I am a long-time student of Ayn Rand’s philosophy of Objectivism, and I draw more heavily from that philosophy, by far, than any other for my own philosophy. Indeed, the present essay draws heavily on the ethics and politics of Objectivism. Nevertheless, I have come to disagree with Ayn Rand on the subject of abortion. The purpose of this essay is to present my own position and to encourage others, especially admirers of Ayn Rand, to give careful consideration to their own position on this subject.
My argument on the morality and politics of abortion rests on answers to the following questions.
1. What is the moral responsibility of a parent?
2. What are rights? Do rights vary over the course of a human life? If so, how do they vary? In particular, what are the rights of children?
3. What is the pivotal individuating aspect of a human being?
4. What is a soul? When does a soul come into existence?
5. What is the progression of potentialities to actualities in a human being, and what is the pivotal actuality pertaining to rights?
6. In concrete, practical terms, when is abortion immoral, and when should it be illegal? What exceptions are there?
From the questions above, a thoughtful reader can surmise much about my answers and my final conclusion, which is summarized as follows. The full argument will follow the summary.
Summary
A parent has the moral responsibility to provide his child with the means to flourish as much as possible. A child’s right to life entails a moral claim on his parents to keep him alive and healthy until adulthood. Over that time, the child acquires progressively more of the rights to liberty and property—along with derivative rights—until he acquires the full array of individual rights of an adult, at which time his claim on his parents ends. The pivotal individuating aspect of a human being is the persisting conscious entity—which emerges from and remains dependent on a physical entity—that we can call a soul. We do not know when a soul comes into existence, but evidence indicates that it probably comes into existence sometime between the formation of the embryo and the event of birth—and probably not before the first activity of the brain. The soul is the pivotal actuality, so long as it is accompanied by the potentiality of reason and volition, that endows the first form of rights on the individual. Like a child, an ensouled fetus has a moral right to life and a moral claim on his parents to sustain his life until adulthood. Once the fetus is ensouled, abortion is (monstrously) immoral and should be illegal. Because no one knows precisely when ensoulment occurs, abortion is immoral once there is a reasonable possibility that ensoulment has occurred. That threshold of reasonable possibility is reached when any kind of brain activity—even activity of lower, primitive parts of the brain—begins, usually after seven weeks gestational age of pregnancy (as this article explains, along with basic terms such as “zygote” and “embryo”). Because pregnancy can normally be detected well before seven weeks in the U.S. currently, and because there normally is no rational reason to postpone an abortion past that time, seven weeks or brain activity is a reasonable threshold past which abortion should be considered a crime on the order of reckless endangerment. After 24 weeks—when higher parts of the brain have formed and are functioning, and when there is strong evidence of some kind of consciousness—ensoulment is highly possible, if not probable, and therefore abortion should be classified as a more serious form of endangerment. (What I mean by “highly possible” in this context is that the probability of ensoulment is at least of the order of magnitude of the probability of the contrary.) Because it is not certain, given the present state of scientific knowledge, that ensoulment occurs before birth, abortion should not at this time be classified as murder.
These numbers of weeks are based on my layman’s understanding of current conditions in the U.S. and of current scientific knowledge, and are subject to refinement and amendment accordingly. But the guiding factor is ensoulment: what ensoulment is, when ensoulment is possible, and when ensoulment is probable.
Exceptions should be allowed if serious unpredictable medical risks, greater than the medical risks of childbirth, to the mother arise after possible ensoulment; to justify such an exception morally and legally, the risk to the mother must be at least as great and demonstrable as the risk to a gun owner justifying his shooting of an attacker. Regarding cases of ensouled individuals with severe physical or mental impairments, those cases are morally and legally equivalent to cases of born children with severe impairments and should be treated accordingly.
Let us consider this argument in depth.
What is the moral responsibility of a parent?
In her essay, “Of Living Death,” Ayn Rand writes ([1968] 1990, 47–48),
Dealing with the subject of birth control, the encyclical [Humanae Vitae by Pope Paul VI] prohibits all forms of contraception (except the so-called “rhythm method”). The prohibition is total, rigid, unequivocal. It is enunciated as a moral absolute.
Bear in mind what this subject entails. Try to hold an image of horror spread across space and time—across the entire globe and through all the centuries—the image of parents chained, like beasts of burden, to the physical needs of a growing brood of children—young parents aging prematurely while fighting a losing battle against starvation—the skeletal hordes of unwanted children born without a chance to live—the unwed mothers slaughtered in the unsanitary dens of incompetent abortionists—the silent terror hanging, for every couple, over every moment of love. If one holds this image while hearing that this nightmare is not to be stopped, the first question one will ask is: Why? In the name of humanity, one will assume that some inconceivable, but crucially important reason must motivate any human being who would seek to let that carnage go on uncontested.
So the first thing one will look for in the encyclical, is that reason, an answer to that Why?
—Ayn Rand. 1990. “Of Living Death,” part 1, The Objectivist, September 1968 (published December 1968), 534. Republished in The Voice of Reason: Essays in Objectivist Thought. New York: New American Library.
The above passage does not further Ayn Rand’s argument against the encyclical except to offer motivation—that is, to argue that the matter is of great importance. The following section of the present essay is offered in the same spirit of motivation, while also laying groundwork for understanding the rights of children.
The value of a child to a parent is incalculable. The parent sees the child make innumerable moral choices, small and large. The parent sees innumerable examples of the child loving the world and loving life. These innumerable experiences show the parent in the most thorough and intimate manner the morality and moral worth of the child. Given this context of a parent, no moral judgment is more certain than that the parent’s child deserves life and the opportunity to flourish. No one’s flourishing conveys the benevolence of the universe as much, or brings more joy to the parent.
