Social upheaval in California isn’t exactly news, as the state has a rich history of controversy and political volatility. But the length of its embroilment in arguments over same-sex marriage makes Proposition 8 emblematic of an exhausting debate that’s taking unprecedented financial and emotional toll.

This debate has been around for a while, though public awareness of it is relatively new. Back in 1970, Rev. Troy Perry, one of America’s foremost gay activists and the founder of the pro-homosexual denomination Universal Fellowship of Metropolitan Community Churches, filed a lawsuit against the state of California over its refusal to marry homosexual couples. The suit was promptly dismissed, but the level of public support for gay marriage some thirty-eight years later is testimony to Perry’s persistence in particular, and that of the gay rights movement in general.

So while the Reverend’s case didn’t get far, the issue survived, and as cultural acceptance of homosexuality escalated in the late 1990s, a number of California citizens felt it necessary to utilize the state’s initiative process to insure that marriage in California would continue to mean what it always had. Thus Proposition 22, defining marriage as “a civil contract between a man and a woman,” was placed on the ballot in March of 2000 and then passed by 61 percent of the voters.

Case closed, many sighed in relief. Not so fast, others countered. Proposition 22 was challenged and eventually overturned eight years later by the State’s Supreme Court, which found its legal definition of marriage to be unfairly exclusive. In a 4-3 decision, the Court ruled same-sex couples to be eligible for marriage, leading to approximately 18,000 gay and lesbian couples tying the knot. Predictably, the decision was challenged by the framers of Proposition 8, who sought to yank the matter out of the courts and put it back into the hands of the people, who could vote on whether or not to amend the State constitution to define marriage as a heterosexual union.

Petitioners gathered enough signatures for a ballot measure, California stopped issuing marriage licenses to same-sex couples, and Proposition 8 was subsequently passed (and the traditional definition of marriage reaffirmed) in the November 2008 election by 52 percent of the voters. Yet another State Supreme Court challenge ensued, with advocates for gay marriage arguing that voters didn’t have the right to alter the state constitution. But on May 26, 2009, the Court ruled that the majority did indeed have that right through the initiative process, settling, at least for now, Prop 8’s constitutionality.

This time, though, no one is naïve enough to say, “Case closed.”

As of this writing, lawsuits are pending, a 2010 ballot initiative seeking to overturn Proposition 8 is in the works, and aU.S. Supreme Court showdown is a distinct possibility.

Meanwhile, conservative Christians have been feeling the heat. A number of churches were protested and even vandalized in the aftermath of November’s election, public rallies denouncing Prop. 8 supporters have been headlined by celebrities and attend ed by thousands, and Newsweek magazine’s December 15 cover story promoted a “religious” case for same-sex marriage, chiding Christians who view biblical condemnations of homo sexuality as literal and absolute. All of which presents believers with a quan dary, made up of two primary questions:(1) Do Christians have the right, much less the mandate, to see biblical values legally enforced? (2) If so, how do we decide which values to enforce?

In the interest of developing approaches to social involvement that are responsible and biblically based, let’s answer both of these concerns.

Is Legislation of Biblical Values a Christian Right or Mandate?While some professing believers are adopting a pro-gay interpretation of Scripture, most still consider homosexuality to be a violation of God’s intent revealed in both Testaments, so most Christians won’t personally accept a redefinition of marriage that includes same-sex coupling. The question for most, then, is not whether the Bible condemns homosexuality, but rather, should that condemnation be enforced through laws against gay marriage? More to the point, does Scripture command, forbid, or ignore Christian political activism?

On this point, the Bible in fact commends prioritizing rather than polarizing. The Great Commission to preach the gospel to every living creature (Matt. 28:18–20) ought not to be confused with what’s often called the Cultural Commission to be a Christlike influence in all areas of life (Matt. 5:16; Phil. 2:14–15). We needn’t polarize the two, seeing them as opposites and choosing one over the other. Rather, we should prioritize by seeing the distinction and importance of each.

The Great Commission’s importance is self-evident: humanity is dead and lost apart from Christ; the plan of salvation is made known through preaching; the Great Commission, therefore, is to preach the gospel.

The Cultural Commission is a concept author Chuck Colson articulates as follows:

God cares not only about redeeming souls but also about restoring his creation. He calls us to be agents not only of his saving grace but also of his common grace. Our job is not only to build up the church but also to build a society to the glory of God. As agents of God’s common grace, we are called to help sustain and renew his creation, to uphold the created institutions of family and society, to pursue science and scholarship, to create works of art and beauty, and to heal and help those suffering from the results of the Fall.¹

Attempting to choose between these two commissions seems akin to choosing between eating and breathing—both are required for life. Likewise, the church, when functioning properly, cannot help but express the gospel and exert its influence. Both are requisite elements of the faith. And while we can rightfully fear the extreme of seeking political power at the expense of our own integrity, our faith should still be evident in all areas of life, including our work, appearance, manner of living, and the laws we support or resist. As St. Augustine summarized: “Those who are citizens of God’s kingdom are best equipped to be citizens of the kingdom of man.”²

Yet some biblical truths are not legally enforced. It’s not illegal to not be a Christian, for example, though Jesus clearly taught we must be born again. Selfishness is a sin, yet few of us want to see it punished by law. This leads to the second relevant question:

How Do We Decide Which Values to Legislate? Common sense and Scripture both point us toward Thomas Aquinas’s concept of the Common Good, which he described as “things protecting life, preserving the state, and promoting the peace.” Behaviors that don’t violate the common good may be moral matters best left to conscience rather than law; matters that verifiably enhance or detract from the common good become legal matters. No doubt the interpretation of common good will fluctuate, sometimes imperfectly, but the concept still provides useful guidance to believers. By this definition of common good, same-sex marriage seems a matter that does, in fact, warrant concern from believers and responsible Christian activism.

If two consenting adults engage in homosexuality, it could be argued that they do no harm to the common good. Paul’s remarks regarding immorality among unbelievers might apply: “For what have I to do with judging outsiders?….God judges those outside” (1 Cor. 5:12–13 ESV). Likewise, if same-sex couples make con tractual arrangements regarding inheritance, hospital visitation, and property, few would object. But redefining marriage to in clude same-sex coupling raises the question of societal stability and the welfare of children, both of which speak directly to the common good. And if both are affected negatively by this pro posed redefinition, then Christian resistance is called for, not (primarily) because of biblical prohibitions against homosexuality, but because of the negative impact same-sex marriage would have on the common good.

Research indicates that monogamy literally stabilizes cultural life, and that heterosexual couples are far more likely to remain monogamous than homosexual ones.³ Likewise, volumes of research show children raised in a two-parent home by their biological mother and father fare better socially, academically, and emotionally than those raised in alternative arrangements.⁴

If research consistently shows that children function best when raised by their two biological parents, and that monogamy is more likely among heterosexual than homosexual couples, and if both child welfare and cultural stability impact common good, then a redefinition of marriage warrants Christian concern and response.

One can of course compare a seriously unhealthy heterosexual marriage—one featuring drug addiction, for example, or violence—to a relatively healthy same-sex relationship, and easily conclude that a child will fare better under the care of a stable homosexual couple than with an unstable heterosexual one. But pitting the worst-case scenario of one against the best-case scenario of the other hardly proves the point. One could also argue that a child is better off with a healthy single mother than with an abusive couple, but we’d still conclude that a two-parent home is more desirable.

Granted, some resist any advance in gay rights because of unwarranted prejudice against homosexuals rather than fact-based conviction. But it’s unfair and inaccurate to assume all who object to gay marriage do so out of blind prejudice, when, in fact, they could be basing their position on the reasonable premise that all citizens benefit when the definition and function of the family stays intact. And to those who object that gay marriage confers a basic right on a minority at no expense to the majority, Dr. Judith Wallerstein’s comments on the divorce experiment are apt: “We can learn a great deal by comparing these early days of the same-sex family experiment with the early days of a previous and national experiment with the family. We made radical changes in the family without realizing how it changes the experience of growing up. We embarked on a gigantic social experiment without any idea about how the next generation would be affected.”⁵

—Joe Dallas

Joe Dallas is the program director of Genesis Counseling in Tustin, California, a Christian counseling service to men dealing with sexual addiction, homosexuality, and other sexual/relational problems. He is a member of the American Association of Christian Counselors and is the author of three books on human sexuality, including Desires in Conflict (Harvest House, 1991) and A Strong Delusion (Harvest House, 1996).

notes

1 Charles Colson and Nancy Pearcey, How Now Shall We Live? (Wheaton, IL: Tyndale House, 1999), xii.

2 Quoted in Jeffrey Myers, “Why We Need to Vote as Christians,” http://barryboucher.typepad.com/ministers_matter/government/.

