Over the past few weeks, I’ve been involved a very slowly developing exchange with Alex Holzbach, a blogger who is a Christian libertarian anti-abortion activist and an editor of the Tumblr Politics tag. He recently responded to a post in which I challenged him to specify the source of the human rights of fetuses (and where I explained my argument that allows for some abortions insofar as some fetuses do not have higher brain function and thus should not properly be understood as the bearers of rights).
And here is what he says:
The difference between the life of a fetus and the life of a plant is the inherent humanity of the fetus. Of course both humans and plants are alive, but they are not equal in value. Although this belief can be (and usually is) taken from a moral perspective, it can be taken as a legal one through documents like the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Just like I have done, the Founders have agreed – with no real explanation – that humans are set above animals in importance. When I argue my case against abortion, I make the assumption that the reader agrees that human life is more valuable than plant life or animal life.
Unfortunately, this appeal to the self-evident nature of human rights is not properly an argument, nor does it give us any chance at furthering our discussion. It is, effectively, a means to shut down the conversation, akin to saying, “I just believe this.” And, as Alan Gewirth rightly noted, in discussing Jefferson’s intutionist answer regarding the source of our rights, “it would not serve at all to convince the many persons throughout history who have had different intuitions on this question” (5).
What’s more, Holzbach has effectively made my entire argument for me … since my line of questioning began when I asserted that the central problem with his position was that it relied on his own religious beliefs. In particular, I wrote:
Since he doesn’t specify what he takes to be the source of human rights anywhere that I can find, I’ve presumed that his source is religious, as he frequently notes that he is religious. Thus, despite saying that he doesn’t believe that his religious preferences should impact legislation, at bottom my argument is that he must specify what it is about humans that gives them their rights (in a non-religious way) or else he’s doing precisely that.
If he relies on Jefferson’s intutionism to answer my question, he surely must recognize that Jefferson — in the quote he chose to use — appealed to a “Creator” who “endowed” people with “certain unalienable rights.” That’s clearly a religious foundation for the human rights that Holzbach asserts the government must protect and so his appeal for governmental intervention is thus a religious one, despite his avowed commitment to legislating against abortion only on the basis of a scientific understanding of human rights. The only conclusion to be drawn here is that he doesn’t have a scientific answer to my scientific argument so he appeals to the authority of the Declaration of Independence, thereby directly demonstrating that his legislative preference is bound up with his religious belief.
The remainder of Holzbach’s response is given over to a discussion of the so-called capacity argument. That is, if I argue that dignity (and the rights that flow from it) requires higher brain function (which is the only way persons could possibly be self-aware and thus claim their rights), he will argue that fetuses will someday have dignity because they have the capacity for higher brain function:
I can see your counterpoint from a mile away: “the fetus is not self-aware!” Of course it’s not. The fact of the matter is, all humans have the inherent capacity to be self-aware. At some times, not all humans are expressing this ability: such as a man with PVS.
Just because the man (and the fetus) can’t currently express their inherent ability to be self-aware does not mean that they are any less human. This can be said of those with extreme mental disabilities or the mentally insane as well; just because they don’t express their abilities doesn’t mean they don’t have the innate capacity to do so; and this innate capacity is what places humans at higher importance.
To begin, I think that Holzbach misstates my position: I’m not arguing that fetuses and PVS patients aren’t human; they very clearly are. I’m arguing that they’re not persons and that it’s personhood that is relevant. As I wrote in the post to which he is responding:
I think human life alone is not enough to provide us with rights, that a heartbeat — which can be accomplished now by machines — doesn’t require governmental action on my behalf. Indeed, in the cases at issue here, the idea of “my” in “my behalf” doesn’t really have any meaning, as without higher brain function, I cannot conceive of myself at all. That’s why I argue that our rights hinge not simply on our bodily functions but on our dignity. Certain fetuses, on my reading, cannot properly be understood to be bearers of dignity and are thus not the bearers of rights.
Of course, in saying that these fetuses cannot be the bearers of dignity, I still run into his capacity argument. In other words, they might not have dignity now but they have the capacity for dignity later. Nathan Nobis, a philosopher at Morehouse College who blogs at In Socrates’ Wake, does a nice job of outlining the central problem for the capacity argument:
(1*) Fetuses have all of the essential capacities of [conscious, sentient, emotional, communicative beings], in latent form.
