About “Abortion, Politics, and the Value of Human Life”: Various thoughts concerning a presentation by Dr. Jonathan Dudley, MD

About “Abortion, Politics, and the Value of Human Life”:

Various thoughts concerning a presentation by Dr. Jonathan Dudley, MD

By Hendrik van der Breggen, PhD

0. Overview

1. Introduction

2. About the burning-fertility-clinic thought experiment

3. About the alleged inconsistency of pro-life groups not wishing punishment for women who have abortions

4. About Dudley's reasoning from Scripture

               a. Psalm 139:13, 16; Jeremiah 1:5; Ephesians 1:4

               b. Luke 1:41

               c. Exodus 21:22-24

5. About Dudley's moral-philosophical reasoning from science

               a. The moment of conception

               b. Later in pregnancy

6. About Dudley's defense of the value of developing human life

7. About Dudley's political recommendations

8. VDB's final comments

9. Suggested resources
10. Addendum: Abortion and Exodus 21: 22-25

1. Introduction

Dr. Jonathan Dudley, MD, presented the talk “Abortion, Politics, and the Value of Human Life” at Calvin College which was subsequently published on YouTube, October 15, 2019. Dr. Dudley's 57 minute talk can be seen here.

Here is some (impressive) background information about Dr. Dudley, from the blurb at the YouTube video:

Dr. Jonathan Dudley, M.D. is the author of “Broken Words: The Abuse of Science and Faith in American Politics,” published by Random House (https://tinyurl.com/y4nrmy2m). He graduated from Calvin College with honors in Biology, studied bioethics at Yale University Divinity School (graduating summa cum laude), and holds a medical doctorate from the Johns Hopkins School of Medicine. He is board certified in Molecular Genetic Pathology and is the author of 16 peer-reviewed papers in the field of human genetics, with over 700 academic citations of his work. He has received the Young Investigator Award from the Association for Molecular Pathology for his scientific achievements. His writing and political activism have been featured in the New York Times and he has appeared on CNN's Newsroom with Kyra Phillips.

The thesis of Dr. Dudley's lecture is that “The best Christian and secular arguments against abortion do not depend on the position that it is the same as killing another person.” Dudley adds, “Recognizing this suggests Christians should oppose abortion differently.” Presumably, people who are pro-life but aren't Christian should do the same.

Dr. Dudley makes some interesting points in his presentation, but if Christians or others should oppose abortion differently, I don't think it's because of the arguments that Dudley sets out against the personhood of the unborn. Several of those arguments are problematic, and I think that the accumulation of those problems counts seriously against Dudley's thesis. Insofar as Dudley's thesis hangs on his criticisms of the personhood arguments (which seems to be the case), then insofar as Dudley's arguments against the personhood of the unborn don't stand, to that extent Dudley's thesis—that the best arguments against abortion don't depend on the position that abortion is the same as killing another person—is problematic.

Below I set out several of Dudley's various major arguments—i.e., the ones I find problematic—and I offer comments/critiques.

2. About the burning-fertility-clinic thought experiment

Dudley begins his presentation with the following thought experiment: We're in a burning fertility clinic, in one corner is a baby and in the other corner is a test tube containing 50 human embryos, and we can only save one (the baby or the test tube), so which do we save? It seems that the tendency/intuitive response of most people (today) is to save the baby. The conclusion that seems to be desired by the constructors or promoters of the thought experiment is that our moral intuitions show that human embryos aren't really all that important morally—they aren't persons with the right to life—and we know it.

My reply:

The burning-fertility-clinic thought experiment is a popular thought experiment, making its rounds on social media as well as in ethics classes. But the thought experiment is not without problems. I see at least two.

One problem is that our moral intuitions may be clouded. Consider this: Over the past several decades there has been a fallacy-ridden intellectual fog that surrounds the issue of abortion, more specifically, an intellectual/cultural confusion that surrounds the question of what/who is in fact aborted. This is relevant to our thoughts about what/who is in the test tube. I remember hearing and reading discussions in which what is aborted is deemed to be merely a “clump of cells," or merely “the products of conception,” or a “parasite,” or “like a wart,” or a potential-but-not-actual human being (all of these descriptions are either inaccurate or euphemisms, or both). Most recently, I heard a U.S. government official refer to a miscarriage as “just some mess on a napkin.” Such confusion probably influences the thought experiment. Indeed, I suspect that if we presented the thought experiment to an all-white population in the southern United States prior to the U.S. civil war and substituted the test tube with a cage full of 50 black slaves and specified that the baby was white, the answer would be save the baby, too.  And I suspect that if we set out the thought experiment in Nazi Germany in the 1940s and substituted the test tube with 50 Jews and specified that the baby was a blue-eyed Caucasian of Aryan decent, the answer would be save the baby, again. So, as interesting as the burning-fertility-clinic thought experiment is, it may show that many of us (today) are not clear on what exactly is getting aborted. I think that at present in the abortion discussion the public moral imagination still needs to be informed by what is true, i.e., by knowledge of what is true gotten via evidence, careful reasoning, and careful use of language.

Another problem is that it's a forced false dilemma. As for me, I would simply resist the dilemma and save both the test tube and the baby—and hope the test tube would serve as a soother to keep the baby calm while I run through the fire! (Yes, this last bit is a wee attempt at humour.)

3. About the alleged inconsistency of pro-life groups not wishing punishment for women who have abortions

Dudley argues that something is amiss/inconsistent because if pro-life people actually view the unborn as persons, then they should have the same attitude (of judgment) towards women who have an abortion as they have to women who would choose to kill a five-year-old child—i.e., the women deserve punishment—but pro-life people don't have that attitude (or at least most pro-life people I am aware of don't have this attitude, President Trump and some of his supporters notwithstanding). This suggests, according to Dudley, that pro-life people don't actually think of abortion as killing another person.