3 For example, see Glenn T. Stanton and Kjerstein Oligney, “Refuting Points No One Is Making,” http://ww w.citizenlink.org/pdfs/fosi/marriage/AAP_Analysis.pdf; and Peter Sprigg and Timothy Dailey, Getting It Straight: What Research Shows about Homosexuality, Family Research Council, 2004, 96–120.

4 Ibid.

5 Judith Wallerstein, et al., The Unexpected Legacy of Divorce: A 25 Year Landmark Study (New York: Hyperion, 2000), xxii.

Those who continue to fight legislation restricting abortion are in reality not pro-choice; they are singularly pro-death. While rhetoric so often serves to camouflage the carnage of abortion, it remains simply this: the painful killing of an innocent human being. Let me stress that again: the painful killing of an innocent ––an innocent human being that has done nothing to deserve capital punishment.

Allow me to explain each aspect of that definition.

It’s painful in that the methods employed to kill the pre-born child are painful.

It’s killing in that the zygote, which fulfills the criteria needed to establish the existence of biological life, is killed. This is not a metaphysical contention. This is plain, old experimental evidence. The zygote has metabolism, development, the ability to react to stimuli, and cell reproduction. This is a human being. It doesn’t have a full blown personality, but it does have full personhood from the moment of conception.

Abortion kills innocent human beings in that the child that is terminated is the product of human parents. The child has a totally distinct human genetic code. Also, as I said, though it does not have a full-blown personality; it does have full personhood from the moment of conception. Thus, far from deserving capital punishment, these innocent human beings deserve protection.

Thankfully, in God’s economy, there is hope for those who have experienced the ravages of abortion. Not only can they receive God’s forgiveness in the here and now, but they can also look forward to the ecstasy of being reunited with their unborn loved ones in eternity.

When my wife has given birth to our children, which has been many times now, she has not just given birth to a body but a body/soul unity. That body/soul unity is a human being, and we believe in a Christian worldview that that body/soul unity will exist for all eternity, so there’s an absolute certainty that we will see even aborted children in eternity. Their DNA will flower into complete perfection. They will be what they would have been if death, destruction, and decay hadn’t entered our world.

Ultimately, when I think of abortion, my mind goes back to the words of King David:

“For you created my inmost being; you knit me together in my mother’s womb.  I praise you because I am 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 depths 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.” (Psalm 139:13-16, NIV).

We have a holocaust in our midst, it is unseen, often unnoticed, but I don’t want you as a Christian to forget that there is a particular day in which we celebrate life and we remember the anniversary of Roe V Wade that has terminated the lives of so many people that ultimately we’ll only know from the perspective of eternity.

Will the West one day look like the East? No, there are too many cultural differences for that to occur. Will it look substantially different than it did as a secular culture and previously as a Christian culture? It already does, and it will do so more as the yoga leaven continues to spread.

So far, most Christians have blithely sat by as this invasion has advanced, and if they have done anything at all, it has been to raise the white flag and join the yoga movement themselves. The Christian community needs to wake up and meet this enormous challenge with a measured, thoughtful, and biblically consistent response.

Finding Biblically Acceptable Alternatives

Despite potential negative physical and psychological effects that were noted in part two, it can hardly be denied that yoga has many physical benefits. It also should be acknowledged that it can be challenging to find the same benefits through some other means. It is not a yearning for apostasy or idolatry that has attracted many Christians to hatha yoga; but if Christians are going to wage a successful counteroffensive to this Hindu missionary thrust in the West, they need to start with themselves and stop practicing yoga. This can be done without giving up the physical benefits of stretch exercises.

There is an intriguing Christian alternative to yoga developed by former yoga teacher/New Ager Laurette Willis, who converted to Christ in 1987. She recalls that in 2001, after working out with a popular exercise diva, she thought, “Wouldn’t it be great if there were a kinder, gentler form of exercise without all this jumping around…gentle stretches and strengthening exercises, sort of like yoga, but without the Hindu and New Age influence…?” She proceeded to conceive of “a form of exercise that would move us physically to better health and flexibility while moving us spiritually to praise the Lord…PraiseMoves!” (ellipses in original)³⁵

PraiseMoves is designed to approximate all of the benefits associated with yoga, including relaxation and reduction of stress, within a consistently Christian context. I have thoroughly examined PraiseMoves and find nothing spiritually dangerous about it. Its deep-breathing exercises do not resemble any of the spiritually troubling pranayama exercises I have witnessed and researched. Its “Walkin’ Wisdom Warm-up” exercises, during which scriptural affirmations or promises are repeated, bear no resemblance to yoga. Its postures all have biblical themes. Some of them are similar to yoga postures (“I’ve discovered there’s not an infinite number of ways the human body can move,” says Willis³⁶), while others are of her own creation, such as the twenty-two that correspond to the Hebrew alphabet. She has not used any traditional yoga postures or gestures that have clear-cut associations with Hinduism, such as the “praying hands” gesture. Her concluding relaxation and meditation time involves laying on one’s back and consciously relaxing each part of one’s body and then meditating on one or more of the Scriptures that were recited earlier. It does not involve the yogic meditation techniques employed in Christian yoga such as repeating a word or focusing on an object. The participant is finally encouraged to “fellowship with the Lord. If you have any cares, unconfessed sin, or unforgiveness, now is a good time to get rid of them. Rest in His presence and let Him love you.”³⁷ The only potential snare I can foresee in PraiseMoves would be if the Christian considered its devotional aspects to be sufficient for, rather than supplemental to, her daily devotions.

Some Christians will not be interested in the complete physical and spiritual package that PraiseMoves offers-they will merely be looking for good stretch exercises. Christian Research Journal contributor Marcia Montenegro cites one such alternative to yoga on her Web site.³⁸ There are additional alternatives to yoga that do not have Eastern religious or occult connections, including Pilates (when not mixed with yoga), but I am not qualified to speak to their physical efficacy or safety and the interested person should consult with her doctor and do her own research.

Removing Yoga from Public Institutions

Getting yoga established in the public school system has been the most strategic front in this spiritual invasion. As we have seen, it has already achieved breathtaking success.

Here’s the problem with the defense of yoga’s presence in the public schools that the American Yoga Association (AYA; see part two) offers: the way religion is being defined lets Eastern pantheistic religions into the schools but keeps Western theistic religions out. If one were to examine any college textbook on world religions, one would find chapters on Hinduism, Buddhism, and Taoism included along with Christianity, Judaism, and Islam. One would also find yoga mentioned as a system of salvation developed within Hinduism and utilized in other Eastern religions as well.

It is the height of ignorance or else deliberate deception for the AYA to argue that yoga is not religious because “the core of Yoga’s philosophy is that everything is supplied from within the individual. Thus, there is no dependence on an external figure, either in the sense of a person or god figure, or a religious organization.”³⁹ As we saw in part one’s examination of the philosophy behind yoga, God is believed to be within the individual, who alone can work out his (or her) own bad karma-it is strictly an autosoteric (i.e., salvation by self effort) system. So, yes, he would look within and not depend on anyone-but what is the yogi looking within and depending on himself for? Salvation! He is seeking salvation from the wheel of rebirth-a decidedly religious concept-and he is seeking union (remember that yoga means union) with God.

In all probability, if students were taught to use PraiseMoves instead of yoga, similar beneficial effects would be observed and quantified as have been with yoga. But because PraiseMoves includes references to God, Bible verses, and prayer, it would never be allowed in the public schools.

PraiseMoves’ offense would boil down to being an exoteric expression of faith; that is, being open and honest about its religious character. Eastern mysticism, on the other hand, is by its very nature esoteric; that is, it is secretive about its true nature. Exoteric faiths provide creeds or statements about God and salvation that adherents must believe and confess, whereas esoteric faiths provide rites of initiation and methods for achieving the mystical realization of one’s own divinity that adherents must experience.