(2*) If an entity possesses [in latent form] all of the essential capacities of [conscious, sentient, emotional, communicative beings], that entity is a [conscious, sentient, emotional, communicative being].
(3*) [Therefore] fetuses are [conscious, sentient, emotional, communicative beings]. (1,2)
(4*) [Conscious, sentient, emotional, communicative beings] have the right to life.
(5*) The right to life usually trumps other rights.
(C*) [Therefore] Abortion is usually immoral.
(1*) now is true in many cases, yet (2*) seems false since it basically says that potential X’s are actual X’s. So these premises are an unsound argument for (3*) which is empirically false anyway, if we are talking about early fetuses.
Nobis substitutes “conscious, sentient, emotional, communicative beings” for “persons” here in order to be more specific about the topic at hand. For my argument, I actually don’t require a fetus to possess all of those features of personhood in order for it to have dignity (and thus rights) so the bar is actually lower. All I need for my argument is higher brain function, from which all of these things might eventually follow.
So my argument will simply substitute “beings that evince higher brain function” for “conscious, sentient, emotional, communicative beings.” But we see the same issue:
(1**) Fetuses have all of the essential capacities of [beings that evince higher brain function], in latent form.
(2**) If an entity possesses [in latent form] all of the essential capacities of [beings that evince higher brain function], that entity is a [being that evinces higher brain function].
(3**) [Therefore] fetuses are [beings that evince higher brain function].
(1**) remains true in many cases and (2**) still seems false since it makes the claim that potential X’s are actual X’s. Thus, these premises represent an unsound argument for (3**) which is clearly empirically false anyway, if we are talking about early fetuses (which are the fetuses that concern me, given my argument about higher brain function).
Put as simply as possible, beings with the capacity for higher brain function are just obviously not the same as beings that evince higher brain function. The latter are the bearers of rights; the former are not.
Finally, Holzbach concludes as follows:
If you are right and human rights are grounded in expressed higher brain function, then nothing happens. In this case, women have simply been exercising a right to kill a sub-human entity. But if I am right, over 1 million humans (with rights) are being killed every single year. Because we cannot agree on which position is correct (and there is no way to definitively prove either of us right or wrong), should we not err on the side of caution? If you are right and abortion is banned, women lose their right to kill a human animal (which isn’t that bad of a right to lose, considering there are numerous regulations against the killing of some animals). But if I’m right and abortion is banned, millions of lives are saved every single year. What reasoning do you have to go against this belief in erring on the side of caution? Neither of us is definitively right, so logic would tell us to adopt the policy that has the least negative effect.
Holzbach here takes the position of Blaise Pascal, who famously argued that holding the incorrect belief in the matter of God’s existence won’t matter at all if God does not exist but will matter a great deal if God does exist. Therefore, in Pascal’s eyes, the best bet would be to believe in God since nothing is lost by believers if God turns out not to exist (infinite nothingness) whereas a great deal is lost by non-believers if God turns out to exist (infinite damnation).
His wager, then, is that if we ban abortion and I’m right/he’s wrong about human rights, then nothing is lost except some people’s ability to kill those humans who are not yet the bearers of rights. If we do not ban abortion, and if I’m wrong/he’s right, then we allow the murder of those human beings who cannot yet express the rights they hold.
The trouble, of course, is that Holzbach is patently wrong when he claims that nothing is lost if we ban abortion and he turns out to be wrong about human rights. And he is wrong in a way that is quite telling: he entirely ignores the rights of women. If we encourage the government to ban abortion, we are encouraging the government to limit the liberties that women have when it comes to their bodies; there is no way to get around the fact that this is an infringement — and quite a serious one — on their rights. If he is right, then it’s a necessary infringement, though a regrettable oe (for some), of the sort of that comes up whenever rights come into conflict with one another. In this case, the rights of the fetus would trump the rights of the mother. But if I’m right — and by my reasoning above Holzbach has not succeeded in demonstrating that I am wrong — then encouraging a governmental ban on abortion is an unnecessary and deeply problematic infringement on the rights of women. Those rights, very much unlike the rights of the fetus, are not in doubt in any way. In the end, Holzbach doesn’t seem to recognize the rights of women here, or — if he does — he chooses not to assign them any weight at all in his discussion.