My reply:

I think Dudley's inconsistency charge misses the fact (as mentioned above) that over the past several decades there has been a fallacy-ridden intellectual fog/debate over the issue of whether or not the unborn is in fact a human being/person. But this hasn't been the case (at least not in recent history, some philosophers notwithstanding) over the issue of whether or not a five-year-old child is in fact a human being/person. So it seems to me that the pro-life groups that are against punishing women for having abortions are being (rightly) sensitive to women who have been influenced by our culture of confusion surrounding abortion. Pro-life people do actually think of abortion as killing another person, yet they also display virtues of mercy and forgiveness and love to those who see abortion as an answer to their problems.

4. About Dudley's reasoning from Scripture

Aside: I didn't become pro-life because of Scripture, at least not directly. Of course, the command “Do not murder" was at the back of my thinking, but I think I believed it because I intuited it to be true and/or was socialized to believe it. My pro-life view on abortion came to the fore of my consciousness in the 1980s because I became keenly aware of the many poor arguments set out in defence of abortion and set out as denials of the humanity and personhood of the unborn. I also became a follower of Jesus in the early 1980s, so, in retrospect, I also think that God was helping me think clearly and motivated me to pursue truth, goodness, and beauty. The Bible influenced my pro-life view significantly a wee bit later, when I contemplated the significance of the Incarnation for ethics in general and the abortion issue in particular. Jesus was fully God and fully human at conception. This article influenced me greatly: Herbert T. Krimmel and Martin J. Foley, “Abortion and Human Life: A Christian Perspective,” The Simon Greenleaf Law Review, Volume 5 (1985-1986), 7-21.

a. Psalm 139:13, 16; Jeremiah 1:5; Ephesians 1:4

Dudley holds that these passages have to do with God's foreknowledge, not the personhood of the unborn. Dudley makes his case via a reductio ad absurdum argument: If these passages point to the personhood of the unborn, the fact remains that they also point to foreknowledge, therefore we have to conclude (according to Dudley) that we exist prior to physical conception, which is absurd, so the texts can't be used to support the personhood of the unborn.

In reply, it seems to me that Dudley isn't taking seriously those scholars who oppose his interpretation of these texts. For example, Francis Beckwith, a philosopher (at Baylor University) has done much work on the topic of abortion: Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press 2007); Politically Correct Death: Answering Arguments for Abortion Rights (Baker 1993); Abortion and the Sanctity of Human Life (College Press 2000). In the latter two books, Beckwith deals with Scripture: Politically Correct Death, chapter 8; Abortion, chapter 7.

Dudley is correct that the passages have to do with God's foreknowledge, but I (following Beckwith) don't think Dudley is correct (if I understand Dudley correctly) to appeal to foreknowledge as a ground for his reductio ad absurdum. Here (again) is Dudley's reductio: If these passages point to the personhood of the unborn, the fact remains that they also point to foreknowledge, therefore we have to conclude we exist prior to physical conception, which is absurd, so the texts can't be used to support the personhood of the unborn. It seems to me, however, that if we're talking about an all-knowing God (which Dudley is talking about), then foreknowledge may be about human beings after their physical conception which is foreknown prior to their physical conception, if human beings do in fact come into being at physical conception, and so Dudley's claim/alleged absurdity—that we exist prior to conception because of God's foreknowledge—doesn't follow and cannot be employed as a false consequence to show that human beings don't come into being at physical conception. (Yes, the previous sentence is a long one! But it's important—and shows that Dudley's argument is mistaken.)

b. Luke 1:41

Re: “When Elizabeth heard Mary's greeting, the baby leaped in her womb…” Dudley notes that the word “baby” is used to describe Elizabeth's fetus, and then (immediately) Dudley takes a look at a passage in Hebrews in an attempt to weaken what seems to be the obvious meaning in Luke 1:41.

Yes, Dudley is correct to note that the word “baby” is used to describe Elizabeth's fetus. That's significant. But also significant, which is not noted by Dudley, is that because of the immediate context of this verse, Elizabeth's interlocutor—Mary, the mother of Jesus—should be taken into account. Mary is pregnant, too. She had conceived the person Jesus, who is fully human as well as fully God, according to the traditional (and I think correct) understanding of the gospels and epistles. That suggests fetuses are human persons, especially if we take Jesus to be our model for humanity. (For more on this, see Herbert T. Krimmel & Martin J. Foley, “Abortion and Human Life: A Christian Perspective,” The Simon Greenleaf Law Review, Volume 5 [1985-1986], 7-21.) Surprisingly, Dudley makes no mention whatsoever of Jesus. Rather, Dudley immediately goes onto to a passage in Hebrews. This strikes me as an odd interpretative maneuver. Usually we go to immediate context. (Note: This isn't a “slam-dunk" refutation of Dudley's work here, but I think it casts serious concern onto it.)

c. Exodus 21:22-24

The history of the translation of Exodus 21:22 is interesting, for sure. And Dudley is generally helpful here. Dudley rightly asks: Is the text talking about a miscarriage (most translations) or about giving birth prematurely (NIV and some other translations)?

But Dudley isn't helpful when, in making his presentation, he makes it seem that the NIV—a favourite translation of many Evangelicals—is doing something totally bad. Via the translation “she gives birth prematurely” the NIV is, according to Dudley, “neutralizing” many readers' previous Exodus-based reservations about abortion being murder. But I notice that the NIV also has a footnote in the text which states “or she has a miscarriage.” Dudley should mention this, too, to be fair to the NIV translators in their acknowledgment of the ambiguity. Dudley makes it seem like the NIV translators do not acknowledge the ambiguity. This strikes me as unfair.

Dudley may be correct in pointing out that Exodus 21:22 isn't sufficient grounds for thinking that the fetus is fully human or fully a person. But it should be noted that the passage also isn't grounds for thinking that the fetus is NOT fully human/fully a person. There seems to be an ambiguity in the text—an ambiguity that also cuts against deniers of the unborn's personhood. On one reading, the text requires capital punishment only if the mother is killed, whereas on another reading also if the fetus is killed. Here it should be noted (which Dudley doesn't note) that in the previous verse in Exodus, a slave who is accidentally killed doesn't receive capital punishment, yet Scriptures do consider slaves to be fully human. It should also be noted (but isn't) that there is in the Bible what New Testament scholar William J. Webb calls “redemptive movement.” Over time, the Scriptures elevate the personhood status of slaves. (See William J. Webb, Slaves, Women, and Homosexuals: Exploring the Hermeneutics of Cultural Analysis [IVP 2001].) This redemptive movement may be true of fetuses, too, especially when we take into account the New Testament's witness to the Incarnation.  So the non-receipt of capital punishment even if the fetus were killed isn't a sign the fetus isn't fully human.