Esoteric traditions typically employ code words so that only initiates will recognize the religious beliefs, practices, and experiences that they reference. Calling meditation “time in” and pranayama “bunny breathing,” as the Yoga Ed. program is doing in schools across the country (see part two), does not in any way eliminate the spiritual purpose and effects of these historically religious practices-nor does any psychological, behavioral, or physical benefits the practices may yield in addition to their spiritual effects.

Imagine if Laurette Willis or one of her certified PraiseMoves instructors argued that the religious elements in PraiseMoves should be overlooked due to its many beneficial physical and psychological effects on children. That argument would be laughed out of the schools and the courtroom, as should the same kind of argument that is now being accepted on behalf of yoga. It seems that school administrators and teachers are taking the attitude, “Let’s just eliminate obvious religious trappings and overlook anything deeper because-look at all the good it’s doing!” The only reason they are getting away with this inconsistent application of logic and the law is that the matter has not been pressed hard and persuasively enough.

Removing yoga from public schools is possible. For example, in early 1982 five concerned parents from the ABC School District in Cerritos, California, enlisted my help in their effort to convince the school board to reverse its decision to allow yoga to be incorporated into the school curriculum. The parents did their homework and made a compelling case to the board, and I added my expert testimony. In response, according to the Long Beach Press Telegram, “School Board President Homer Lewis said the program ‘bordered on a thin line’ between exercise and religion. He also said that since the district has taken such a strong stand on separation of church and state with reference to Western religions, it should ‘also take great pains to exclude religions other than those common in this country.’”⁴⁰ The board voted four to two to kill the program.

It was satisfying to win that battle, but it is hollow consolation now, as I see that we are losing the war. Government is not only “establishing” yoga in the schools, but it is beginning to do so in other public institutions as well, such as the military,⁴¹ prisons,⁴² and the criminal court system.⁴³ Yet the arguments that prevailed with the ABC School District board remain just as sound today.

We need a comprehensive and consistent definition of religion for use in the public arena. To achieve this we also need an army of concerned, conscientious, and committed citizens who will press this matter from the school boards and other public institutions all the way to the Supreme Court, if necessary. With its present composition, the Supreme Court is probably more disposed to listen to reason on this matter than it has been for a long time, but that could change as current justices retire and are replaced. Now is the time to act.

As for mandatory yoga in the work place, Title VII of the Civil Rights Act of 1964 would be a particularly useful basis for a Christian’s objection. The Equal Employment Opportunities Commission clarifies that the law

prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment….

Mandatory “new age” training programs, designed to improve employee motivation, cooperation or productivity through meditation, yoga, biofeedback or other practices, may conflict with the non-discriminatory provisions of Title VII. Employers must accommodate any employee who gives notice that these programs are inconsistent with the employee’s religious beliefs, whether or not the employer believes there is a religious basis for the employee’s objection.⁴⁴

A nightmare scenario for Christians in any culture would be to see expressions of their own faith prohibited in public venues while equivalent expressions of other faiths not only are permitted but required. While that nightmare scenario is a reality in large portions of the world (e.g., many of the Arab nations), and is beginning to unfold even in some of the other Western “Christian” nations,⁴⁵ in America the number of Christians is large enough, and the legal foundations for religious freedom are firm enough, that it is possible to turn such a trend around. This is why the time is now for Christians to snap out of their complacency and work together to present a comprehensive Christian response.

If Christians themselves succumb to the seductive temptation of yoga, then the crisis we court might not be persecution but rather subversion. The biblical reasons for saying no to yoga were forgotten long ago by the Western world at large. May the tragic day never arrive when it could also be said that they were forgotten by the church.

Pro-lifers in the United States have always assumed that if they could demonstrate beyond a reasonable doubt that the fetus is a human person, then it would be only a matter of time before the courts and legislatures would declare nontherapeutic abortion — the willful destruction of a living fetus — unjustified homicide. Thus the pro-life view would be vindicated and nontherapeutic abortion would once again be illegal.

Even pro-abortion Supreme Court Justice Harry Blackmun, who wrote the majority opinion in Roe v. Wade (1973), agrees with this assumption: “If the suggestion of personhood [of the unborn] is established, the appellant’s case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [Fourteenth Amendment].”² The scholarly and popular literature produced by evangelicals on the issue of abortion seems to make this assumption as well.³

In 1985, however, evangelical philosopher Robert Wennberg⁴ defended a moderate pro-choice position employing an argument first presented in 1971 by M.I.T. philosopher Judith Jarvis Thomson. Thomson argued that even if the fetus is a human person, abortion — at least in the early months of pregnancy — is still morally justified.⁵ Unfortunately, nearly all the books published by evangelical opponents of abortion since the release of Wennberg’s⁶ — with the exception of recent works by John and Paul Feinberg,⁷ Keith J. Pavlischek,⁸ and this writer⁹ — have failed to address this important argument. This is so despite the fact that this argument — though nearly a quarter of a century old — is now being suggested by a number of legal scholars as a way to circumvent the problems of fetal personhood which they believe were mishandled in Roe v. Wade.

THOS PERSONHOOD DOES NOT MATTER

In her 1971 article, which by 1986 had become “the most widely reprinted essay in all of contemporary philosophy,”¹⁰ Professor Thomson argued that even if the fetus is fully a human person with a right to life, this does not mean a woman must be forced to use her bodily organs to sustain its life. It is much the same, we are told, as the case in which one does not have a right to use another’s kidney if one’s kidney has failed. Consequently, a pregnant woman’s removal of a fetus from her body, even though it will probably result in its death, is no more immoral than an ordinary person’s refusal to donate his or her kidney to another in need of one, even though this refusal will probably result in the death of the prospective recipient. Thomson illustrates her position with the following story:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, “Look we’re sorry the Society of Music Lovers did this to you — we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or still longer? What if the director of the hospital says, “Tough luck, I agree, but you’ve now got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person’s right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.” I imagine that you would regard this as outrageous…(emphasis in original)¹¹

Thomson’s argument makes some very important observations that have gone virtually unnoticed. She is asking, “What happens if, for the sake of argument, we allow the premise [that the unborn are fully human or persons]? How, precisely, are we supposed to get from there to the conclusion that abortion is morally impermissible?”¹² That is to say, from the fact that a certain living organism is fully a human person, how does it logically follow that it is never permissible to kill that person?

Although a near unanimous number of ethicists maintain that it is prima facie wrong to kill an innocent human person, a vast majority agree that there may be some circumstances in which taking a human life or letting a human being die is justified, such as in the event of a just war, capital punishment, self-defense, or withdrawing medical treatment. Thomson’s argument, however, includes abortion as one of these justified circumstances. She maintains that, since pregnancy constitutes an infringement by the fetus on the pregnant woman’s personal bodily autonomy, the ordinary abortion — though it results in the death of an innocent human person — is not prima facie wrong.

One can immediately appreciate the appeal of this argument, especially in light of what is arguably the most quoted passage from Roe: “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.”¹³ The Court, however, did not choose to employ Thomson’s argument, though there is little doubt that it was brought to its attention. Consequently, the Roe Court assumed the major premise of the pro-life position: If the fetus is a person, then abortion in almost every case is unjustified homicide. This, according to a growing number of scholars, was a fatal mistake — a mistake that energized the right-to-life movement.