A parent’s child is the parent’s best teacher of hierarchy and context of knowledge, because the parent witnesses the real-world effect of each new bit of the child’s experience and knowledge. The child, a fragile and impressionable human life, teaches perspective: what is crucial for survival, what is important for survival, and what is not. And the child offers the parent the best and most rewarding opportunity to grasp—and experience emotionally—the context of another.
Moreover, having children is an adult’s most thorough means to validate and transmit his wisdom to the next generation and thereby to witness the further, enduring fruit of that wisdom.
For these reasons, it is in the parent’s rational self-interest to provide his child with the means to flourish as much as possible—at least more than the parent did, commensurate with the child’s own abilities and moral choices. Some of these means are physical—things such as food, shelter, and clothing. More important means are intellectual and spiritual—in particular, education and love.
Montessori educator Charlotte Cushman told me,
There is something else about raising kids that is so joyful. Seeing their first response to the world—first reaction to an animal, their excitement at going to the zoo, their reaction when you take down the Christmas decorations (my daughter cried), their effort at learning something new, their first dentist appointment, and so on. You see their values develop, and their reactions to things remind you of your own childhood.
In the short essay, “Fathers and Sons, American-Style,” historian C. Bradley Thompson writes,
Fathers give sons that first and lasting glimpse of what manly honor is and why it matters.
In the end, it comes down to this: a good father shows his son how to be a man. This is why we all live with the fear that we haven’t lived up to the moral expectations of our fathers. It haunts us. This is why men can’t talk about their fathers. Our reverence cuts too close to the very core of who we are as men. Boys love their fathers too much to talk about them.
As a son, I live and will probably always live in the shadow of my father—even after he is gone. As a father of two sons, I live with the happy expectation that they will surpass me in all that they do. The wheel turns, and so it goes.
Prof. Thompson’s substack contains numerous beautiful entries about his experience as son, husband, and father. See, for instance, this one and this one; and browse his substack for others.
With extreme regret, I have no children. A parent undoubtedly can write a more cogent, eloquent argument than I can for parenthood. But my not being a parent, and yet having written the foregoing, shows that a rational adult should understand much virtue of having a child even before the child is born.
If an adult is not willing to make the degree of commitment commensurate with the values presented above, then he should not choose to have children.
The foregoing passage implicitly addresses the principle of justice as applied to the proper regard of a parent toward his child. Grasping that the matter is a matter of justice, the foregoing prescription for how a parent is to regard his child is not merely a good idea or a moral option—but is rather a moral responsibility, to the child and to oneself.
The only Objectivist I know of who has written on the ethics and politics of the rights of children and their parents is Prof. Thompson. See his ten-part series of essays beginning with this one. The series focuses on rights pertaining to education, but that topic requires identifying rights of children and parents more fundamentally. See, in particular, “The Redneck Guide to Children’s Rights“ (the eighth essay in the series) and “Children’s Rights Defined and Defended” (the ninth). These essays illustrate how an objective historian uses history to anchor his inquiry. In my present essay, I have benefited from this anchoring and from the results Prof. Thompson gleaned therefrom.
What are rights? Do rights vary over the course of a human life? If so, how do they vary?
In particular, what are the rights of children?
The best identification I have read on the meaning of rights appears in the essay, “Man’s Rights,” by Ayn Rand (1964, 110), building on her Objectivist ethics presented in her book, The Virtue of Selfishness. Consider this passage:
A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action—which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty and the pursuit of happiness.)
The concept of a “right” pertains only to action—specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.
Thus, for every individual, a right is the moral sanction of a positive—ofhis freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights.
—Ayn Rand. 1964. The Virtue of Selfishness. New York: New American Library.
In the same essay, Ayn Rand (1964, 114–115) writes,
There are no “rights” of special groups, there are no “rights of farmers, of workers, of businessmen, of employees, of employers, of the old, of the young, of the unborn.” There are only the Rights of Man—rights possessed by every individual man and by all men as individuals.
Unless I misunderstand its meaning, the paragraph directly above is where I begin to disagree with Ayn Rand on the nature of rights, because I do think that there are rights of the young.
In the present essay, it is not my purpose to rehearse Ayn Rand’s entire ethics and theory of rights, or to present my own full argument for individual rights. Either task would take a book, as Ayn Rand wrote whole books presenting her ideas on these matters. Instead, I will focus on the two salient ideas that are different in the special case of children: the idea that reason is man’s basic means of survival, and the idea that rights are rights to action. From a careful consideration of these differences, it will become clear how to apply the principle of the rights of man to the case of the rights of children.
Ayn Rand’s (1964, 22–23) conception of rights depends on the fact that “For man, the basic means of survival is reason.” (From “The Objectivist Ethics,” reprinted in The Virtue of Selfishness.) Reason will be the infant’s means of survival once the infant is an adult. Moreover, the infant must begin to use his faculty of reason—and act accordingly—as soon as he is born (or soon after), in order to make himself ready for adulthood. Furthermore, the infant’s faculty of reason will play a progressively greater role in his survival as he matures. Nevertheless, the infant’s basic means of survival while he is an infant is the reason of his parents.
A child’s moral choices—his choices to focus his mind and thereby to learn—are not enough to sustain his life in the present. Nevertheless, such moral choices are as moral as an adult’s moral choices. Moreover, a newborn deserves—as much as an adult deserves—the chance to make moral choices. Therefore, a child deserves—as much as an adult deserves—to live. But a child cannot live on his own reason and his own actions as an adult can.
The burden of caring for those who cannot care for themselves must not be forced on individuals without cause. But it was the parents who brought their child into existence in his current, dependent situation. That act is enough for the child’s right to life to include a legal as well as a moral claim on the parents to sustain the life of the child until he reaches adulthood.