At any rate, much has been written on Exodus 21:22. I think it's safe to say it's a difficult passage and we should keep in mind that the New Testament has a high view of the humanity of the fetus, especially because of the Incarnation—i.e., Jesus is fully God and fully human when conceived in Mary's womb. And we should keep in mind that good biblical scholarship, which takes into account the whole of the Bible, can legitimately interpret the Old Testament in light of the New Testament. If the legitimacy of evangelical interpretation is Dudley's target—which is the case—then this evangelical, Christ-centered hermeneutical approach should be taken into account. But Dudley doesn't do this.

Scott Klusendorf has a good, short discussion of Exodus 21:22 in his book The Case for Life: Equipping Christians to Engage the Culture (Crossway 2009, pages 142-143. See too Francis Beckwith, Politically Correct Death: Answering Arguments for Abortion Rights (Baker 1993), pages 142-144. (See separate document/addendum below for a copy of Beckwith's pages 142-44: “Abortion & Exodus 21: 22-25.” I used to assign Beckwith's pages to my students in Ethics when we discussed abortion and the Bible.)

5. About Dudley's moral-philosophical reasoning from science

a. The moment of conception

Via moral-philosophical reasoning from science, Dudley challenges the claim that human embryos have an equal moral status as that of other more-developed human beings. First, he criticizes the view that the transition from a haploid to diploid cell (i.e., the transition from non-fertilized egg to fertilized egg) is more morally significant than the transition from diploid (fertilized egg) to fetus. According to Dudley, there is no clear dividing line. “Like pregnancy, fertilization is also a continuous spectrum of events.” Dudley adds, “Drawing a line somewhere in the process of fertilization seems no less arbitrary than drawing a line at other points in pregnancy." Second, the claim that the completion of the unique genome/DNA at conception means there is a human being with rights at conception is problematic, according to Dudley, because “not every successful fertilization results in something most of us would call a human being." Here Dudley points to a biparental hydatidiform mole, which, though having a unique genome gotten from the parents, is in fact a disorganized mass of tissue. Third, the claim that human embryos have an equal moral status as that of other more-developed human beings is problematic or “harder to accept,” according to Dudley, because the majority of all embryos (60%) are spontaneously miscarried. This last problem doesn't mean the embryo isn't a human being, per Dudley, but it is to say that pro-life people don't really believe the embryo has equal moral standing as other more-developed human beings. Why not? Because, according to Dudley, no money or effort is being spent on the huge number of embryo deaths due to miscarriage. Dudley sets out a chart in which he shows that although billions of dollars are spent on heart disease, cancer, and HIV/AIDS, no money is spent on preventing embryo deaths due to miscarriage—even though the number of embryo deaths due to miscarriage is 6 times more than the number due to heart disease, 12 times more than cancer, and 30 times more than HIV/AIDS.

My reply/critique:

Dudley's challenge to the claim that human embryos have an equal moral status as that of other more-developed human beings does not succeed because each of his three reasons are problematic.

First, contrary to what Dudley argues, in the transition from non-fertilized egg to fertilized egg there is a clear dividing line—it's merely a thick one with perhaps fuzzy edges—and it's hugely significant morally. Yes, there is a “spectrum" of events at fertilization, that is, there is a continuity of various micro-steps in the process wherein the sperm fertilizes the egg and it may be difficult to pinpoint exactly where/when fertilization is complete. But the fact is that fertilization does in fact reach completion, and this spectrum—what I'm calling the thick line with perhaps fuzzy edges—does in fact end after fertilization is complete. At that moment, or at the end of a micro-moment after that moment, a new physical substance—a new and different organism—is fully on the scene and has begun its existence. The fact of a fuzzy edge resulting from a continuous spectrum of events doesn't preclude knowing we've gotten beyond the fuzzy edge of the phenomenon we are investigating. Perhaps an analogy will help our understanding here. Often there is a fuzzy edge between a where a forest ends and where a farmer's wheat field begins and we don't know exactly where the line is, but we do know when we've gotten out of the forest and are standing in the edge of the farmer's wheat field. Using a different analogy that perhaps better captures the fuzziness at hand (my attempt at humor), philosopher Francis Beckwith calls this the Fallacy of the Beard: “just because I cannot tell you when stubble ends and a beard begins does not mean that I cannot distinguish bearded faces from clean-shaven ones” (Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice [Cambridge: Cambridge University Press, 2007], 67). The case is similar when a new embryo is created. After fertilization is completed, a new embryo is formed, even though we may not know exactly where the line of its genesis ends and exactly where the immediate subsequent stage begins, yet we do know when it has crossed the line. Furthermore, the new embryo—the new substance—that is formed after fertilization is completed is, compared to the previous substances (the sperm and unfertilized egg), morally significant in a big way. The new substance is neither the sperm nor the egg; rather, it is a fertilized egg—a zygote/embryo—which has significantly different physical properties compared to the individual sperm and individual egg that were its physical predecessors. If fertilization is successful, the result is a genetically distinct, self-governing dynamic organism/entity that belongs to the human species—it's a new human embryo, a new human being. If human beings are hugely morally significant because of the kind of thing they are, then their huge moral significance begins when they begin, even if there's a thick and fuzzy edge that marks that beginning.