It appears that the first leading legal scholar to have recommended Thomson’s argument to the judiciary was Michigan Law School professor, Donald Regan, in a law review article that appeared in 1979.¹⁴ More recently, Professor Laurence Tribe of Harvard Law School, whose influence on the Court’s liberal wing is well-known, suggested in a 1990 book on abortion that the Court should have seriously considered Thomson’s argument. Tribe writes: “Perhaps the Supreme Court’s opinion in Roe, by gratuitously insisting that the fetus cannot be deemed a ‘person,’ needlessly insulted and alienated those for whom the view that the fetus is a person represents a fundamental article of faith or a bedrock personal commitment…The Court could instead have said: Even if the fetus is a person, our Constitution forbids compelling a woman to carry it for nine months and become a mother” (emphasis in original).¹⁵

In his highly acclaimed book, The Culture of Disbelief (1993), Stephen Carter of Yale Law School also recommended Thoinstead of an approach that denies that humanity under cover of the pretense that the definition is none of the state’s business. The conclusion of fetal humanity by no means ends the argument; it simply forces the striking of a balance….My point is that the only fair way around a successful legislative effort to define the fetus as human — the only option that does not deride religiously based moral judgments as inferior to secular ones — is to argue for a right to abortion despite it. And an argument of that kind does not require an attack on the religious motivations of any abortion opponents. (emphasis in original)¹⁶

In addition to what has already been mentioned, a subtle philosophical shift seems to have occurred on the Supreme Court as well as society at large, which would indicate an openness to Thomson’s argument. First, in a 1985 article Justice Ruth Bader Ginsburg, recent Clinton appointee to the Supreme Court, chided the Court for appealing to the right to privacy rather than the equal protection clause in its grounding of abortion rights. She argued that since women are unique in their ability to be burdened by pregnancy — giving men a distinct advantage in social and political advancement — women should have the right to abortion based on the constitutional principle that all people, regardless of gender, deserve equal protection under the law. Thus, Ginsburg argued, by permitting women to undergo abortions on the basis of the equal protection clause, the Court would have made a clear stand for gender equity on firm constitutional grounds rather than basing its decision on the controversial and constitutionally vague right to privacy.¹⁷

Second, consider the recent physician-assisted suicide cases in Washington state and Michigan, in which a judge in the first case and a jury in the latter acquitted physicians who had killed consenting patients by appealing to an almost absolute principle of personal autonomy. The judge in Washington claimed she could find this principle in the 14th Amendment, the same place Justice Blackmun found the right to privacy in order to constitutionally ground Roe.

Third, in the 1992 case that upheld Roe as precedent, Casey v. Planned Parenthood, the Court asserted the following about the meaning of the 14^th Amendment:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, family relationships, child rearing, and education….These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion by the State.¹⁸

Evidently the Supreme Court has chosen to abandon a rigorous defense of philosophical argument in the free marketplace of ideas only to replace it with a New Age mantra (“define your own reality”) in the convenience store of slogans.

In any event, there is little doubt that a shift is occurring in the abortion debate. This shift should be addressed by those who oppose abortion as well as those who, regardless of their stand on abortion, see Thomson’s argument as a threat to the moral force of parental obligations. Let us, therefore, take a critical look at Professor Thomson’s argument.

WHY FETAL PERSONHOOD MATTERS

Although there are a number of problems with Thomson’s argument, the following five are sufficient for the judiciary to reject it from consideration.

(1) Thomson assumes that all moral obligations are voluntary. By using the violinist story as a paradigm for all relationships, Thompson implies that moral obligations must be voluntarily accepted in order to have moral force. Thus she mistakenly infers that all true moral obligations to one’s offspring are voluntary.

Consider the following story. Suppose a couple has a sexual encounter that is fully protected by several forms of birth control short of abortion (condom, the Pill, IUD, and so forth), but nevertheless results in conception. Instead of getting an abortion, the mother of the conceptus decides to bring it to term, although the father is unaware of this decision. After the birth of the child the mother pleads with the father for child support. Because he refuses, she seeks legal action and takes him to court. Although he took every precaution to avoid fatherhood — thus showing that he did not wish to accept such a status — according to nearly all child support laws in the United States he would still be obligated to pay support precisely because of his relationship to this child.¹⁹

As Michael Levin points out, “All child-support laws make the parental body an indirect resource for the child. If the father is a construction worker, the state will intervene unless some of his calories he extends lifting equipment go to providing food for his children.”²⁰

For this reason, Keith Pavlischek argues that “given the logic of” Thomson’s argument, “the most reasonable course to follow would be to surrender the defense of paternal support laws for those children whose fathers would rather have had their children aborted.” This “will lend some credence not only to the pro-life insistence on the corollary — that an intimate connection exists between the way we collectively relate to the unborn and the way we relate to our children after birth — but also to the claim made by pro-life feminists that the abortion mentality simply reaffirms the worst historical failings, neglect, and chauvinism of males.”²¹

(2) A case can be made that the unborn does have a prima facie right to her mother’s body. Assuming there is such a thing as a special obligation to one’s children that does not have to be voluntarily accepted to have moral force, it is not obvious that the unborn entity in ordinary circumstances (that is, with the exception of significant life-endangerment to the mother) does not have a natural prima facie claim to her mother’s body. There are several reasons to suppose that the unborn entity does have such a natural claim.

First, unlike Thomson’s violinist, who is artificially attached to another person in order to save his life and is therefore not naturally dependent on any particular human being, the unborn entity is a human being who is by her very nature dependent on her mother. This is how human beings are at this stage of their development.

Second, this period of a human being’s natural development occurs in the womb. This is the journey we all must take and is a necessary condition for any human being’s post-uterine existence. And this fact alone brings out the most glaring disanalogy between the violinist and the unborn: the womb is the unborn’s natural environment whereas being artificially hooked-up to a stranger is not the natural environment for the violinist. It would seem, then, that the unborn has a prima facie natural claim upon its mother’s body.

Third, this same entity, when it becomes a newborn, has a natural claim upon her parents to care for her, regardless of whether her parents “wanted” her (see the above story of the irresponsible father). This is why we prosecute child abusers, people who throw their babies in trashcans, and parents who abandon their children.

Although it should not be ignored that pregnancy and childbirth entail certain emotional, physical, and financial sacrifices on the part of the pregnant woman, these sacrifices are also endemic of parenthood in general (which ordinarily lasts much longer than nine months). And these sacrifices do not justify the execution of troublesome infants and younger children whose existence entails a natural claim to certain financial and bodily goods that are under the ownership of their parents. If the unborn entity is fully human, as Thomson is willing to grant, why should the unborn’s natural prima facie claim to her parents’ goods differ before birth from what it will be after departing her mother’s womb?

Of course, a court will not force a parent to donate a kidney to her dying offspring. But, as in the case of the unconscious violinist, this sort of dependence on another’s body is highly unusual and is not part of the ordinary parental obligations associated with the natural process of human development.

Professor Stephen Schwarz points out that “the very thing that makes it plausible to say that the person in bed with the violinist has no duty to sustain him; namely, that he is a stranger unnaturally hooked up to him, is precisely what is absent in the case of the mother and her child.” That is to say, the mother “does have an obligation to take care of her child, to sustain her, to protect her, and especially, to let her live in the only place where she can now be protected, nourished, and allowed to grow, namely the womb.”²²

It is evident that Thomson’s violinist illustration undermines the deep natural bond between mother and child by making it seem no different than two strangers artificially hooked-up to each other so that one can “steal” the service of the other’s kidneys. Rarely if ever has something so human, so natural, so beautiful, and so wonderfully demanding of our human creativity and love been reduced to such a brutal caricature.

This is not to say that the unborn entity has an absolute natural claim to her mother’s body, but simply that she has a prima facie natural claim. For one can easily imagine a situation in which this natural claim is outweighed by other important prima facie values, such as when a pregnancy significantly endangers the mother’s life.

(3) Thomson ignores the fact that abortion is indeed killing and not merely the withholding of treatment. Thomson makes an excellent point in her use of the violinist story; namely, there are times when withholding and/or withdrawing medical treatment is morally justified. For instance, one is not morally obligated to donate his kidney to Fred (one’s next-door neighbor) simply because Fred needs a kidney in order to live. In other words, one is not obligated to risk his life so that Fred may live a few years longer. Fred should not expect that. If, however, one donates a kidney to Fred, one will have acted above and beyond the call of duty, since he will have performed a supererogatory moral act. But this case is not analogous to pregnancy and abortion.

Levin argues that there is an essential disanalogy between abortion and the unplugging of the violinist. In the case of the violinist (as well as one’s relationship to Fred’s welfare), “the person who withdraws [or withholds] his assistance is not completely responsible for the dependency on him of the person who is about to die, while the mother is completely responsible for the dependency of her fetus on her. When one is completely responsible for dependence, refusal to continue to aid is indeed killing.”

For example, “if a woman brings a newborn home from the hospital, puts it in its crib and refuses to feed it until it has starved to death, it would be absurd to say that she simply refused to assist it and had done nothing for which she should be criminally liable.”²³ Just as the withholding of food kills the child after birth, in the case of abortion it is the abortion that kills the child. In neither case is there any ailment from which the child suffers and for which highly invasive medical treatment (with the cooperation of another’s bodily organs) is necessary in order to cure this ailment and save the child’s life.