Let us re-state this conclusion in terms of the philosophical principles that validate the concept of man’s rights. Human life requires that a child be sustained while his faculty of reason and volition (volition being inextricable from the faculty of reason) are developing. Individual rights to action are of no use to any individual if he can be killed or left to die before his reason and volition constitute his basic means of survival. That the individual’s life be sustained by his parents before he reaches adulthood is as much an objective requirement for human life as is the adult individual’s right to action in accordance with his right to life.
Observe also that a child’s right to life does not include the rights to liberty, property, and other derivative rights (such as the right to make purchases and sales and enter into contracts) to the degree that these derivative rights apply to adults. The parents properly have the moral and legal responsibility to restrict the child’s liberty and to control property in the child’s name, in accordance with the rational judgment of the parents. That is, while having a moral and legal claim on the parents, the child is also morally and legally subordinate to the parents. This subordination is of a particular kind. In matters concerning the child, the parents morally must act primarily in the rational interest of the child, not themselves. (Of course, these interests are not in conflict, but the interest of the child must be the guiding moral purpose in matters pertaining to the child. To take a mundane example, if you have enough money to save only your own teeth or only your child’s teeth, you save your child’s teeth.) That is, the parents must be a paternal and a maternal dictator (something that governments must never do).
Prof. Thompson makes points similar to the foregoing in the essay, “Children’s Rights Defined and Defended,” referenced earlier. Note in particular these paragraphs:
But a child’s right to life is somewhat different from that of an adult. An adult’s right to life is both more and less expansive than a child’s (and vice versa). An adult’s right to life includes, for instance, the right to liberty, which means the freedom to take those actions necessary to live and to govern oneself, both of which are metaphysically inaccessible to children (e.g., as relative to infants and toddlers) who are incapable of taking the actions necessary to live independently. In other words, a child’s right to life does not include the adult’s right to liberty.
…
Anglo-American law recognizes a child’s legal right to life through the legal mechanism known as a trusteeship, which is held by parents or guardians. By choosing to create and bring a child into the world, parents assume certain fiduciary obligations that are analogous to a particular kind of contract recognized in law: third-party beneficiary contracts. This is an implicit contract between parents and the government and is recorded via a parent’s application for a birth certificate. As third-party beneficiaries, children are not a party to the contract, but they are the intended beneficiary of the contract.
This kind of moral and legal relationship between parent and child should be a matter of course in a rational, civilized society. The question now at hand is, “When does this kind of relationship begin? Does it begin at birth, or in the womb?”
What is the pivotal individuating aspect of a human being?
In some physical ways, a fetus is a part of the mother. In other physical ways, the fetus is a distinct, individuated organism. Robert P. George and Christopher Tollefsen, in their book, Embryo: A Defense of Human Life (Second Edition), make a conclusive case that an embryo—let alone a fetus—is an early form of a human life and is more fundamentally a physically distinct, individuated organism than it is a physical part of the mother. But the physical issue is beside the point, in my judgment. (Whenever I write “in my judgment,” it is not to hedge my conclusion but rather to differentiate my argument from conventional wisdom.) The pivotal individuating element of a human being is his consciousness. (Conjoined twins who share a body are two individuals.) This fact is the entire basis for understanding that the individual is more fundamental than any collective or society of individuals. There is no group mind or group experience, only individual minds of individual human beings, each with its own unique identity and its own conscious experiences. Likewise, this fact is an unassailable basis for the unambiguous, unassailable conclusion that a fetus is an individuated human being once it possesses a faculty of consciousness, if not before.
But when does consciousness come into existence? An academic journal article by Bayne et al. (2023, 1135–1136) states,
There is, however, no consensus as to when consciousness first emerges and the range of candidate answers offered here is extremely wide. At one end of the spectrum are accounts that suggest that consciousness might be in place from as early as 24 to 26 weeks gestational age (see Glossary), which is when thalamocortical connectivity is first established [2,3]. At the other end of the spectrum are accounts according to which consciousness is unlikely to be in place significantly prior to the child’s first birthday [4]. In between, of course, lie a wide range of possible accounts, including the view that consciousness arises soon after birth [5], perhaps even during the process of birth itself.
… Although it would be premature to make definitive claims about when consciousness first emerges, we suggest that current evidence indicates that consciousness is likely to be in place by early infancy, and may even begin before birth.
The regions of the brain that seem to exhibit electrical, brain-like activity after about seven weeks of pregnancy (gestational age) are usually (but see later) not considered linked with consciousness. On the other hand, the cerebral cortex—which is closely linked to consciousness—begins to form after about seven weeks and exhibits detectable electrical activity at about 24 weeks. Moreover, states Bayne et al. (2023, 1138),
Although the four theories discussed here differ in significant respects, they converge on the importance of the thalamocortical system for sustaining consciousness, a structure that is widely, although not universally [124], regarded as a prerequisite for consciousness. If it is granted that a functioning thalamocortical system is necessary for consciousness, then an early (i.e., ‘not before’) limit can be set on the emergence of consciousness of around 24–26 weeks gestation.
Much if not most of the difference of opinion on when consciousness emerges is based on different opinions on what consciousness is. Many of the theories that argue for late onset of consciousness hold that consciousness entails integrated perception of objects or even conceptualization. (Bayne et al. 2023, 1138.)
Krueger and Garvan (2014, 162) write, in “Emergence and retention of learning in early fetal development,”
Prior research has demonstrated that the late-term fetus is capable of learning and then remembering a passage of speech for several days, but there are no data to describe the earliest emergence of learning a passage of speech, and thus, how long that learning could be remembered before birth. This study investigated these questions. Pregnant women began reciting or speaking a passage out loud (either Rhyme A or Rhyme B) when their fetuses were 28 weeks gestational age (GA) and continued to do so until their fetuses reached 34 weeks of age, at which time the recitations stopped. Fetuses’ learning and memory of their rhyme were assessed at 28, 32, 33, 34, 36 and 38 weeks. The criterion for learning and memory was the occurrence of a stimulus-elicited heart rate deceleration following onset of a recording of the passage spoken by a female stranger. Detection of a sustained heart rate deceleration began to emerge by 34 weeks GA and was statistically evident at 38 weeks GA. Thus, fetuses begin to show evidence of learning by 34 weeks GA and, without any further exposure to it, are capable of remembering until just prior to birth.