The spectrum of events that in fact constitutes subsequent pregnancy, to which Dudley points, is not relevant here. Why not? Because it simply has to do with the later developmental stages of the already existent human being, not the becoming of the new substance that is the human being. The great moral significance of the later developmental stages is there already because of its being there and coming into being at the beginning. This means that drawing a line at (or at the end of, or shortly after the fuzzy edge of) fertilization is not arbitrary. Such a line accurately reflects the reality of the physical goings-on and the distinctions therein. Whereas a sperm or an egg is by itself not morally significant (not in any big way), the fact is that when they unite—that is, at the completion side of the thick line of fertilization—the first stage of a hugely morally significant being comes into existence.

In other words, Dudley fails to see (to use yet another analogy) the forest because of the trees: he confuses a continuous spectrum of events at fertilization—i.e., the line's thickness with fuzzy edges—for thinking there isn't a line at all. But there is a dividing line, albeit a thick one with fuzzy edges. And we can know when something is in fact on the other side of it. In the case of human beings that is significant. Very significant.

(Afterthought: I am not sure that the line is as thick and fuzzy as I have made it out to be. I think it's quite a bit thinner and not so fuzzy. Thick or not, fuzzy or not, my point that there is a dividing line remains and so Dudley's point to the contrary fails. Also, if there is doubt due to the thickness and fuzziness of the line, then surely we should err on the side of human life. If you are out deer hunting with your friends and you're not sure the rustling in the bushes is one of your friends or a deer, then don't shoot!)

Second, Dudley's appeal to the (rarely occurring) biparental hydatidiform mole is successful as an objection to a human being with rights beginning at conception only insofar as one thinks that the mere having of a unique DNA is sufficient to constitute a human embryo and thus a human being; but it is not successful as a challenge—i.e., Dudley's challenge—to the claim that human embryos have an equal moral status as that of other more-developed human beings. Dudley is correct to think the mere having of unique DNA doesn't constitute a human being with rights, but he isn't correct in thinking that a biparental hydatidiform mole is an embryo. Why not? Well, simply stated, it's because the biparental hydatidiform mole is not an embryo. And because it's not an embryo, Dudley's appeal to it doesn't serve as a counter-example to a transition from a haploid to diploid cell (i.e., a human embryo) not being morally significant. Dudley correctly points out, “due to a simple mutation, it [the object or substance that is the result of fertilization] develops into a disorganized mass of tissue [i.e., a biparental hydatidiform mole] that most of us would have trouble calling a human being.” And Dudley correctly points out, “If you're not willing to say it's a human being with human rights then you have to say that some level of biological organization is necessary beyond simply have a unique set of DNA.” Right, and right. Significantly, however, because Dudley misses the fact that the result of fertilization which constitutes the biparental hydatidiform mole is not an embryo, his objection misses the mark. It is beside the point at hand. Reminder: Dudley is arguing that the human embryo at conception doesn't have rights. Consequently, for Dudley to point to a non-embryo is not relevant to his thesis. If fertilization is successful, the result is an embryo, which is a genetically distinct and self-governing dynamic organism/entity that belongs to the human species. A biparental hydatidiform mole is not a genetically distinct, self-governing dynamic organism/entity that belongs to the human species.

Some insights from Samuel B. Condic (a philosopher) and Maureen L. Condic (a neurobiologist) may be helpful here. See the Condics' book, Human Embryos, Human Beings: A Scientific and Philosophical Approach (Catholic University Press of America, 2018), pages 255-257. According to Condic and Condic, not having the aforementioned mutation (i.e., the mutation the biparental hydatidiform mole has) is a necessary condition for the fertilized egg to be an embryo. According to Condic and Condic, the biparental hydatidiform mole is not an embryo because it cannot undergo development, that is, the requisite potentia of a human embryo is not present, and this potentia is necessary to have the status as an actual embryo. So the biparental hydatidiform mole is merely a mole, not an embryo. (Interestingly, the etymology of the word “mole” has to do with false conception.)

Therefore, the transition from a haploid to diploid cell, i.e., the transition from non-fertilized egg to fertilized egg—i.e., to an actual human embryo—remains hugely significant morally, more so than the transition from diploid (fertilized egg) to fetus. Why? Because, physically, the transition marks the beginning of a new substance, not its continued existence. And because, morally, the transition marks the beginning of a new being with great intrinsic worth, not its mere continuation. In the case of the genesis of this new substance or being, the goodness in the moral universe is increased hugely, whereas in the case of the continuation of the already extant substance or being, the goodness in the moral universe remains the same. Dudley's argument based on the biparental hydatidiform mole misses this completely.

Third, from Dudley's claims that the majority of all embryos (60%) are spontaneously miscarried and that little or no money is spent on preventing embryo deaths due to miscarriage (I'll take Dudley's word on these matters) it does not follow that this “does make it harder to accept the moral claim that if embryos are human beings they should be treated as having an equal moral status [as other more-developed human beings]” and that “it demonstrates that proponents of this claim don't actually accept it themselves.” Dudley adds: “This [the 60% miscarriage rate] should be a travesty of justice for those who believe the moral claim that all human beings have an equal status regardless of their level of development or biological properties.” Dudley's argument is a non sequitur (i.e., the conclusion does not follow logically from the premises). My reasons for thinking Dudley's argument is a non sequitur are as follows. It is surely a fact that many people who have had a spontaneous miscarriage seriously mourn over the loss and very apparently do think a human being with equal moral status has passed. I suspect that such people who have had a miscarriage probably would agree, contrary to what Dudley seems to think, that the high rate of miscarriages is a travesty of justice. Also, the (previously mentioned) intellectual fog surrounding the abortion issue (i.e., the fallacy-ridden confusion about what/who is aborted) no doubt plays a role in the thinking of many people such that the idea of public funding the prevention of embryo deaths due to miscarriage is ludicrous at the get-go. Think of it this way: unlike the cases of people with heart disease or cancer or HIV/AIDS, i.e., cases in which there is (in the public mind) a clear consensus and clarity that a human being is dying, in the case of abortion there is and has been a lack of consensus and clarity that results in it being okay to kill millions upon millions of unborn human beings. No doubt this means that pro-life efforts (including financial efforts) have been channeled into the doing of anti-abortion work instead of work having to do with preventing embryo deaths due to miscarriage. Also, it should be noted that proponents of the view that embryos are human beings with rights do accept the view that embryos are human beings with rights, but because the  well-known killing fields (i.e., deaths due to human action) occur after conception during the first nine months of pregnancy (these killing fields are of unborn children who have survived spontaneous abortion), the proponents' efforts have been focused on those later cases in which there is greater chance of achieving consensus and clarity of public moral understanding. Finally, it should be noted that the moral reasoning behind Dudley's claim is deeply problematic. From the fact that millions of human beings with great moral status are destroyed spontaneously/naturally by, say, earthquakes or other natural disasters, it does not follow at all that it's “harder” to believe that such human beings have great moral status. Think about it. The spontaneous destruction of human beings by natural accidents such as earthquakes does not weaken the right to life of other human beings or make it harder to believe they have such a right, surely. We do not think that the fact of deaths due to natural disasters justifies the deliberate killing of innocent others. Thus, the weakening or trivialization of the right to life in the prenatal context because of spontaneous abortion or miscarriage is unwarranted.