Or consider the case of a person who returns home after work to find a baby at his doorstep (as was the case in the film Three Men and a Baby, starring Tom Selleck, Ted Danson, and Steve Guttenberg). Suppose that no one else is able to care for the child, but this person only has to care for the child for nine months. (After that time a couple will adopt the child.) If we assume with Thomson that the fetus is as much a person as you or me, would “withholding treatment” (i.e., nourishment and protection) from this child and its subsequent death be justified on the basis that the homeowner was only “withholding treatment” from a child who could not benefit him, and for whom he did not ask? Is any person, born or unborn, obligated to sacrifice his life because his death would benefit another person?

Is it accurate to think of abortion as the withholding of support or treatment? Professors Schwarz and R. K. Tacelli make the important point that although “a woman who has an abortion is indeed ‘withholding support’ from her unborn child….abortion is far more than that. It is the active killing of a human person — by burning him, by crushing him, by dis­membering him.”²⁴ Euphemistically calling abortion the “withholding of support or treatment” makes about as much sense as calling suffocating someone with a pillow the withdrawing of oxygen.

(4) Thomson’s argument ignores family law. Thomson’s argument is inconsistent with the body of well-established family law, which presupposes parental responsibility of a child’s welfare. And, of course, assuming as Thomson does that the unborn are fully human, this body of law would also apply to parents’ responsibility for their unborn children. According to legal scholars Dennis J. Horan and Burke J. Balche, “All 50 states, the District of Columbia, American Samoa, Guam, and the U.S. Virgin Islands have child abuse and neglect statutes which provide for the protection of a child who does not receive needed medical care.” They further state that “a review of cases makes it clear that these statutes are properly applied to secure emergency medical treatment and sustenance (food or water, whether given orally or through intravenous or nasogastic tube) for children when parents, with or without the acquiescence of physicians, refuse to provide it.”²⁵ Evidently, “pulling the plug” on a perfectly healthy fetus, assuming that it is a human person, would clearly violate these statutes.

In a case in New York, for example, the court ruled that the parents’ actions constituted neglect when they failed to provide medical care to a child with leukemia: “The parent…may not deprive a child of lifesaving treatment, however well-intentioned. Even when the parents’ decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State’s interests, as parens patriae, in protecting the health and welfare of the child.”²⁶ The fact is that the “courts have uniformly held that a parent has the legal responsibility of furnishing his dependent child with adequate food and medical care.”²⁷

It is evident, then, that child-protection laws reflect our deepest moral intuitions about parental and community responsibility and the utter helplessness of infants and small children. These moral scruples are undoubtedly undermined by “brave new notions” of a socially contracted “voluntaristic” family (Thomson’s view). Without such scruples the protection of children and the natural bonds and filial obligations that undergird family life (and, through it, society itself) will become a thing of the past. This seems too high a price to pay for “bodily autonomy.”

(5) Thomson’s argument implies a “macho” view of bodily control, which is inconsistent with true feminism. Some pro-life feminists have pointed out that Thomson’s argument and/or the reasoning behind it, which is supposed to be consistent with feminism, is actually quite anti-feminist.²⁸ In response to a similar argument from a woman’s right to control her own body, one feminist publication asked the question, “What kind of control are we talking about? A control that allows for violence against another human being is a macho, oppressive kind of control. Women rightly object when others try to have that kind of control over them, and the movement for women’s rights asserts the moral right of women to be free from the control of others.” After all, “abortion involves violence against a small, weak and dependent child. It is macho control, the very kind the feminist movement most eloquently opposes in other contexts.”²⁹

Professor Celia Wolf-Devine makes the observation that “abortion has something…in common with the behavior ecofeminists and pacifist feminists take to be characteristically masculine; it shows a willingness to use violence in order to take control. The fetus is destroyed by being pulled apart by suction, cut in pieces, or poisoned.” Wolf-Devine goes on to point out that in terms of social thought…it is the masculine models which are most frequently employed in thinking about abortion. If masculine thought is naturally hierarchical and oriented toward power and control, then the interests of the fetus (who has no power) would naturally be suppressed in favor of the interests of the mother. But to the extent that feminist social thought is egalitarian, the question must be raised of why the mother’s interests should prevail over the child’s….Feminist thought about abortion has…been deeply pervaded by the individualism which they so ardently criticize.³⁰

Despite the recent suggestion in legal scholarship that fetal personhood ought not be the question that determines the morality of abortion, we have seen that if such a move is carried out by the courts the result would be morally and legally disastrous. For this reason, opponents of abortion ought to master the contents of this article and be prepared to engage this old philosophical, though new legal, challenge to human dignity.

Francis J. Beckwith, Ph.D. is Lecturer in Philosophy at the University of Nevada, Las Vegas, as well as Professor at Large, Simon Greenleaf University (Anaheim, CA) and Senior Research Fellow, Nevada Policy Research Institute. He is the author of Politically Correct Death: Answering the Arguments for Abortion Rights (Baker) and co-editor of The Abortion Controversy: A Reader (Jones & Bartlett). He is on the North American editorial board of the journal Ethics and Medicine.

NOTES

¹This article, under a different title, was presented at the conference, “The Christian Stake in Bioethics” (May 19-21, 1994), at Trinity Evangelical Divinity School, Deerfield, Illinois. Another version of this article (titled “From Personhood to Bodily Autonomy: The Shifting Legal Focus in the Abortion Debate”) will be published in Bioethics and the Future of Medicine, ed. Nigel Cameron, David Schiedermayer, and John Kilner (Cumbria, UK: The Pasternoster Press, 1995).

²Justice Harry Blackmun, “The 1973 Supreme Court Decisions on State Abortion Laws: Excerpts from Opinion in Roe v. Wade,” in The Problem of Abortion, 2d ed., ed. Joel Feinberg (Belmont, CA: Wadsworth, 1984), 195.

³See, for example, Harold O.J. Brown, Death Before Birth (Nashville: Thomas Nelson, 1977); Francis A. Schaeffer and C. Everett Koop, Whatever Happened to the Human Race? (Old Tappan, NJ: Revell, 1979); and John Warwick Montgomery, Slaughter of the Innocents: Abortion, Birth Control, and Divorce in the Light of Science, Law, and Theology (Westchester, IL: Crossway Books, 1981).

⁴Robert Wennberg, Life in the Balance: Exploring the Abortion Controversy (Grand Rapids: Eerdmans, 1985).

⁵Judith Jarvis Thomson, “A Defense of Abortion,” in The Problem of Abortion, 173-87. This article was originally published in Philosophy and Public Affairs 1 (1971): 47-66. All references to Thomson’s article in this article are from the Feinberg book.

⁶See, for example, R.C. Sproul, Abortion: A Rational Look at an Emotional Issue (Colorado Springs: NavPress, 1990); Randy Alcorn, Pro Life Answers to Pro Choice Questions (Portland, OR: Multnomah, 1992); and F. LaGard Smith, When Choice Becomes God (Eugene, OR: Harvest House, 1990).

⁷John S. Feinberg and Paul D. Feinberg, Ethics in a Brave New World (Wheaton, IL: Crossway Books, 1993), 66-69.

⁸Keith J. Pavlischek, “Abortion Logic and Paternal Responsibilities: One More Look at Judith Thomson’s ‘A Defense of Abortion,’” Public Affairs Quarterly 7 (October 1993):341-61.

⁹Francis J. Beckwith, Politically Correct Death: Answering the Arguments for Abortion Rights (Grand Rapids: Baker Book House, 1993), chapter 7.

¹⁰According to her editor, William Parent, in Judith Jarvis Thomson, Rights, Restitution, and Risk (Cambridge: Harvard University Press, 1986), vii.

¹¹Thomson, “A Defense of Abortion,” 174-75.

¹²Ibid., 174.

¹³Blackmun, 195.

¹⁴Donald Regan, “Rewriting Roe v. Wade,” Michigan Law Review 77 (1979).

¹⁵Laurence Tribe, Abortion: The Clash of Absolutes (New York: W. W. Norton, 1990), 135.

¹⁶Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (New York: HarperCollins, 1993), 257-58.

¹⁷Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” University of North Carolina Law Review (1985).

¹⁸Justice O’Connor, Justice Kennedy, and Justice Souter in “Planned Parenthood v. Casey (1992),” in The Abortion Controversy: A Reader, eds. Louis P. Pojman and Francis J. Beckwith (Boston: Jones & Bartlett, 1994), 54.