In my judgment, the above experiment is strong evidence for at least a rudimentary form of human consciousness before birth.
Recall from Bayne et al. above that “the thalamocortical system … is widely, although not universally [124], regarded as a prerequisite for consciousness.” The noted exception, “[124],” is Bjorn Merker (2007), “Consciousness without a cerebral cortex: A challenge for neuroscience and medicine,” Behavioral and Brain Sciences (2007) 30, 63–134. In this article, Merker writes about, among other things, children born without a cortex—a condition called hydranencephaly. Merker writes (2007, 78),
most cortical areas are simply missing in hydranencephaly, and with them the organized system of corticocortical connections that underlie the integrative activity of cortex and its proposed role in functions such as consciousness (Baars et al. 2003; Sporns et al. 2000).
Yet, reports Merker, these children are conscious. He concludes, in part (2007, 80),
The evidence and functional arguments reviewed in this article are not easily reconciled with an exclusive identification of the cerebral cortex as the medium of conscious function. They even suggest that the primary function of consciousness – that of matching opportunities with needs in a central motion-stabilized body–world interface organized around an ego-center – vastly antedates the invention of neocortex by mammals, and may in fact have an implementation in the upper brainstem without it. The tacit consensus concerning the cerebral cortex as the “organ of consciousness” would thus have been reached prematurely, and may in fact be seriously in error.
Most of the numerous peer responses published along with Merker’s paper were positive. The few negative comments I gleaned were along the lines of this one by Alain Morin (2007, “Consciousness is more than wakefulness,” 99):
In the target article Merker wisely starts by explaining what his view of consciousness is. He defines consciousness as “a state of wakefulness . . . which typically involves seeing, hearing, feeling, or other kinds of experience” (sect. 1, para. 1) but excludes reflective awareness (i.e., being “aware that one is seeing, hearing, and so forth”; sect. 1, para. 6). As such, consciousness is equated with wakefulness and responsiveness to one’s environment, and the reader is indeed tempted to concur with the author that consciousness results from activity of subcortical and brainstem mechanisms. In other words, the proposal that consciousness, as defined here, is possible without a cortex does not seem particularly ground-breaking and has been supported by neurophysiological evidence for quite some time now (as Merker extensively documents in the target article).
Thus again, the main difference of opinion is regarding the meaning of the term “consciousness.” For the purpose of my present essay, “a state of wakefulness . . . which typically involves seeing, hearing, feeling, or other kinds of experience” is the relevant meaning. Indeed, “reflective consciousness” is not likely to emerge until years after birth.
Therefore, now we have a whole different ball game, so to speak, by unpacking what researchers mean by “consciousness.” Instead of an early (lower) bound of 24 weeks for the emergence of consciousness, we now have the possibility of consciousness as early as seven weeks based on the onset of electrical activity in the brain.
What is a soul?
At present, no one knows how consciousness comes into existence, except that it arises somehow out of some physical, biological existence. Because it arises from biological life, consciousness is sometimes called an emergent property of life. But consciousness is more than an emergent property. An instance of consciousness—that is, a conscious experience—is indeed a property of the living thing that has the conscious experience. But the concept “consciousness” has other meanings in addition to referring to a specific event. Consciousness also means a persisting process or faculty. But consciousness, at least in humans, means more than that.
A fire can be a persisting process; but at any particular moment, there are different pieces of matter that are burning. Even in a human body, there can be different pieces of matter over time that constitute the body or the brain, or that perform the physical processes correlate to consciousness. But a human consciousness persists in a more fundamental way. There is a certain someone who persists from moment to moment, day to day, year to year. You who exist today did not step in for some other “you” who existed yesterday.
The most fundamental fact that makes a physical entity an entity is that it persists. Over time, an entity remains the same thing. In this way, a human consciousness is not merely an emergent property, but more fundamentally an emergent entity. You are you. I am I.
The you-ness of your consciousness, whatever that you-ness is, is what I call a soul.
I labored over the choice of word for the concept I am denoting by the word “soul.” I also considered the words “self” and “ego.” None of these three words in common usage captures precisely the concept I am using in this essay. (I also considered coining a new word.) I decided on the word “soul,” despite its religious connotations and the connotation that a soul can exist in the absence of a body, because the word “soul” best captures the attribute of persistence. The soul, in my meaning, persists from one conscious experience to the next, and also through periods of unconsciousness.
Furthermore, the words “self” and “ego” distinguish primarily between the self and other selves, and between the self and the world that the self is aware of. The concept of soul, by my meaning, primarily distinguishes the soul from other aspects of and perspectives on consciousness, such as consciousness as an instance, or a process, or a faculty.
Ayn Rand (1971, 144) writes,
Man is a being of self-made soul which means that his character is formed by his basic premises, particularly by his basic value-premises.
— “Art and Moral Treason,” reprinted in The Romantic Manifesto. 1971. New York: Signet.
In “Philosophy and Sense of Life,” in the same book (1971, 29), she writes, “By ‘soul’ I mean ‘consciousness.’”
Of course, one’s consciousness precedes one’s premises and one’s character. I reconcile these statements by Ayn Rand with my alternative formulation, “Man is a being of self-shaped soul.” That is, nature gives a man a soul, and the man shapes it. To change the metaphor, man is born tabula rasa, a blank slate. His soul initially is a combination of a blank slate and a piece of chalk. Reality writes on the slate in the form of sensory information, and man writes on the slate in the form of volitional conceptualization.
