Why partial birth 'abortions' should be banned

By TIBOR R. MACHAN
Freedom News Service

What does "partial birth abortion" mean, anyway? A procedure whereby a nearly born infant is killed just before it sees the light of day. The reasons for this are usually because there are concerns about the health of the mother, but without a ban that wouldn’t be necessary.
What is wrong with it, if anything? As someone who is pro-choice up until weeks 24-27 of pregnancy, I would be among those who consider this procedure not only morally wrong – that could well be true with any abortions – but also one that should be legally prohibited, against the law, a crime. That’s because at that point of the development of the fetus it is pretty much a child, so killing it amounts to homicide – infanticide – beyond a reasonable doubt.
The most vehement opposition to banning partial birth "abortions" – and the scare quotes are there because "abortion" means the termination of a pregnancy, not of a human being – comes from those who think the ban sets a bad precedent. They argue that a slippery slope is created this way, one that will ultimately result in banning all abortions. Moreover, some worry that a mother’s life may be jeopardized so as to keep alive any child about to be born.
As to the slippery slope, it is not applicable. I am fond of concerns about the slippery slope in valid instances, but this isn’t such an instance, since here we are dealing not with a zygote or embryo or even an early fetus but an infant, which is clearly different.
By all rights any attempt to kill a fetus after the 24-27 week pregnancy point amounts to homicide, whereas killing it before that point is to terminate the life of a potential, not an actual human being. What is the difference between the two so that laws maybe passed against killing the actual but not the potential human being?
At about the 25th week of pregnancy, the fetus acquires the (admittedly minimal yet real) capacity to use its higher mental faculty. The cerebral cortex is by then part of the brain, and it is this part that renders something a rational living being, the defining aspect of what it is to be human. So, once a fetus gains the cerebral cortex, it is no longer merely a potential human but in fact an actual human being, somewhat analogous to how after the caterpillar sheds its cocoon it turns into a butterfly but before that it is only a potential butterfly.
As far as jeopardizing the lives of mothers, there is no reason that exceptional cases couldn’t be seen for what they are and legal provisions made, accordingly, as is the case with self-defensive killings in general.
The two extremes on the issue of abortion are: (a) At conception we get a human being; and (b) we get a human being only when other people ("society") have identified the newborn as an individual young person or infant. The Aristotelian mean, so to speak – the happy medium between two unreasonable extremes – is the fetus that is now in possession of what it takes to be a human being, a rational (albeit minimally functioning) mind. Even St. Thomas Aquinas agreed with this.
Of course, there are many views about this, and anyone who chimes in like I am doing will have to weather some very serious objections. What about the ensoulment idea, that at conception God implants a soul in the conceptus, thus making it a human being? What about the idea that what is potentially X is virtually X, anyway, so why not give it the same protection as one gives to X?
Or, on the other side, what about the fact that we celebrate the birthday when an infant emerges from the womb? What about the fact that infants usually do not get named until some time after birth, so personhood should be ascribed to them at that point. And then there the claim that it is viability that should count, not acquisition of the cerebral cortex.
Trouble with ensoulment is that it is heavily dependent on a given theological school of thought, not shared by all of the citizens of a large and diverse society to whom the law applies. Laws based on such a restrictive tradition are clearly unjust. And, also, often for about two weeks after conception there is no individual person – could, indeed, be two or three or more, by the time things settle down. Furthermore, if one considers killing the life of a potential human being something that ought to be banned, then, since there isn’t any appreciable difference between it and other living animals, vegetarianism is the only alternative that’s moral.
But going in the other direction is also unwarranted. Birth dates are notoriously variable – some are born very early, some normally and some very late, so this would amount to a very arbitrary point for considering the newborn, well, a newborn. And it would render it palatable to judge the matter entirely by cultural standards which can be extremely variable, too.
Thus, using the biological point at which the thing that defines us as human becomes real for a fetus as the point where killing it would become legally actionable – except in cases that are extraordinary – is indeed the most reasonable solution to this vexing problem. The ban on partial birth "abortions" is, therefore, quite reasonable.

Tibor Machan is a professor of business ethics and Western Civilization at Chapman University in Orange, Calif., and author of "The Passion for Liberty" (Rowman & Littlefield). He advises Freedom Communications, parent company of this newspaper. E-mail him at Machan@chapman.edu