¹⁹See In the Best Interest of the Child: A Guide to State Child Support and Paternity Laws, eds. Carolyn Royce Kastner and Lawrence R. Young (n.p.: Child Support Enforcement Beneficial Laws Project, National Conference of State Legislatures, 1981).

²⁰Michael Levin, review of Life in the Balance by Robert Wennberg, Constitutional Commentary 3 (Summer 1986):511.

²¹Pavlischek, 343.

²²Stephen D. Schwarz, The Moral Question of Abortion (Chicago: Loyola University Press, 1990), 118.

²³Michael Levin, Feminism and Freedom (New Brunswick: Transaction Books, 1987), 288-89.

²⁴Stephen D. Schwarz and R. K. Tacelli, “Abortion and Some Philosophers: A Critical Examination,” Public Affairs Quarterly 3 (April 1989), 85.

²⁵Dennis J. Horan and Burke J. Balch, Infant Doe and Baby Jane Doe: Medical Treatment of the Handicapped Newborn, Studies in Law and Medicine Series (Chicago: Americans United for Life, 1985), 2.

²⁶In re Storar, 53 N>Y> 2d 363, 380-81, 420 N.E. 2d 64, 73, 438 N.Y.S. 2d 266, 275 (1981), as quoted in ibid., 2-3.

²⁷Horan and Balch, 3-4.

²⁸Although not dealing exclusively with Thomson’s argument, Celia Wolf-Devine’s article is quite helpful. “Abortion and the ‘Feminine Voice,’” Public Affairs Quarterly 3 (July 1989). See also Sidney Callahan, “Abortion and the Sexual Agenda,” Commonweal 113 (25 April 1986); and Janet Smith “Abortion as a Feminist Concern,” in The Zero People, ed. Jeff Lane Hensley (Ann Arbor: Servant, 1983).

²⁹N.a., Sound Advice for All Pro-life Activists and Candidates Who Wish to Include a Concern for Women’s Rights in Their Pro-life Advocacy: Feminists for Life Debate Handbook (Kansas City, MO: Feminists for Life, n.d.), 15-16.

³⁰Wolf-Devine, 86-87.

Pro-lifers in the United States have always assumed that if they could demonstrate beyond a reasonable doubt that the fetus is a human person, then it would be only a matter of time before the courts and legislatures would declare nontherapeutic abortion — the willful destruction of a living fetus — unjustified homicide. Thus the pro-life view would be vindicated and nontherapeutic abortion would once again be illegal.

Even pro-abortion Supreme Court Justice Harry Blackmun, who wrote the majority opinion in Roe v. Wade (1973), agrees with this assumption: “If the suggestion of personhood [of the unborn] is established, the appellant’s case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [Fourteenth Amendment].”² The scholarly and popular literature produced by evangelicals on the issue of abortion seems to make this assumption as well.³

In 1985, however, evangelical philosopher Robert Wennberg⁴ defended a moderate pro-choice position employing an argument first presented in 1971 by M.I.T. philosopher Judith Jarvis Thomson. Thomson argued that even if the fetus is a human person, abortion — at least in the early months of pregnancy — is still morally justified.⁵ Unfortunately, nearly all the books published by evangelical opponents of abortion since the release of Wennberg’s⁶ — with the exception of recent works by John and Paul Feinberg,⁷ Keith J. Pavlischek,⁸ and this writer⁹ — have failed to address this important argument. This is so despite the fact that this argument — though nearly a quarter of a century old — is now being suggested by a number of legal scholars as a way to circumvent the problems of fetal personhood which they believe were mishandled in Roe v. Wade.

THOS PERSONHOOD DOES NOT MATTER

In her 1971 article, which by 1986 had become “the most widely reprinted essay in all of contemporary philosophy,”¹⁰ Professor Thomson argued that even if the fetus is fully a human person with a right to life, this does not mean a woman must be forced to use her bodily organs to sustain its life. It is much the same, we are told, as the case in which one does not have a right to use another’s kidney if one’s kidney has failed. Consequently, a pregnant woman’s removal of a fetus from her body, even though it will probably result in its death, is no more immoral than an ordinary person’s refusal to donate his or her kidney to another in need of one, even though this refusal will probably result in the death of the prospective recipient. Thomson illustrates her position with the following story:

You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist’s circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, “Look we’re sorry the Society of Music Lovers did this to you — we would never have permitted it if we had known. But still, they did it, and the violinist now is plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.” Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or still longer? What if the director of the hospital says, “Tough luck, I agree, but you’ve now got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person’s right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.” I imagine that you would regard this as outrageous…(emphasis in original)¹¹

Thomson’s argument makes some very important observations that have gone virtually unnoticed. She is asking, “What happens if, for the sake of argument, we allow the premise [that the unborn are fully human or persons]? How, precisely, are we supposed to get from there to the conclusion that abortion is morally impermissible?”¹² That is to say, from the fact that a certain living organism is fully a human person, how does it logically follow that it is never permissible to kill that person?

Although a near unanimous number of ethicists maintain that it is prima facie wrong to kill an innocent human person, a vast majority agree that there may be some circumstances in which taking a human life or letting a human being die is justified, such as in the event of a just war, capital punishment, self-defense, or withdrawing medical treatment. Thomson’s argument, however, includes abortion as one of these justified circumstances. She maintains that, since pregnancy constitutes an infringement by the fetus on the pregnant woman’s personal bodily autonomy, the ordinary abortion — though it results in the death of an innocent human person — is not prima facie wrong.

One can immediately appreciate the appeal of this argument, especially in light of what is arguably the most quoted passage from Roe: “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.”¹³ The Court, however, did not choose to employ Thomson’s argument, though there is little doubt that it was brought to its attention. Consequently, the Roe Court assumed the major premise of the pro-life position: If the fetus is a person, then abortion in almost every case is unjustified homicide. This, according to a growing number of scholars, was a fatal mistake — a mistake that energized the right-to-life movement.

It appears that the first leading legal scholar to have recommended Thomson’s argument to the judiciary was Michigan Law School professor, Donald Regan, in a law review article that appeared in 1979.¹⁴ More recently, Professor Laurence Tribe of Harvard Law School, whose influence on the Court’s liberal wing is well-known, suggested in a 1990 book on abortion that the Court should have seriously considered Thomson’s argument. Tribe writes: “Perhaps the Supreme Court’s opinion in Roe, by gratuitously insisting that the fetus cannot be deemed a ‘person,’ needlessly insulted and alienated those for whom the view that the fetus is a person represents a fundamental article of faith or a bedrock personal commitment…The Court could instead have said: Even if the fetus is a person, our Constitution forbids compelling a woman to carry it for nine months and become a mother” (emphasis in original).¹⁵

In his highly acclaimed book, The Culture of Disbelief (1993), Stephen Carter of Yale Law School also recommended Thoinstead of an approach that denies that humanity under cover of the pretense that the definition is none of the state’s business. The conclusion of fetal humanity by no means ends the argument; it simply forces the striking of a balance….My point is that the only fair way around a successful legislative effort to define the fetus as human — the only option that does not deride religiously based moral judgments as inferior to secular ones — is to argue for a right to abortion despite it. And an argument of that kind does not require an attack on the religious motivations of any abortion opponents. (emphasis in original)¹⁶

In addition to what has already been mentioned, a subtle philosophical shift seems to have occurred on the Supreme Court as well as society at large, which would indicate an openness to Thomson’s argument. First, in a 1985 article Justice Ruth Bader Ginsburg, recent Clinton appointee to the Supreme Court, chided the Court for appealing to the right to privacy rather than the equal protection clause in its grounding of abortion rights. She argued that since women are unique in their ability to be burdened by pregnancy — giving men a distinct advantage in social and political advancement — women should have the right to abortion based on the constitutional principle that all people, regardless of gender, deserve equal protection under the law. Thus, Ginsburg argued, by permitting women to undergo abortions on the basis of the equal protection clause, the Court would have made a clear stand for gender equity on firm constitutional grounds rather than basing its decision on the controversial and constitutionally vague right to privacy.¹⁷

Second, consider the recent physician-assisted suicide cases in Washington state and Michigan, in which a judge in the first case and a jury in the latter acquitted physicians who had killed consenting patients by appealing to an almost absolute principle of personal autonomy. The judge in Washington claimed she could find this principle in the 14th Amendment, the same place Justice Blackmun found the right to privacy in order to constitutionally ground Roe.