Therefore, because of the three reasons set out above, Dudley's challenge to the claim that human embryos have an equal moral status as that of other more-developed human beings does not succeed.

b. Later in pregnancy

To continue his moral-philosophical reasoning from science, Dudley takes a look at the goings-on “later in pregnancy.” Dudley sets out an image of an eight-week-old embryo (i.e., an almost fetus). Dudley acknowledges that it's a human being, biologically, plus reports that about two-thirds of abortion occur prior to this time and about one-third occur afterward. Dudley then goes on to present his (what I call) later-in-pregnancy argument as an additional argument to show that the embryo/early fetus is not a person. According to Dudley, abortion prior to brain development is not murder. Why not? Because of an analogy with harvesting organs (via organ donations) from brain-dead people. Harvesting organs from brain-dead people is not morally equivalent to killing a person because the “human being doesn't have a functional brain.” Similarly, early abortion is not the killing of a person because, even though it's a biological human being, there is no functional brain in the embryo or early fetus. Moreover, according to Dudley, this explains why the high spontaneous rate of miscarriages is not a catastrophe, and it explains why in counting conjoined twins we count the number of people by counting heads (functional brains), not bodies.

My reply/critique:

Dudley's later-in-pregnancy argument is problematic: it relies on a faulty analogy. Yes, in the cases of a brain-dead human being and a human embryo/ early fetus there isn't a “functional brain", that is, a brain that has typical brain activity. This is a similarity. But there is also a significant dissimilarity. In the case of the (truly) brain-dead organ donor the brain is kaput, never to work again, whereas in the case of the embryo/early fetus the brain is developing into a functional brain. If we don't wreck it, it WILL (probably) function. Think of it this way. If an organ donor's brain were to become functional if we do not kill the organ donor (by harvesting organs)—and we know this—then that fact would be sufficient for personhood (i.e., the right to life). Why? Because the organ donor's brain has the capacity to function. Similarly, if we do not kill the embryo/ early fetus, its brain will become functional, too—because it has the capacity to function. In fact, by six or so weeks the embryo/ early fetus has brain cells and electrical activity can be detected (for some insights about the developing brain of the embryo/ early fetus, see neuroscientist Katrina Furth's article “Fetal EEGs: Signals from the Dawn of Life”). Moreover, even if an embryo/fetus doesn't have a brain, that doesn't mean it won't get one (see the recent CBC News article “The boy without a brain is now a practical joker who loves playing Mario Kart”).  And so, contrary to what Dudley's argument by analogy would have us believe, the embryo/fetus doesn't forfeit personhood status as a brain-dead human being would. Also, the organ donor whose brain no longer works has previously given permission to kill him/her biologically if brain death occurs, whereas the human being that is the human embryo/fetus hasn't. These are relevant dissimilarities that render Dudley's analogy problematic. The embryo/ early fetus is significantly NOT like a permanently brain dead individual.

Also, if there is even some doubt that the embryo/fetus hasn't got a so-called “functional brain,” then wisdom would suggest that we err on the side of not killing what may very well be a person. As mentioned previously (parenthetically), if you are out deer hunting with your friends and you're not sure the rustling in the bushes is one of your friends or a deer, then don't shoot!

In addition, the assumption that we can know that a “brain dead” person is PERMANENTLY brain-dead should be understood not to be without exception. For examples, see “'Brain Dead' Teenager Awakens From Coma After a Family Friend Prays for Her” and “'Brain Dead' Man Recovers Before Doctors Can Take His Organs.” See, too: “Teen wakes from year-long coma,” The Record, April 8, 2003. See, too: “Woman awakens from coma after 16 years,” The Globe and Mail, January 5, 2000.

About Dudley's appeal to miscarriages, see the third point of my previous reply to Dudley's moment-of-conception argument (above).

About Dudley's appeal to counting heads (functional brains) instead of bodies on conjoined twins to determine the number of people: it's interesting, but it does not make Dudley's faulty analogy unfaulty. For the counting of heads to be relevant would require Dudley's analogy not to be faulty, but Dudley's analogy is faulty.

6. About Dudley's defense of the value of developing human life

So, according to Dudley's (faulty) arguments, the embryo and early fetus are not persons, so they do not have the right to life. Yet Dudley sets out a defense of the value of developing pre-natal human life. They have “intrinsic value,” according to Dudley. Dudley's defense goes as follows:

“Now does this mean that before this point [i.e., before the fetus's brain has developed to the point where there is a conscious being present and 'it really does seem similar to killing another person'] the developing life has no value at all? I think there are strong reasons even from a purely secular perspective to reject that conclusion. Because even if we don't think it makes sense to say a permanently-brain-dead-still-living human being has a right to life and therefore allow them to consent prior to that death to donate their vital organs, we still think that life has intrinsic value. So while we may allow them to donate their vital organs even though it may kill them, we would never agree to, say, feed them to livestock or grind them up to manufacture cosmetics. We would see it as an affront our sense that human life has intrinsic value, even if we may not view it as the same thing as killing. And the same can be said to criticize our society's widespread reliance on abortion.”