When does a soul come into existence?
It seems unlikely that the faculty of consciousness could exist before the soul. Such a situation would imply some kind of conscious stand-in—possessing no persistence—for the eventual soul, like baby teeth standing in for permanent teeth.
But it is possible that the soul could exist before it is conscious; an entity can exist before it takes a detectable action. Also, my soul continues to exist while I am unconscious. It is possible, then, that the soul comes into existence as soon as there is any kind of brain-like activity.
We also do not know whether the soul is a result of brain activity or simply of the structure of some part of the brain. Therefore, it is also possible that the soul comes into existence sometime during the formation of the cerebral cortex. It is also possible that the soul comes into existence with the brain-like activity or even the formation of the cerebrum, or even with the formation of earlier brain regions such as the brain stem—because it is possible that the soul comes into existence before it is conscious.
Again, we do not know what causes the soul to come into existence. Therefore, we do not know when the soul comes into existence.
Another fact to consider is that animals much simpler than man—frogs, for instance—also behave in ways to suggest that they possess a persistent conscious identity analogous to what I am calling a soul in humans. This fact further suggests that the highest regions of the human brain—such as the neocortex or more advanced aspects of the cerebral cortex—are not necessary for the emergence of the human soul. Whereas a frog possesses an analog of the human cerebrum, the frog’s analog of a cerebral cortex is limited to a pallium, which is only an early form of the human cerebral cortex.
What is the progression of potentialities to actualities in a human being?
Potentiality and actuality occur in stages. An actual embryo is a potential fetus, a fetus is a potential infant, an infant is a potential adult. Also, an embryo is a potential ensouled human being, and an actual ensouled human being is a potential adult.
Potentiality and actuality occur in stages in another crucial way. To understand this way, consider this example: A man who obtains a law license is in one respect actually a lawyer even though he has not yet practiced law. But in another respect he is only potentially a lawyer, because he has not yet practiced law. Once he does practice law, he is actually a lawyer in a more complete way.
Aristotle makes this kind of distinction in his Physics and Metaphysics, using two different words—entelecheia and energeia—for two different kinds of actuality. Scholars disagree over what these two words mean in Aristotle, and over whether the two words entelecheia and energeia really differ in meaning. I am not qualified to enter into the debate over Aristotle’s meaning. The point here is that the issue of abortion will not be resolved simply by calling some things actual and other things potential. A deeper understanding of the specific subject matter is required. We need to identify the pivotal actuality by which a human being acquires rights.
What is the pivotal actuality?
Before jumping to my answer, let us consider an incremental case, a case incremental to the birth of a child. What is the difference between a child at birth vs. a child an hour before birth?
Before birth, the umbilical cord still attaches the infant (or fetus) to the mother. Therefore, the pre-born infant is more dependent; but the infant in both cases is dependent on the parents for sustained life. The pre-born infant is more a part of the mother. But if the infant is conscious before birth as well as after birth, then the infant in both cases is fundamentally an individual in virtue of its own consciousness and—as far as anyone can tell—its own soul.
Immediately after birth, the infant might or might not yet make choices and use its rational and volitional faculty. Before birth, an infant might not yet do these things. In that respect, the pre-born has not actualized its rational and volitional faculty. But in another respect, the pre-born has in fact actualized this faculty: the faculty is—as far as we know—virtually as fully formed as when he is born an hour later. The pre-born is like a lawyer who has not yet practiced law, but who does have his law license and the actual ability to practice.
In this case, which actuality matters? In my judgment, the actuality that matters is the existence of the faculty. A man asleep is not capable of using his rational and volitional faculty, yet retains his rights. Rights, as derived from this faculty, would be virtually useless if they applied only while the faculty was in active use.
What matters also is that there exists a soul—a persisting mental entity—that possesses this faculty.
Does an infant gain moral stature by taking his first breath, perhaps choosing to fight valiantly for that breath? Maybe, but it seems that virtually every infant takes that first breath. A pre-born should not lose his moral status merely because he has not yet been given a test that virtually everyone passes.
The conclusion is that—if the pre-born already has a soul, which is highly probably if the pre-born is already conscious—the pre-born has as much of a right to life as a born infant does.
The birth of a child and the cutting of the umbilical cord are bright lines in the life of a human. After birth, the infant is more independent, less dependent on the mother. Pro-abortionists sometimes cite this fact to argue that only after birth does the infant deserve the right to life. But this conclusion is a non-sequitur. If anything, the lessening of the child’s dependence diminishes the responsibility of the mother. After birth, the mother is free to take periodic breaks from caring for the child, so long as another adult is available to fill in. The mother is set free to eat foods that would not have been healthful to the baby, and so on. This diminishing of parental responsibility continues gradually until the child reaches adulthood.
Moreover, a mother of a born child can in effect kill the child merely by abandoning him. Everyone knows—or at least should know—that even this passive act is murder. But if this passive act is murder, then what of an abortion an hour or day or month before birth? Such an abortion, far from being a passive act, requires an overt act of killing, generally entailing tearing the living human being limb from limb.
Extending this argument naturally, the fetus has a right to life at least as early as the time when it has a soul and a developed brain possessing the faculty of reason and volition even to some degree.
But is possession of the faculty of reason and volition the pivotal actuality entailing the right to life? I will argue that the pivotal actuality is the soul.
Consider this thought experiment. Suppose a man has an accident and is reduced to a vegetative state. Suppose also that it is known that his faculty for volition and reason has been destroyed. But suppose it is also known that it is possible that this faculty will regenerate. Does the man retain his right to life? Clearly, the answer is yes. What matters is that he is a human soul with the potential for developing the faculty of reason and volition. Indeed, a simple consideration of the course of a normal human life reveals that rights must persist through periods of incapacity.