Third, in the 1992 case that upheld Roe as precedent, Casey v. Planned Parenthood, the Court asserted the following about the meaning of the 14^th Amendment:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, family relationships, child rearing, and education….These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion by the State.¹⁸

Evidently the Supreme Court has chosen to abandon a rigorous defense of philosophical argument in the free marketplace of ideas only to replace it with a New Age mantra (“define your own reality”) in the convenience store of slogans.

In any event, there is little doubt that a shift is occurring in the abortion debate. This shift should be addressed by those who oppose abortion as well as those who, regardless of their stand on abortion, see Thomson’s argument as a threat to the moral force of parental obligations. Let us, therefore, take a critical look at Professor Thomson’s argument.

WHY FETAL PERSONHOOD MATTERS

Although there are a number of problems with Thomson’s argument, the following five are sufficient for the judiciary to reject it from consideration.

(1) Thomson assumes that all moral obligations are voluntary. By using the violinist story as a paradigm for all relationships, Thompson implies that moral obligations must be voluntarily accepted in order to have moral force. Thus she mistakenly infers that all true moral obligations to one’s offspring are voluntary.

Consider the following story. Suppose a couple has a sexual encounter that is fully protected by several forms of birth control short of abortion (condom, the Pill, IUD, and so forth), but nevertheless results in conception. Instead of getting an abortion, the mother of the conceptus decides to bring it to term, although the father is unaware of this decision. After the birth of the child the mother pleads with the father for child support. Because he refuses, she seeks legal action and takes him to court. Although he took every precaution to avoid fatherhood — thus showing that he did not wish to accept such a status — according to nearly all child support laws in the United States he would still be obligated to pay support precisely because of his relationship to this child.¹⁹

As Michael Levin points out, “All child-support laws make the parental body an indirect resource for the child. If the father is a construction worker, the state will intervene unless some of his calories he extends lifting equipment go to providing food for his children.”²⁰

For this reason, Keith Pavlischek argues that “given the logic of” Thomson’s argument, “the most reasonable course to follow would be to surrender the defense of paternal support laws for those children whose fathers would rather have had their children aborted.” This “will lend some credence not only to the pro-life insistence on the corollary — that an intimate connection exists between the way we collectively relate to the unborn and the way we relate to our children after birth — but also to the claim made by pro-life feminists that the abortion mentality simply reaffirms the worst historical failings, neglect, and chauvinism of males.”²¹

(2) A case can be made that the unborn does have a prima facie right to her mother’s body. Assuming there is such a thing as a special obligation to one’s children that does not have to be voluntarily accepted to have moral force, it is not obvious that the unborn entity in ordinary circumstances (that is, with the exception of significant life-endangerment to the mother) does not have a natural prima facie claim to her mother’s body. There are several reasons to suppose that the unborn entity does have such a natural claim.

First, unlike Thomson’s violinist, who is artificially attached to another person in order to save his life and is therefore not naturally dependent on any particular human being, the unborn entity is a human being who is by her very nature dependent on her mother. This is how human beings are at this stage of their development.

Second, this period of a human being’s natural development occurs in the womb. This is the journey we all must take and is a necessary condition for any human being’s post-uterine existence. And this fact alone brings out the most glaring disanalogy between the violinist and the unborn: the womb is the unborn’s natural environment whereas being artificially hooked-up to a stranger is not the natural environment for the violinist. It would seem, then, that the unborn has a prima facie natural claim upon its mother’s body.

Third, this same entity, when it becomes a newborn, has a natural claim upon her parents to care for her, regardless of whether her parents “wanted” her (see the above story of the irresponsible father). This is why we prosecute child abusers, people who throw their babies in trashcans, and parents who abandon their children.

Although it should not be ignored that pregnancy and childbirth entail certain emotional, physical, and financial sacrifices on the part of the pregnant woman, these sacrifices are also endemic of parenthood in general (which ordinarily lasts much longer than nine months). And these sacrifices do not justify the execution of troublesome infants and younger children whose existence entails a natural claim to certain financial and bodily goods that are under the ownership of their parents. If the unborn entity is fully human, as Thomson is willing to grant, why should the unborn’s natural prima facie claim to her parents’ goods differ before birth from what it will be after departing her mother’s womb?

Of course, a court will not force a parent to donate a kidney to her dying offspring. But, as in the case of the unconscious violinist, this sort of dependence on another’s body is highly unusual and is not part of the ordinary parental obligations associated with the natural process of human development.

Professor Stephen Schwarz points out that “the very thing that makes it plausible to say that the person in bed with the violinist has no duty to sustain him; namely, that he is a stranger unnaturally hooked up to him, is precisely what is absent in the case of the mother and her child.” That is to say, the mother “does have an obligation to take care of her child, to sustain her, to protect her, and especially, to let her live in the only place where she can now be protected, nourished, and allowed to grow, namely the womb.”²²

It is evident that Thomson’s violinist illustration undermines the deep natural bond between mother and child by making it seem no different than two strangers artificially hooked-up to each other so that one can “steal” the service of the other’s kidneys. Rarely if ever has something so human, so natural, so beautiful, and so wonderfully demanding of our human creativity and love been reduced to such a brutal caricature.

This is not to say that the unborn entity has an absolute natural claim to her mother’s body, but simply that she has a prima facie natural claim. For one can easily imagine a situation in which this natural claim is outweighed by other important prima facie values, such as when a pregnancy significantly endangers the mother’s life.

(3) Thomson ignores the fact that abortion is indeed killing and not merely the withholding of treatment. Thomson makes an excellent point in her use of the violinist story; namely, there are times when withholding and/or withdrawing medical treatment is morally justified. For instance, one is not morally obligated to donate his kidney to Fred (one’s next-door neighbor) simply because Fred needs a kidney in order to live. In other words, one is not obligated to risk his life so that Fred may live a few years longer. Fred should not expect that. If, however, one donates a kidney to Fred, one will have acted above and beyond the call of duty, since he will have performed a supererogatory moral act. But this case is not analogous to pregnancy and abortion.

Levin argues that there is an essential disanalogy between abortion and the unplugging of the violinist. In the case of the violinist (as well as one’s relationship to Fred’s welfare), “the person who withdraws [or withholds] his assistance is not completely responsible for the dependency on him of the person who is about to die, while the mother is completely responsible for the dependency of her fetus on her. When one is completely responsible for dependence, refusal to continue to aid is indeed killing.”

For example, “if a woman brings a newborn home from the hospital, puts it in its crib and refuses to feed it until it has starved to death, it would be absurd to say that she simply refused to assist it and had done nothing for which she should be criminally liable.”²³ Just as the withholding of food kills the child after birth, in the case of abortion it is the abortion that kills the child. In neither case is there any ailment from which the child suffers and for which highly invasive medical treatment (with the cooperation of another’s bodily organs) is necessary in order to cure this ailment and save the child’s life.

Or consider the case of a person who returns home after work to find a baby at his doorstep (as was the case in the film Three Men and a Baby, starring Tom Selleck, Ted Danson, and Steve Guttenberg). Suppose that no one else is able to care for the child, but this person only has to care for the child for nine months. (After that time a couple will adopt the child.) If we assume with Thomson that the fetus is as much a person as you or me, would “withholding treatment” (i.e., nourishment and protection) from this child and its subsequent death be justified on the basis that the homeowner was only “withholding treatment” from a child who could not benefit him, and for whom he did not ask? Is any person, born or unborn, obligated to sacrifice his life because his death would benefit another person?

Is it accurate to think of abortion as the withholding of support or treatment? Professors Schwarz and R. K. Tacelli make the important point that although “a woman who has an abortion is indeed ‘withholding support’ from her unborn child….abortion is far more than that. It is the active killing of a human person — by burning him, by crushing him, by dis­membering him.”²⁴ Euphemistically calling abortion the “withholding of support or treatment” makes about as much sense as calling suffocating someone with a pillow the withdrawing of oxygen.

(4) Thomson’s argument ignores family law. Thomson’s argument is inconsistent with the body of well-established family law, which presupposes parental responsibility of a child’s welfare. And, of course, assuming as Thomson does that the unborn are fully human, this body of law would also apply to parents’ responsibility for their unborn children. According to legal scholars Dennis J. Horan and Burke J. Balche, “All 50 states, the District of Columbia, American Samoa, Guam, and the U.S. Virgin Islands have child abuse and neglect statutes which provide for the protection of a child who does not receive needed medical care.” They further state that “a review of cases makes it clear that these statutes are properly applied to secure emergency medical treatment and sustenance (food or water, whether given orally or through intravenous or nasogastic tube) for children when parents, with or without the acquiescence of physicians, refuse to provide it.”²⁵ Evidently, “pulling the plug” on a perfectly healthy fetus, assuming that it is a human person, would clearly violate these statutes.

