"Once or twice in a century an issue arises … so deep in its foundations that it calls every person to take a stand," wrote the late Judge John T. Noonan Jr.
Abortion is one of those issues. It’s different from most issues and concerns in our world today. It's a deeper issue. It has to do with a foundational question for any individual and any society—one we can't afford to ignore.
A lawyer was once told to love his neighbor. He responded, "And who is my neighbor?" That, in essence, is the question: Who counts as one of us? Or to put it another way: What's the scope of the human family—the community of those who deserve the respect and protection of each other?
Rocks don't count. Insects aren't our neighbors, either. Rocks and insects aren't "persons" who should be treated as ends in themselves. They don't have rights. That's why we may use them for our own purposes. We can discard or destroy them when they inconvenience us.
Some non-human animals (like dogs and dolphins), many think, should receive much more consideration than that. Nevertheless, most people don't think animals share in our equal rights. We can own pets, for example, because they aren't people. A gerbil isn't one of us.
Toddlers and grandmothers, by contrast, certainly do count. They are persons who deserve respect and bear equal basic rights. That means we have to treat them a certain way. We can't manipulate them for our own ends. We can't get rid of them when they impose on us. We can't intentionally end their lives.
Who counts as one of us? It’s hard to think of any political, cultural, or moral question that is more important. Throughout history, it's been at the center of most of humanity’s great debates about what justice requires. Do women count? Do African Americans count? Native Americans? Jews? It's crucial that we get the answers right. We haven't always, and wrongful exclusion has led, in each case, to catastrophic injustice.
Abortion raises the same question. Does a human embryo or fetus count as one of us? That's the heart of the abortion debate. After all, abortion is the intentional destruction of that embryo or fetus. It happens almost 900,000 times each year in the U.S. alone. Is such killing okay, or is it unjust? Killing mosquitoes is okay because they don't have a right to live. But do unborn children?
"The whole question," observed Boston physician Horatio R. Storer more than 150 years ago, "turns on ... the real nature of the foetus in utero."
Abortion arguments that avoid this question miss the mark. Women have the right to choose, some say. We have the right to choose to do many things, but we don't have the right to have innocent people destroyed. If unborn children are innocent people, then we don’t have a right to destroy them.
Women face difficult circumstances, others emphasize. But we may not kill already-born children when confronted with such circumstances. If unborn children really matter, like born children do, then we should address the challenges women too often face—but without killing anyone.
Many point to a woman's right to control her own body. That's important, but it's not a right to attack and demolish the body of someone else (whom parents are also responsible for creating in the first place). If that other individual has human rights, then abortion definitely violates them.
Here's the bottom line, as Greg Koukl puts it: "If the unborn is not a human person, no justification for abortion is necessary. However, if the unborn is a human person, no justification for abortion is adequate."
So the question always comes back to this: Does an unborn child count?
It's the great question of justice of our time. And answering it requires asking another foundational question: What's the basis (or criteria) for being a "person" or having human rights? What determines whether or not someone counts?
Some people have thought that gender is relevant to whether (or how much) someone counts. Or skin color. Or ethnicity. Or religion. Most people now (correctly) recognize that those traits don’t determine human rights. In today's abortion debate, though, many do think rights depend on physical appearance, cognitive ability, independence from others, or the attitude of someone else.
If our rights hinge on such characteristics—traits that some humans have and others don't—then unborn humans might not meet the threshold. And others (those who are too young, too old, too disabled, too unwanted) might not either. This is an exclusive view of human rights.
But if we have human rights by virtue of what we are (i.e., simply because we are human), then all humans matter. Science shows that embryos and fetuses are living members of the species Homo sapiens. Each of us, indeed, was once one of them. So if all humans matter, then unborn humans matter. This is an inclusive view of human rights.
The choice, then, is between exclusion and inclusion. And everyone, Judge Noonan said, must take a stand. In this debate over the scope of our human family, as in all prior such debates, the stakes are just too high to do otherwise.
This article appears in the March 2021 issue of NRL News.