On the other hand, if it were known that a man’s very soul had been destroyed, that there was no chance to revive that particular soul, then the man would no longer have rights—because his soul would no longer exist. (In a real situation, of course, we would not know such a thing for sure, and therefore the man would retain his rights.)
This thought experiment demonstrates that the soul is the pivotal actuality that endows the first form of rights on the individual, even when the faculty of reason and volition is only a potentiality.
Let us generalize from this thought experiment to include the issue of the rights of pre-adults—that is, children and the pre-born. Recall the earlier conclusion, in terms of philosophical principles, regarding the rights of children. Here now is that conclusion re-stated to encompass all human souls, including the pre-born:
The life of an individual, human soul requires that the individual soul be sustained while his faculty of reason and volition are developing. Individual rights to action are of no use to any individual if he can be killed or left to die before his reason and volition constitute his basic means of survival. That the individual’s life be sustained by his parents before he reaches adulthood is as much an objective requirement for a human soul’s life as is the adult individual’s right to action in accordance with his reason and his right to life.
To restate this conclusion from another perspective, a human being has rights as soon as he is ensouled, even if he does not yet possess the faculty of reason and volition, so long as the faculty of reason and volition is a potentiality. That is, if ensoulment is actual and the faculty of reason and volition only potential, then the individual has rights. In other words, the mere potential for reason and volition is enough for an ensouled individual to possess rights.
This right of the pre-adult (child or pre-born) does not conflict with an adult’s individual rights because the right of the pre-adult is limited to a claim specifically on his parents, the individuals whose action—procreation—caused the pre-adult’s existence and dependent situation.
Another perspective on this moral claim on the parents is that the pertinent social context is confined to the relationship between the child and his parents; therefore, the child has no claim on the wider society. (I raise this obscure point only to rebut an argument, offered by some Objectivists—see, for example, this article by Andrew Bernstein—that rights arise only in a social context and therefore do not apply to a fetus confined to the womb.)
Leonard Peikoff (1991, 353–354), in his book Objectivism:The Philosophy of Ayn Rand, in the chapter entitled “Government,” contains the following important passage:
Each of man’s rights has a specific source in the Objectivist ethics and, beneath that, in the Objectivist view of man’s metaphysical nature (which in turn rests on the Objectivist metaphysics and epistemology). Man is a certain kind of living organism—which leads to his need of morality and to man’s life being the moral standard—which leads to the right to act by the guidance of this standard, i.e., the right to life. Reason is man’s basic means of survival—which leads to rationality being the primary virtue—which leads to the right to act according to one’s judgment, i.e., the right to liberty. Unlike animals, man does not survive by adjusting to the given—which leads to productiveness being a cardinal virtue—which leads to the right to keep, use, and dispose of the things one has produced, i.e., the right to property. Reason is an attribute of the individual, one that demands, as a condition of its function, unbreached allegiance to reality—which leads to the ethics of egoism—which leads to the right to the pursuit of happiness.
Since a proper philosophy is an integrated system, each right rests not merely on a single ethical or metaphysical principle, but on all the principles just mentioned (and ultimately on all the principles, from every branch of philosophy, which precede the issue of rights).
Peikoff goes on to explain that “All rights rest on the fact that man’s life is the moral standard”; and also “on the fact that man survives by means of reason,” “on the fact that man is a productive being,” and “on the ethics of egoism.”
The present essay has already argued for the special conditions pertaining to the rights of children and the pre-born. My purpose in referencing the passage from Peikoff is that it might serve as a model for another, derivative validation. That validation is of the principle that individuals must recognize the rights of all other individuals. This principle is especially poignant in regard to the current subject, because children and the pre-born are unable to speak for themselves.
Later in his chapter on “Government,” Peikoff (1991, 358) writes,
A man must respect the freedom of human beings for a selfish reason: he stands to benefit enormously from their rational actions.
Ayn Rand (1966 , 227) writes,
The only “obligation” involved in individual rights is an obligation imposed, not by the state, but by the nature of reality (i.e., by the law of identity): consistency, which, in this case, means the obligation to respect the rights of others, if one wishes one’s own rights to be recognized and protected.
— “The Wreckage of the Consensus.” Capitalism: The Unknown Ideal. New York: Signet.
Taking the earlier passage from Peikoff as a model, I offer the following elaboration on the argument from Ayn Rand:
Pride and self-esteem require the recognition that I deserve rights. The virtue of justice requires the recognition that other human souls deserve rights as much as I do. The virtue of productiveness requires that I recognize the rights—leading to the productiveness—of all my trading partners, present and future. The virtues of rationality and integrity require consistency in recognizing the rights of all individuals. A benevolent sense of life—the conviction that the world is auspicious to man’s life—is fueled by living in a society in which all human souls have the right to life and the resultant opportunity to flourish.
Note: In his chapter on “Government,” Peikoff (1991, 357) draws a conclusion very much contrary to mine regarding abortion.
In concrete, practical terms, when is abortion immoral, and when should it be illegal?
The foregoing establishes that, like a child, an ensouled fetus has a moral right to life and a moral claim on his parents to sustain his life until adulthood. Therefore, abortion of an ensouled human is morally depraved; politically, abortion of an ensouled fetus should be considered murder.
No one, however, knows precisely—or even approximately—when ensoulment occurs. Given this uncertainty, the moral and legal deadlines for abortion require lines of reasoning different from each other.
It is immoral to commit an act that has even a small, though significant, possibility of killing an ensouled individual. Therefore, abortion is immoral once any kind of brain activity begins (if not before then), usually after seven weeks of pregnancy. For my part, I would not want a wife of mine to abort any time after the beginning of pregnancy, because no one knows for sure how soon after the beginning of pregnancy ensoulment occurs.