My reply/critique:

Huh? Let me get this straight. The human embryo and early fetus are like permanently-brain-dead people who are alive biologically and whom we can kill to harvest organs, and because we wouldn't use their bodies as feed or as ingredients for cosmetics, we can see that the unborn have value even though they do not qualify as persons with the right to life and are morally appropriate to kill via abortion (poisoning, dismemberment, etc.). I think all that follows from Dudley's argument is that if we do not use the bodies of the unborn for feed or cosmetics, then we should be able to harvest their organs, too. A value for life that hinges on respect for dead bodies is, to put it mildly, weird.

7. About Dudley's political recommendations

Dudley goes on to criticize various political approaches to handling abortion. He seems to have some insights (especially concerning the Mexico City Policy), but I will not consider them here. I do not wish to come across as dismissive of Dudley's political approaches, but the fact is that untangling the knots in Dudley's philosophical arguments has tired me out. Dudley seems unaware of the fine work by ethicist Charles Camosy, so I'll merely recommend Camosy to readers who are interested in the political angle.

8. VDB's final comments

Dudley's arguments do not work.

What seems to motivate Dudley is the assumption that the unborn are not persons. But such an assumption is problematic.

I will close with a portion of an article I wrote for Political Animal Magazine:

The unborn human being/fetus isn’t a “person,” so abortion is morally permissible.

Reply: Here we need to think carefully about personhood. The idea behind this pro-choice argument is that the unborn human being lacks some specific feature which makes it a person and thereby confers the right to life to it. But this approach to personhood is problematic for several reasons.

First, the so-called decisive features that are allegedly required for personhood weaken the personhood of many human beings who in fact have the right to life.

For example, if consciousness or having desires or feelings or exercising some degree of rationality is a crucial criterion of personhood, then the right to life of sleeping, stunned, or mentally disabled persons or even infants is jeopardized. The equality in equal rights gets ungrounded.

Second, pointing to a feature such as consciousness or having desires or feelings or rationality as the basis of the right to life confuses a sufficient condition for a necessary condition. Yes, if one has such a feature, then that’s enough to confer the right to life. It’s a sufficient condition or indicator of the right to life. But a question remains: What is it that is needed or necessary for such a feature to hold in the first place to ground the right to life in the cases of sleeping, stunned, or mentally disabled persons or even infants? It very much seems that the human being’s capacity for such features is necessary to make sense of conferring onto them the right to life. But this capacity is what the fetus has.

At this juncture, one might object that the mental state of the fetus is more like a permanently comatose condition or permanently vegetative state than someone who is sleeping, stunned, or mentally disabled, so just as the natural ending of one’s consciousness marks the absence of the right to life (as in the case, arguably, of the permanently comatose or permanently vegetative individual), so the fetus who isn’t conscious doesn’t yet exist as a person, so no harm is done to any person by killing a fetus via abortion.

In reply, the analogy is faulty. The state of being of the fetus is more like a non-permanent coma or non-permanent vegetative state: the fetus will awaken—if we don’t kill him/her. This is as morally significant in the case of the fetus as it is of the individual in a non-permanent coma or non-permanent vegetative state (even if that person were previously always in such a state).

Also, to push the point further (by looking at its possible negative consequences), if non-consciousness or not having desires or feelings were sufficient to justify killing a fetus, then it would be morally permissible (if medically possible) to alter a fetus’s nervous system so consciousness would never arise. This would then allow us to let the fetus grow into its later stages and be a source of body parts for the rest of us. (Think of the 2005 movie The Island, starring Scarlett Johansson and Ewan McGregor, but instead of docile intelligent clones they would be more like zombies.) But this isn’t morally permissible, surely. And this moral impermissibility counts against the view that the fetus’s non-consciousness disqualifies it for the right to life.

Third, because of reasons such as those above (and others), it’s clear that we can cast some serious doubt onto the view that a preborn human child/fetus is not a person—but if so, then we should err on the side of caution by not killing the fetus. Just as when I’m not sure whether there’s a deer or a fellow hunter behind the trees, I should err on not shooting.

9. Suggested resources

For further thinking about abortion, here is a list of some of Hendrik’s relevant work

Hendrik’s articles for Political Animal Magazine:

Perspective needed on abortion, April 2018

Pro-life replies to pro-choice arguments, April 2018

Untangling popular “pro-choice” claims and arguments concerning abortion, August 2019

Hendrik’s articles from his newspaper column (and blog) Apologia:

Steinbach’s Life Hike 2019, June 4, 2019

Shout your abortion? September 6, 2018

Planned Parenthood is a scam, May 31, 2018

Pro-life replies to pro-choice arguments, April 19, 2018

Abortion and the hard cases, March 22, 2018

Reproductive freedom versus abortion, March 8, 2018

Aborting Trudeau’s (other) abortion argument, January 30, 2018

Canada Summer Jobs kerfuffle, January 18, 2018

About my abortion columns, October 26, 2017

Resisting the Culture of Death, October 11, 2017

Ideological investigative journalism, February 16, 2017

Abortion, February 2, 2017

About outlawing abortions, November 24, 2016

Untangling abortion arguments, November 9, 2016

We need an abortion law, October 12, 2016

Beyond the abortion wars, August 8, 2016

We need an abortion law, September 3, 2015

We need an abortion law, May 29, 2014

Aborting the least of these, May 15, 2014

Euphemisms: The good, the bad, and the ugly, March 28, 2013

Reflections on Motions 312 and 408, October 4, 2012

Is the fetus a human being? May 10, 2012

Abortion in the news (part 2), November 9, 2011

Abortion in the news (part 1), October 20, 2011

On abortion, again, October 16, 2008

Acorns and oak trees…and abortion, October 2, 2008

Aborting an abortion argument, September 18, 2008

Morgentaler’s abortion of logic, September 4, 2008

Hendrik’s academic articles:

Beyond the Abortion Wars (book review) (June 2016)

Language, Logic, and the Beginning of Human Being: Francis Collins’ Fallacies (June 2018)

Some books on abortion (written by others) recommended by Hendrik

Introductory level:

Francis J. Beckwith, Abortion and the Sanctity of Human Life (College Press, 2000).

