetuses persons? For that matter, are newborns persons?  

In a seminal essay on abortion, reprinted in nearly every introductory anthology on ethics, philosopher Judith Jarvis Thomson posed a hypothetical. Suppose, she said, you awakened one morning to find that someone had surgically connected your kidneys to a world-class concert violinist in order to preserve the ailing violinist’s life. This will mean that you might be confined to a bed for nine days, nine months, or nine years, depending on how long he lives. Thomson asked, “Are you morally obligated to maintain the connection?” 

She then embarks on a very interesting, if convoluted, journey to try to demonstrate that you only have a very minimal obligation to sustain the life of the violinist if doing so does not cause great inconvenience to you. Even though she is willing to grant for the sake of the argument that a fetus is a person, at the end of the essay she reveals her own view of the moral status of the unborn human being. “At this place, however, it should be remembered that we have only been pretending throughout that the fetus is a human being from the moment of conception. A very early abortion is surely not the killing of a person, and so is not dealt with by anything I have said here.” Case closed. Fetuses are not persons, according to Thomson. So, is no harm done in killing “it”? No, to be accurate, the fetus is a him or her. Even our language signals that fetuses are gendered persons. 

What is personhood? Or, better, who is a human person? Human persons (in contrast to divine and angelic persons) are individual members of the species Homo sapiens. Rocks are not persons, plants are not persons, and animals are not persons, despite efforts to grant great apes, dolphins, and other animals personhood status. In theological terms, a human is someone made in God’s image and likeness (Gen. 1:27). 

In Genesis 9:1-7, God makes a distinction between animals and humans, giving Noah and his family permission to kill the animals for food, but prohibiting the unjust killing of another human being because humans alone are made in God’s own image. The image of God, the imago Dei, is the basis of human exceptionalism. Although there are various theories about just what constitutes the image of God in humanity, it’s clear from Scripture that human beings alone are made in God’s image.

Human beings—imagers of God—are persons from conception. This is clear in passages like Psalm 139:13-16 (HCSB):

For it was You who created my inward parts;
You knit me together in my mother’s womb.
I will praise You
because I have been remarkably and wonderfully made.
Your works are wonderful,
and I know this very well.
My bones were not hidden from You
when I was made in secret,
when I was formed in the depths of the earth.
Your eyes saw me when I was formless;
all my days were written in Your book and planned
before a single one of them began.

David, the psalmist, acknowledges God’s intricate handiwork in the womb. He also realizes that God knew him as a person before he was born. The real questions today, then, are who counts as persons, and what are our obligations to persons? If every member of the species Homo sapiens is a person, then we have certain obligations not to unnecessarily harm other human beings. The unjust taking of the life of an unborn human being is a harm. Therefore, abortion is wrong because it is the destruction of a human person. 

By / Oct 2

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).