The legal standard is different. For the law to forbid an act, there normally must be more than a small possibility that the act will cause harm to or even kill someone else. Therefore, I do not think that the law can forbid abortion before brain activity. Without further considerations, it is difficult to claim that even brain activity is a reasonable threshold past which to prohibit abortion.
But there is indeed a further consideration. In the United States at the present time, a sexually active woman has the means to know that she is pregnant well before seven weeks of pregnancy. If her menstrual cycle is a week late (or a day late if she has a long cycle), and she does not want to have a child, then moral responsibility requires that she test herself for pregnancy. Therefore, there normally is no rational basis for postponing an abortion past that time. Therefore, seven weeks or brain activity is indeed a reasonable threshold past which abortion should be illegal and classified as a serious crime. Perhaps an additional week or two should be permitted to allow for unusually long menstrual cycles and logistical issues involved in scheduling and preparing medically for the abortion, making the legal limit nine weeks.
The crime might be classified as something like reckless endangerment, even though it is not known whether the woman is endangering an actual person. It is a serious crime to drive on the wrong side of the road, even if it is not known whether there is anyone else on the road; there might be.
Exceptions should be allowed if serious unpredictable medical risks, greater than the medical risks of childbirth, arise for the mother after seven (or nine) weeks. Other areas of the law concerned with the justified use of lethal force can be referenced for precedent and guidelines concerning degrees of risk. For example, to justify an abortion after seven (or nine) weeks, the risk of birth to the mother should have to be at least as great as the risk faced by a gun owner before he is justified to shoot an attacker; and a doctor performing an abortion after seven or nine weeks should have to face at least the same scrutiny as a police officer discharging his firearm. The reason for the words “at least” is that a child in the womb is, unlike an attacker, innocent.
In parts of the world where early detection of pregnancy is not readily available, this legal threshold should be somewhat later. If, in the future, pregnancy can always be detected much earlier than it can today, then—all other things being equal—the moral and legal threshold should be earlier. If, in the future, we learn more about when ensoulment occurs, then the threshold should be adjusted accordingly. For the remainder of this essay, I will confine my focus to the U.S. in the present.
Because it is highly possible—if not probable—that the pre-born individual is ensouled by 24 weeks of pregnancy, abortion after that time should be classified as a more serious form of endangerment. (What I mean by “highly possible” in this context is that the probability of ensoulment is at least of the order of magnitude of the probability of the contrary.) Because it is not certain, given the present state of scientific knowledge, that ensoulment occurs before birth, abortion should not at the present time be classified as murder.
Thus, modern science—making it possible for a woman to know that she is pregnant early in the process—makes possible a fortunate solution to this difficult and weighty moral and political issue. Women who want to abort have plenty of time to do so before incurring more than a small risk of killing an ensouled human being; and the rights of ensouled human beings are protected with a high degree of probability.
Earlier in this essay, I wrote, “If an adult is not willing to make the degree of commitment outlined above, then he should not choose to have children.” I also wrote, “For my part, I would not want a wife of mine to abort any time after the beginning of pregnancy, because no one knows for sure how soon after the beginning of pregnancy ensoulment occurs.” These two statements are consistent because I choose not to have sexual relations outside of marriage, and I would not marry someone unless I loved and trusted her (and myself) enough to be willing to have and raise children with her whenever she became pregnant.
One exceptional case to consider is rape. This case is exceptional because it entails that procreation was not voluntary on the part of the mother. Therefore, the foregoing argument that the child has a moral and legal claim on the mother does not apply. But another argument does apply.
Consider first the case in which the mother has the concerns I do about abortion at any time during pregnancy. Then abortion is not an option for her, and the issue is moot.
The other case is that the mother is convinced that ensoulment does not occur before seven weeks. Then, by my argument, abortion before seven weeks is both a moral and legal option.
The choice not to have such an abortion is, in effect, the choice to bring a human soul into existence. From this choice, the responsibilities of parenthood follow. Therefore, the exceptional case of rape leads to no exceptional moral or legal treatment of abortion.
Another exceptional case occurs when it is discovered that the pre-born individual has a serious impairment that will persist throughout life. But this issue is not an issue of abortion per se. If the individual is not yet ensouled, then the parents should make the decision to abort or not, depending on their values—as they would make the analogous decision in the case of a healthy individual, although their decision for the impaired individual might be different. If the individual is already ensouled, then he has the same moral and legal standing as a born child, and the issue is, “Under what circumstances of a child’s dysfunction and distress is it moral and legal for the parents to kill their child?” That subject is for a different essay, and probably a different author.
In summary, with rare exceptions, after seven to nine weeks of pregnancy, abortion is immoral and legally should be a serious crime on the order of reckless endangerment; after 24 weeks, abortion should be an even more serious crime; before seven weeks, abortion may be morally questionable (because of the small chance of ensoulment by then) but should be legal.
Criticism
Before criticizing others on the subject of abortion, I will criticize myself. For many years, I accepted this conclusion by Ayn Rand ([1968] 1990, 58–59):
An embryo has no rights. Rights do not pertain to a potential, only to an actual being. A child cannot acquire any rights until it is born. The living take precedence over the not yet living (or the unborn).
—Ayn Rand. 1990. “Of Living Death,” part 2, The Objectivist, October 1968 (published December 1968), 534. Republished in The Voice of Reason: Essays in Objectivist Thought. New York: New American Library.
I accepted this position without much scrutiny until roughly a dozen years ago. My concerns with this position increased when I learned of the distinctions by Aristotle among various kinds of actuality and potentiality. My first published disagreement with Ayn Rand on abortion was a passage in my 2016 blog post, “Judeo-Christian Conservatives Are Today’s Main Defenders of Western Civilization.”