Gregory Koukl, Precious Unborn Human Persons (Stand To Reason Press, 1999).

Advanced level:

Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press, 2007).

Charles C. Camosy, Beyond the Abortion Wars: A Way Forward for a New Generation (Eerdmans, 2015).

Robert P. George and Christopher Tollefsen, Embryo: A Defense of Human Life, 2nd edition (Witherspoon Institute, 2011).

Patrick Lee, Abortion and Unborn Human Life, 2nd ed. (Catholic University of America Press, 2010).

Also, especially for Christians:

Scott Klusendorf, The Case for Life: Equipping Christians to Engage the Culture (Crossway Books, 2009). (Christians who see themselves as pro-choice should read the chapter, “Dead Silence: Does the Bible justify abortion?”)

For support for a crisis pregnancy, see your nearest Crisis Pregnancy Center.

10. ADDENDUM: Abortion and Exodus 21: 22-25

Often abortion is justified by an appeal to the Bible—more specifically, the passage found in Exodus 21: 22-25.

Exodus 21: 22-25 (NIV): “If men who are fighting hit a pregnant woman and she gives birth prematurely [or she has a miscarriage] but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows.  But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.”

The idea, it is alleged by defenders of abortion, is that the loss of a pre-natal child’s life is punished by a fine whereas the loss of the mother’s life is punished life-for-life, so, unlike the mother, the unborn does not have the status as a human person.

A powerful criticism of this use of Scripture as a defense of abortion comes from the pro-life philosopher Francis J. Beckwith.  The following is an extended direct quote from Francis J. Beckwith's book Politically Correct Death: Answering Arguments for Abortion Rights (Grand Rapids, Michigan: Baker Books, 1993), 142-144 (endnotes from page 248).

Francis Beckwith on the Argument from Exodus 21: 22-25

            This is a theological argument popular among biblical scholars.  It can be put in the following outline:

1. In Exodus 21:22-25 a person who accidentally kills a pregnant woman is given the death penalty.

2. In Exodus 21:22-25, a person who causes a miscarriage is only fined for the crime.

3. Therefore, Exodus 21:22-25 teaches both that the pregnant woman is of greater value than the unborn human she carries and that the unborn does not have the status of a person.

4. Therefore, abortion is justified.

            This argument can be criticized on four counts.  First, assuming that the abortion-rights interpretation of Exodus 21:22-25 is correct, does it logically follow that abortion on demand is morally justified?  After all, the passage says that the unborn are worth something.  In stark contrast, contemporary defenders of abortion rights seem to be saying that the unborn are worth only the value that their mothers place on them.  Hence, this passage does not seem to support the subjectively grounded value of the unborn assumed by the abortion-rights movement.  Furthermore, even if the abortion-rights interpretation is correct, the passage in question is not teaching that the pregnant woman can willfully kill the human contents of her womb.  It merely teaches that there is a lesser penalty for accidentally killing an unborn human than there is for accidentally killing her mother.  To move from this truth to the conclusion that abortion on demand is justified is a non sequitur.

            Second, the severity of an Old Testament penalty is not always indicative of the full humanness of a victim.  For example, in his important article on the Old Testament and abortion, Bruce K. Waltke writes that "it does not necessarily follow that because the law did not apply the principle of lex talionis, that is 'person for person,' when the fetus was aborted through fighting that therefore the fetus is less than a human being."  For "in the preceding case, the judgment did not apply the principle of lex talionis in the case of a debatable death of a servant at the hands of his master.  But it does not follow that since 'life for life' was not exacted here that therefore the slave was less than a fully human life."[17]

            Third, one can also raise the more general hermeneutical question, as John Warwick Montgomery has pointed out, "as to whether a statement of penalty in the legislation God gave to ancient Israel ought to establish the context of interpretation for the total biblical attitude to the value of the unborn child (including not only specific and nonphenomenological Old Testament assertions such as Psalm 51:5, but the general New Testament valuation of the [brephos], as illustrated especially in Luke 1:41, 44)."  Montgomery goes on to ask: "Should a passage such as Exodus 21 properly outweigh the analogy of the Incarnation itself, in which God became man at the moment when 'conception by the Holy Ghost' occurred—not at a later time as the universally condemned and heretical adoptionists alleged?"[18]  If the abortion-rights supporter is indeed correct in his interpretation of Exodus 21, he still has to deal with the grander context of Scripture itself, which does seem in other texts to treat the unborn as persons.

            Fourth, one can show at most that the word miscarriage in premise 2 is incorrectly interpreted to mean the "death of the fetus."  At least, there is no scholarly consensus on this interpretation.  Let us first look at Exodus 21:22-25 (RSV):

“When men strive together, and hurt a woman with child, so that there is a miscarriage, and yet no harm follows, the one who hurt her shall be fined, according as the woman's husband shall lay upon him; and he shall pay as the judges determine. If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.”

            The ambiguity of this passage is sufficient to neatly divide commentators into two camps.  One camp holds that the passage is teaching that the woman and the unborn are valued differently.[19]  According to this group, the passage is saying that if the unborn is accidentally killed, there is only a fine, but if the pregnant woman is accidentally killed, it is a much more serious offense.  Therefore, the death of the unborn is not considered the same as the death of an adult.  Some translations, such as the Jerusalem Bible, seem to support that interpretation:

“If, when men come to blows, they hurt a woman who is pregnant and she suffers a miscarriage, though she does not die of it, the man responsible must pay the compensation demanded of him by the woman's master; he shall hand it over, after arbitration.  But should she die, you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, strike for strike.”