In a case in New York, for example, the court ruled that the parents’ actions constituted neglect when they failed to provide medical care to a child with leukemia: “The parent…may not deprive a child of lifesaving treatment, however well-intentioned. Even when the parents’ decision to decline necessary treatment is based on constitutional grounds, such as religious beliefs, it must yield to the State’s interests, as parens patriae, in protecting the health and welfare of the child.”²⁶ The fact is that the “courts have uniformly held that a parent has the legal responsibility of furnishing his dependent child with adequate food and medical care.”²⁷

It is evident, then, that child-protection laws reflect our deepest moral intuitions about parental and community responsibility and the utter helplessness of infants and small children. These moral scruples are undoubtedly undermined by “brave new notions” of a socially contracted “voluntaristic” family (Thomson’s view). Without such scruples the protection of children and the natural bonds and filial obligations that undergird family life (and, through it, society itself) will become a thing of the past. This seems too high a price to pay for “bodily autonomy.”

(5) Thomson’s argument implies a “macho” view of bodily control, which is inconsistent with true feminism. Some pro-life feminists have pointed out that Thomson’s argument and/or the reasoning behind it, which is supposed to be consistent with feminism, is actually quite anti-feminist.²⁸ In response to a similar argument from a woman’s right to control her own body, one feminist publication asked the question, “What kind of control are we talking about? A control that allows for violence against another human being is a macho, oppressive kind of control. Women rightly object when others try to have that kind of control over them, and the movement for women’s rights asserts the moral right of women to be free from the control of others.” After all, “abortion involves violence against a small, weak and dependent child. It is macho control, the very kind the feminist movement most eloquently opposes in other contexts.”²⁹

Professor Celia Wolf-Devine makes the observation that “abortion has something…in common with the behavior ecofeminists and pacifist feminists take to be characteristically masculine; it shows a willingness to use violence in order to take control. The fetus is destroyed by being pulled apart by suction, cut in pieces, or poisoned.” Wolf-Devine goes on to point out that in terms of social thought…it is the masculine models which are most frequently employed in thinking about abortion. If masculine thought is naturally hierarchical and oriented toward power and control, then the interests of the fetus (who has no power) would naturally be suppressed in favor of the interests of the mother. But to the extent that feminist social thought is egalitarian, the question must be raised of why the mother’s interests should prevail over the child’s….Feminist thought about abortion has…been deeply pervaded by the individualism which they so ardently criticize.³⁰

Despite the recent suggestion in legal scholarship that fetal personhood ought not be the question that determines the morality of abortion, we have seen that if such a move is carried out by the courts the result would be morally and legally disastrous. For this reason, opponents of abortion ought to master the contents of this article and be prepared to engage this old philosophical, though new legal, challenge to human dignity.

Francis J. Beckwith, Ph.D. is Lecturer in Philosophy at the University of Nevada, Las Vegas, as well as Professor at Large, Simon Greenleaf University (Anaheim, CA) and Senior Research Fellow, Nevada Policy Research Institute. He is the author of Politically Correct Death: Answering the Arguments for Abortion Rights (Baker) and co-editor of The Abortion Controversy: A Reader (Jones & Bartlett). He is on the North American editorial board of the journal Ethics and Medicine.

NOTES

¹This article, under a different title, was presented at the conference, “The Christian Stake in Bioethics” (May 19-21, 1994), at Trinity Evangelical Divinity School, Deerfield, Illinois. Another version of this article (titled “From Personhood to Bodily Autonomy: The Shifting Legal Focus in the Abortion Debate”) will be published in Bioethics and the Future of Medicine, ed. Nigel Cameron, David Schiedermayer, and John Kilner (Cumbria, UK: The Pasternoster Press, 1995).

²Justice Harry Blackmun, “The 1973 Supreme Court Decisions on State Abortion Laws: Excerpts from Opinion in Roe v. Wade,” in The Problem of Abortion, 2d ed., ed. Joel Feinberg (Belmont, CA: Wadsworth, 1984), 195.

³See, for example, Harold O.J. Brown, Death Before Birth (Nashville: Thomas Nelson, 1977); Francis A. Schaeffer and C. Everett Koop, Whatever Happened to the Human Race? (Old Tappan, NJ: Revell, 1979); and John Warwick Montgomery, Slaughter of the Innocents: Abortion, Birth Control, and Divorce in the Light of Science, Law, and Theology (Westchester, IL: Crossway Books, 1981).

⁴Robert Wennberg, Life in the Balance: Exploring the Abortion Controversy (Grand Rapids: Eerdmans, 1985).

⁵Judith Jarvis Thomson, “A Defense of Abortion,” in The Problem of Abortion, 173-87. This article was originally published in Philosophy and Public Affairs 1 (1971): 47-66. All references to Thomson’s article in this article are from the Feinberg book.

⁶See, for example, R.C. Sproul, Abortion: A Rational Look at an Emotional Issue (Colorado Springs: NavPress, 1990); Randy Alcorn, Pro Life Answers to Pro Choice Questions (Portland, OR: Multnomah, 1992); and F. LaGard Smith, When Choice Becomes God (Eugene, OR: Harvest House, 1990).

⁷John S. Feinberg and Paul D. Feinberg, Ethics in a Brave New World (Wheaton, IL: Crossway Books, 1993), 66-69.

⁸Keith J. Pavlischek, “Abortion Logic and Paternal Responsibilities: One More Look at Judith Thomson’s ‘A Defense of Abortion,’” Public Affairs Quarterly 7 (October 1993):341-61.

⁹Francis J. Beckwith, Politically Correct Death: Answering the Arguments for Abortion Rights (Grand Rapids: Baker Book House, 1993), chapter 7.

¹⁰According to her editor, William Parent, in Judith Jarvis Thomson, Rights, Restitution, and Risk (Cambridge: Harvard University Press, 1986), vii.

¹¹Thomson, “A Defense of Abortion,” 174-75.

¹²Ibid., 174.

¹³Blackmun, 195.

¹⁴Donald Regan, “Rewriting Roe v. Wade,” Michigan Law Review 77 (1979).

¹⁵Laurence Tribe, Abortion: The Clash of Absolutes (New York: W. W. Norton, 1990), 135.

¹⁶Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (New York: HarperCollins, 1993), 257-58.

¹⁷Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” University of North Carolina Law Review (1985).

¹⁸Justice O’Connor, Justice Kennedy, and Justice Souter in “Planned Parenthood v. Casey (1992),” in The Abortion Controversy: A Reader, eds. Louis P. Pojman and Francis J. Beckwith (Boston: Jones & Bartlett, 1994), 54.

¹⁹See In the Best Interest of the Child: A Guide to State Child Support and Paternity Laws, eds. Carolyn Royce Kastner and Lawrence R. Young (n.p.: Child Support Enforcement Beneficial Laws Project, National Conference of State Legislatures, 1981).

²⁰Michael Levin, review of Life in the Balance by Robert Wennberg, Constitutional Commentary 3 (Summer 1986):511.

²¹Pavlischek, 343.

²²Stephen D. Schwarz, The Moral Question of Abortion (Chicago: Loyola University Press, 1990), 118.

²³Michael Levin, Feminism and Freedom (New Brunswick: Transaction Books, 1987), 288-89.

²⁴Stephen D. Schwarz and R. K. Tacelli, “Abortion and Some Philosophers: A Critical Examination,” Public Affairs Quarterly 3 (April 1989), 85.

²⁵Dennis J. Horan and Burke J. Balch, Infant Doe and Baby Jane Doe: Medical Treatment of the Handicapped Newborn, Studies in Law and Medicine Series (Chicago: Americans United for Life, 1985), 2.

²⁶In re Storar, 53 N>Y> 2d 363, 380-81, 420 N.E. 2d 64, 73, 438 N.Y.S. 2d 266, 275 (1981), as quoted in ibid., 2-3.

²⁷Horan and Balch, 3-4.

²⁸Although not dealing exclusively with Thomson’s argument,