I am ashamed that, for many years, I accepted Ayn Rand’s position without much scrutiny, and that the position I accepted could be tantamount to condoning murder.
The following passage (McConnell 2010, 597)—quoting Harry Binswanger on his editing of an article by Ayn Rand about a year before her death—is relevant:
I asked her, “Don’t you think that there is a right to abort in the eighth or ninth month of pregnancy?” because the way one sentence was worded, it sounded like there might not be a right to abort in the eighth or ninth month when the fetus could live outside the womb. She said, “it’s fully formed then,” which is true; it can live outside. I said, Yes, but isn’t your point here that there’s a crucial difference between the potential and the actual? It hasn’t lived yet.” And she said, “Yes, but it would be wrong to kill it.” I argued, “Well, are you saying that it’s morally wrong but within the woman’s rights?” So we discussed these kinds of issues for a minute or two. Then she reached for the pen and decisively and dramatically scratched out the previous phrase, and wrote, in one stroke, this unambiguous statement: “A human being’s life begins at birth.”
—Scott McConnell. 2010. An Oral History of Ayn Rand . New York: New American Library.
This passage suggests a reasonable possibility that Ayn Rand thought that late-term abortion is immoral. If only she had published such a statement somewhere. Even if wrong on the political issue, being right on the moral issue is more fundamental and therefore more important. Unfortunately, of all the numerous Objectivists (advocates of Ayn Rand’s philosophy of Objectivism) I have read concerning the subject of abortion, not one has given more than passing consideration to the idea expressed by Ayn Rand’s spoken statement, “Yes, but it would be wrong to kill it.” The most attention I have seen to the moral issue is in this article, in which Peikoff writes, “If a pregnant woman acts wantonly or capriciously, then she should be condemned morally—but not treated as a murderer.”
Writers associated with the Ayn Rand Institute have been unanimous in their unqualified agreement with the published writings by Ayn Rand regarding abortion. For the most thorough account of this position, along with further argumentation in support of this position, see Why the Right to Abortion Is Sacrosanct, by Ben Bayer, reprinting a series of articles by him that were published on the website of the Ayn Rand Institute. In my judgment, this short book inadvertently exposes the weakness of the position held by the Ayn Rand Institute, relying on mistaken arguments regarding physical individuation, potentiality vs. actuality, and individual rights as they apply to children. In my judgment, these arguments are devastated by my essay here and also by George and Tollefsen in their book cited above. See also this article by Patrick Lee with Tollefsen and George.
George and Tollefsen—along with Lee, Tollefsen and George—argue that an individual’s rights commence at conception. They argue, rightly, that a zygote is indeed a human being, but they reject the idea that the rights of a human being require the emergence of consciousness in some form. They argue that an embryo is an actual human with the potential for human consciousness, and that such an entity has rights deserved by all humans. They argue also that a conscious human being is an integration of body and mind, and that it is an invalid form of dualism to consider consciousness as something apart from the physical body and brain. They would undoubtedly reject, on these grounds, my argument for the soul as an entity.
In my judgment, these thinkers are mistaken that rights commence at conception. Nevertheless, not only is their argument regarding the abortion controversy stronger than Ayn Rand’s, but also the practical consequence of their error, though grave, is less so. If ensoulment occurs a significant time after conception, then their error leads to unjust burdens of pregnancy and unwanted parenthood in the unlikely case that adoption is not available; but if ensoulment occurs before birth, then Ayn Rand’s error leads to murder.
As for the main Leftist position on this issue, the Left is still wrong about everything, because the main Leftist position is the familiar appeal to emotion—in this case, the subjective desires of the mother—with little to no consideration of the question of whether the unborn have rights by an objective standard. Check out these leading pro-abortion websites and see whether you can find an actual argument to support their advocacy:
http://www.prochoiceamerica.org/
https://www.plannedparenthood.org
Numerous Objectivists (along with Leftists) emphasize that Conservatives claim wrongly that the right to life begins at conception. For example, Ayn Rand writes (in “A Last Survey – Part I,” The Ayn Rand Letter [December 1975]: 383), “One may argue about the later stages of a pregnancy, but the essential issue concerns only the first three months.” Leonard Peikoff writes, “The status of the embryo in the first trimester is the basic issue that cannot be sidestepped.” Andrew Bernstein writes, “What is relevant, and essential, is the first trimester, … .” On the other hand, many Conservatives emphasize the third trimester: they note that Leftists, not to mention Objectivists, support abortion up to the moment before birth (if not later). But both cases—abortion at conception and abortion just before birth—are crucial, and a consideration of both cases together constitutes a reductio ad absurdum against both main sides of the debate.
A Call to Speak Out
My shame due to my past position on abortion reminds me not to be too critical of Objectivists who are making the same error I once made. Nevertheless, this error—so egregious because it is tantamount to advocating a serious violation of rights, possibly even murder—is undoubtedly impeding the spread of more fundamental, civilization-saving ideas of Ayn Rand’s philosophy of Objectivism. For more than half a century, to my knowledge, no prominent Objectivist—I am neither prominent nor an Objectivist (though a long-time student of Objectivism)—has disagreed publicly with Ayn Rand’s position on abortion, whereas many have agreed while also impugning motives of those less wrong than they. If any Objectivist does disagree with or even doubts Ayn Rand’s position, whether or not you agree with my position, now is as good a time as any future time to speak up and speak out.
* * *
Because aspects of this subject are grim to contemplate, I close with links to a poem to rejuvenate the spirit.
The Bridge Builder
By Will Allen Dromgoole
For a reading of the poem by me, see here.
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Update, June 16, 2024: I thank—without implying their agreement—Arshak Benlian, Ray Cole, James Ellias, and Glenn Marcus for their very helpful comments on earlier drafts of this essay.