ADF Alliance Alert

Common sense tells us that a mother and child are in a loving rather than adversarial relationship, that the child did not attack or invade anyone, and that, as mentioned, pregnancy is not a “risk” of sex, but its natural goal.

by Matt Bowman
an attorney with the Alliance Defense Fund

Law professor Sherry F. Colb has posted another article on Findlaw titled, Abortion, Sarah Palin’s Amniocentesis, and the Pro-Life View of Sex, in which she explores the abortion debate. One wonders when Findlaw is going to publish some pro-life legal commentaries.

As elsewhere, Colb approaches her pro-life adversaries much like a renowned anthropologist might examine an exotic tribe on a heretofore undiscovered island. She sees many segments of her subject, some in great detail, but all from the outside and without a unifying principle.

But perhaps, Prof. Colb is not merely like that anthropologist. She publicly advocates abortion—her purpose is not merely to observe but to deconstruct. She is rather like an anthropologist seeking candidates for subjugation.

Prof. Colb skips several logical steps in disputing what she describes as pro-life arguments. Her project is at times admirably systematic: she gives several premises and proposes to examine each in order. So she suggests that people may oppose abortion because they think preborn children are persons, and also because they view sex as consenting to pregnancy if it might occur. In this article, she argues against the second reason.

Her primary logical flaw, among several, comes in assuming that the two premises are independent. Of course, she states at the outset that they are independent, but later in the article she treats them, and those she claims hold them, as falling prey to her refutation of only the second premise. Yet even if she could show that “many” or most pro-lifers believe that sex is consent to pregnancy, it doesn’t mean that their arguments against abortion fall short.

Colb argues that since the chance of pregnancy is low as the result of sex, sex cannot be considered an act of consent to pregnancy. But there need not be only two options: either “I consented to this child in me and cannot kill him,” or “I did not consent to this pregnancy and can kill the child.” There is at least the possibility that the level of “risk” taken should be weighed on a scale against the kind of action that may be justified in rejecting the child. Ripping a child’s arms and legs off is the most extreme rejection of the child possible, and it places a very high burden on the woman to show that it is justified. Just showing that a woman didn’t “consent” is not sufficient. And of course there is the possibility that the child’s personhood excludes murder as an option even if the woman didn’t “consent.”

Colb also hearkens back to her argument that since pro-lifers accept a “life of the mother” exception for abortion, this necessarily weakens their position or constitutes a concession that the child is less than a person. But the concession doesn’t follow. This exception can be framed in such a way that doctors must try to save both lives, or to try to remove and save the child rather than dismember him, even foreseeing that the child probably won’t survive, but still not killing him or intending his death. An exception in law also needs to be distinguished from the belief about the child in principle: the law is a blunt instrument and is not always capable of making fine philosophical distinctions. One might contend that the child is a person but that the law can do no better than allow “abortion” under a strictly written “life of the mother exception.”

Finally, Colb seeks to turn pro-lifers against vice-presidential candidate Sarah Palin for reportedly obtaining an amniocentesis to confirm her son Trig’s diagnosis of Down’s Syndrome, because amniocentesis has a risk of miscarriage. After all, Colb argues, if sex is consent to pregnancy, then by amniocentesis Palin “consented to an abortion.” There is a sliver of truth here in that amniocentesis may very well be a risk not worth taking and is usually a search and destroy mission against children with disabilities. Colb herself argued, judgmentally, that Palin probably thought she might get an abortion—not just that it glanced across her mind but that she seriously considered executing Trig, even if momentarily.  Beyond this presumptuous and condescending statement, however, Colb’s argument is wrong on its own terms. The risk she lists for amniocentesis is much tinier than the “risk” of pregnancy from sex, distinguishing it from her “consent” argument. Moreover, Colb is using the word “abortion” equivocally. The regulated act that pro-lifers oppose is intentional butchery, but what Palin risked was accidental, 1/500 chance of spontaneous labor—not “consent” to abortion in any relevant sense. And even if I reject the amniocentesis risk in general, we don’t know what the doctor told Palin about amniocentesis or what her situation was, or what kind of calculus she went through in undergoing the procedure. Finally, the two situations aren’t comparable because pregnancy is not a “risk” of sex, it is an inherent end and fulfillment. Spontaneous labor from amniocentesis is unintended and outside the scope of the activity, or at worst it may be some level of negligence. Abortion, meanwhile, is murder.

Colb’s description of abortion in terms of self-defense and pregnancy as an invasion is a very old and thoroughly refuted argument. See for example, The Moral Question of Abortion by Stephen Schwarz, and an article by Francis Beckwith and Steven Thomas here. Common sense tells us that a mother and child are in a loving rather than adversarial relationship, that the child did not attack or invade anyone, and that, as mentioned, pregnancy is not a “risk” of sex, but its natural goal. Colb’s assumptions to the contrary underlie her arguments, and expose them as inhuman impositions drawn from radical feminism and individualism. And Colb’s cloaking of abortion as merely a withdrawal of consent is an irresponsible avoidance of its brutal, bloody reality.