            This interpretation, however, has been called into question by many critics.[20]  They argue that the Jerusalem Bible and other translations like it (e.g., TEV) are mistranslations and that in the Hebrew the passage is really saying that the mother and the unborn are to receive equal judicial treatment; that is, the mother and the unborn are both covered by the lex talionis.  One such critic is Umberto Cassuto, who offers the following interpretation:

“The statute commences, And when men strive together, etc., in order to give an example of accidental injury to a pregnant woman, and . . . the law presents the case realistically.  Details follow: and they hurt unintentionally a woman with child -- the sense is, that one of the combatants, whichever of them it be (for this reason the verb translated 'and they hurt' is in the plural) is responsible -- and her children come forth (i.e., there is a miscarriage) on account of the hurt she suffers (irrespective of the nature of the fetus, be it male or female, one or two; hence here, too, there is generic plural as in the case of the verb 'they hurt'), but no mischief happens -- that is, the woman and the children do not die—the one who hurt her shall surely be punished by a fine, according as the woman's husband shall lay—impose—upon him, having regard to the extent of the injuries and the special circumstances of the accident; and he who caused the hurt shall pay the amount of the fine to the woman's husband with judges, in accordance with the decision of the court that will confirm the husband's claim and compel the offender to pay compensation, for it is impossible to leave the determination of the amount of the fine to the husband, and, on the other hand, it is not within the husband's power to compel the assailant to pay if he refuses.  But if any mischief happen, that is, if the woman dies or the children die, then you shall give life for life, eye for eye, etc.: you, O judge (or you, O Israel, through the judge who represents you) shall adopt the principle of "life for life," etc.” [21]

            Gleason Archer points our that Cassuto's rendering is an appropriate interpretation because the portion of the Hebrew translated in the New American Standard Bible as "so that she has a miscarriage" (weyaseu yeladeyah) does not necessarily entail the death of the unborn, but can also mean the expulsion of a premature infant from his mother's womb, regardless of whether his expulsion results in death. [22]

            Dr. F. Michael Womack points out that “Exodus 21:22 uses a derivation of the root word yasa'.  This is not the normal word for miscarriage.  In fact, when used of children, the word refers to offspring and live birth.  In the context of Exodus 21 it refers to the premature live birth of a child or children (it is in the plural -- even multiple births are in mind).” Womack adds that “this becomes quite significant when one realizes that the normal Hebrew term for miscarriage is used in Exodus 23:26.  There the world is shakal.  It means to make childless or miscarry.”  Had the author of Exodus “intended to mean miscarry in Exodus 21, he would have used shakal.  He did not!  Exodus 21, therefore, based on simple lexical definitions, promotes life in the highest possible fashion.” [23]

            Hence, Exodus 21:22-25 is saying that if the incident in question results only in a premature birth, the perpetrator should be fined.  However, if “harm follows” (that is, if either the mother of the child is injured or killed), the same should be inflicted upon the perpetrator.

            In summary, since the interpretation of Exodus 21:22-25 is at best divided,[24] and since the Bible's larger context teaches that the unborn are persons, it seems rather foolish for the abortion-rights advocate to put all his ideological eggs into one dubious biblical basket.[25]

Endnotes (for Beckwith passage)

            17. Bruce K. Waltke, “Reflections From the Old Testament on Abortion,” Journal of the Evangelical Theological Society 19 (1976):3.  Although appearing to accept the pro-choice interpretation of the Exodus passage, Waltke takes a strong pro-life position and denies the abortion-rights inference that this passage supports legalized abortion on demand.

            For a journalistic, though somewhat misleading, review of the theological debate, see Jefferey L. Sheler, “The Theology of Abortion,” U.S. News & World Report (9 March 1992): 54-55.  I would like to thank Dr. F. Michael Womack, Pastor of Calvary Baptist Church (Erwin, Tennessee), for bringing this article to my attention.

            18. John Warwick Montgomery, “The Christian View of the Fetus,” in Jurisprudence: A Book of Readings, ed. John Warwick Montgomery (Strasbourg, France: International Scholarly Publishers, 1974), 585.

            19. For example, see Ronald E. Clements, Exodus, Cambridge Commentaries on the New English Bible (Cambridge: Cambridge University Press, 1972), 138; J. Phillip Hyatt, Exodus, New Century Bible (London: Oliphants, 1971), 233; Walter R. Martin, Abortion: Is It Always Murder? (Santa Ana, Calif.: Vision House, 1977); Martin Noth, Exodus: A Commentary, trans. J. S. Bowden (Philadelphia: Westminster, 1962), 181; J. Coert Rylaarsdam, “Exodus,” in The Interpreter's Bible, ed. George Arthur Buttrick, et al. (New York: Cokesbury-Abingdon, 1951-57), 1:999; and Bruce K. Waltke, “Old Testament Texts Bearing on Abortion,” Christianity Today (8 Nov. 1968): 99-105.

            20. For example see Gleason Archer, Encyclopedia of Bible Difficulties (Grand Rapids: Zondervan, 1982), 246-49; Umberto Cassuto, A Commentary on the Book of Exodus, trans. Israel Abrahams (Jerusalem: Magnes, 1967), 275; C. F. Keil and F. Delitzslch, “The Second Book of Moses: Exodus,” in The Pentateuch, vol. 1 of Commentary on the Old Testament (Grand Rapids: Eerdmans, 1980; reprint of 1864-1901 ed.), 135; Meredith G. Kline, “Lex Talionis and the Human Fetus,” Simon Greenleaf Law Review 5 (1985-86): 73-89; and Montgomery, “The Christian View of the Fetus,” 585-87.

            21. Cassuto, Commentary of the Book of Exodus, 275.

            22. Archer, Encyclopedia, 247.

            23. Personal letter from Dr. F. Michael Womack (13 March 1992).

            24. There is a third interpretation of this verse, defended by both Davis (Abortion and the Christian) and Kline (“Lex Talionis and the Human Fetus”), two pro-life theologians.  Since, however, my main focus is simply to call into question the so-called pro-choice interpretation of Exodus 21:22-25, it is not necessary for me to bring up yet another view that undermines the abortion-rights position.

            25. A portion of Wennberg's work on abortion (Life in the Balance) was instrumental in my discovery of the differing views on Exodus 21:22-25.