[Note: I intended to reply immediately to Ross Douthat’s NYT op.ed. last week on abortion, but a computer disaster caused delay.  Hopefully you will agree that my post today is better late than never.]

For Ross Douthat, the case against abortion is pretty much all about the fetus.  Yes, he acknowledges that restrictions on abortion place a burden on women, but that burden can be mitigated, and is in any case a lesser evil than the taking of fetal life.

Douthat is an anti-abortion extremist. There are, after all, relatively moderate positions on the anti-abortion spectrum.  Even the Mississippi law now before the Supreme Court outlaws abortion only after 15 weeks of pregnancy. But though he doesn’t say so explicitly, the logic of his argument indicates that Douthat believes abortion should be outlawed from the moment of conception.  How does he arrive at that extreme position?

Douthat says that fetuses (he avoids using that word) are people just like you and me.  Well, no, he doesn’t actually say that.  He says that fetuses are human beings just like you and me.  (An important distinction, on which more in a moment.)  So, his argument is that

At the core of our legal system, you will find a promise that human beings should be protected from lethal violence. That promise is made in different ways by the Constitution and the Declaration of Independence; it’s there in English common law, the Ten Commandments and the Universal Declaration of Human Rights…[But] abortion kills a unique member of the specIes Homo sapiens, an act that in almost every other context is forbidden by the state law.  This means that the affirmative case for abortion rights is inherently exceptionalist, demanding a suspension of a principle that prevails in practically every other case….[I]t means that there is a burden of proof on the pro-choice side to explain why in this case taking another human life is acceptable, indeed a protected right itself.”

Clever, no?  Advocates of abortion rights are exceptionalists in departing from the universal human value placed on human life.  The burden of proof is on us to justify this radical departure.

The big problem with Douthat’s argument is that most people for most of history haven’t been thinking of fetuses in their affirmation of the human right to life; they’ve been thinking of people (or persons) like you and me. Not “members of the species homo sapiens,” but people.  Douthat insists, correctly, that fetuses are members of the human species, like you and me.  But he doesn’t go so far as to claim that the authors of the Ten Commandments, of English common law, etc. were actually thinking of fetuses.  There are multiple references to “people” and “persons” in the Constitution; there is no reference to human beings or homo sapiens.  The Declaration refers to human events, to men and to citizens, but not to human beings, much less homo sapiens.  As Douthat certainly knows, his own Catholic tradition for centuries marked the beginning of human life not with conception but with the beginning of quickening, (i.e., the beginning of movement inside the uterus).  Other religious traditions give a variety of answers to the question of when human life begins, or don’t concern themselves with it at all. The universal value  placed on human life simply does not imply a comparable value placed on fetal life.

Douthat prefers not to deal with the question of whether fetuses are persons because any claim that they are clashes with our common sense experience. We know, love, hate, communicate with and otherwise interact with other persons like ourselves; we have no comparably meaningful interactions with fetuses. It’s the defenders of fetal rights who are the exceptionalists.  It is the fetus that is the special case, the exception, when we talk about members of the human species.  Douthat says that you can’t make the distinction between fetuses and persons on the basis of such qualities as consciousness or reasoning capacity because doing so puts you on “a slippery slope from abortion to infanticide and involuntary euthanasia.” After all, newborn babies lack those typically person-like qualities, as do some elderly disabled.  Where do you draw the line?

But all “slippery slope” and “where do you draw the line” arguments need to be regarded with great skepticism.  The difficulty of determining just where to draw a line is a poor excuse for not drawing it.  The refusal to draw the line in this case leads to the preposterous conclusion that a 10-day old zygote has a right to life that trumps the right of a pregnant woman to choose how to live her life. Assuming he is consistent, that must be Douthat’s position.  It is not only preposterous; it is morally abhorrent.