A few weeks ago, Hilary Clinton gave an interview on NBC’s Sunday political talk show “Meet The Press.” The show’s host and moderator, journalist Chuck Todd, asked Clinton: “When or if does an unborn child have constitutional rights?” Clinton replied:
Well, under our laws currently, that is not something that exists,” Clinton answered. “The unborn person doesn’t have constitutional rights. Now, that doesn’t mean that we don’t do everything we possibly can in the vast majority of instances to, you know, help a mother who is carrying a child and wants to make sure that child will be healthy, to have appropriate medical support.
It doesn’t mean that you don’t do everything possible to try to fulfill your obligations. But it does not include sacrificing the woman’s right to make decisions.
Clinton later doubled down and said the unborn do not have constitutional rights after birth (partial-birth abortion). Clinton’s overall stance is nothing unique by itself. Her stance generally lines up with the Democratic Party’s official platform on abortion. However, these statements raise two points that I want to draw out away from all the other rhetoric spent on this topic. The first is that rights are not given by a government. The second is that people have intrinsic value; following Clinton’s lead removes intrinsic value from humans and replaces it with extrinsic value. I’ll explain why Clinton’s stance on both topics is wrong.
On the first point, Clinton is correct the US law does not recognize constitutional rights for the unborn. In a series of cases, beginning with Roe v. Wade and established more concretely in Planned Parenthood v. Casey, the US Supreme Court has recognized a right to abortion under the general penumbra of privacy rights. 1 This raises a question: Where do rights come from?
American legal tradition holds that rights exist independent from government. 2 You have individual rights as a person purely because you exist. You have what is called intrinsic value; that is you have value inherently because you are a human. When people violate your rights, they are violating natural law and your intrinsic value. The American government was designed to secure rights and prevent violation of those rights. Checks and balances were put in place to stop government taking rights away. James Madison, father of the constitution, defended the system and its importance in Federalist No. 51:
Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
What does this have to do with Clinton’s statements? If you read Clinton and pro-choice advocates on this issue, they describe a balancing of public policy, choice, and life. Clinton relies on public policy arguing women require choice to end pregnancies. Similarly, Ruth Bader Ginsburg spent 7-1/2 pages outlining the same necessity in her dissent arguing Hobby Lobby should be denied free exercise of their religious beliefs (among other claims, which I’ve discussed previously). The point is Clinton and pro-choice advocates argue rights emanate from government; or, rights are made no different than public policy, which can be change as society “progresses.” This cheapens rights and elevates public policy to the level of a right. The problem is public policy changes over time, human rights do not. No right is secure that can change as societal demands shift. Rights are meant to secure a foundation for all people to live in equality under the law.
This brings me to my second point: humans have intrinsic value, not extrinsic value. By elevating public policy, Clinton removes intrinsic value for all humans and replaces it with extrinsic value. American law is built on all humans having intrinsic value. Extrinsic value removes this foundation and endangers the rights of all, especially minorities, the weak, and the unborn.
Extrinsic value is where something has no inherent value, but rather it receives value from an outside source. With intrinsic value, something has innate value. With extrinsic value, people or ideas give something its value. It’s best explained through example: In the 19th Century, one pro-slavery argument was that blacks were sub-human or inferior because they lacked the intelligence of whites. Human value was denied to blacks because whites claimed blacks lacked intelligence. Intelligence was the extrinsic value deciding whether or not a black person was human. Intrinsic value would say blacks had value innately because they are humans – no outside source could deny them rights. Abraham Lincoln debunked extrinsic values in a fragment from his early writings:
If A. can prove, however conclusively, that he may, of right, enslave B. — why may not B. snatch the same argument, and prove equally, that he may enslave A?–
You say A. is white, and B. is black. It is color, then; the lighter, having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.
You do not mean color exactly?–You mean the whites are intellectually the superiors of the blacks, and, therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.
But, say you, it is a question of interest; and, if you can make it your interest, you have the right to enslave another. Very well. And if he can make it his interest, he has the right to enslave you.
Lincoln’s point: whatever extrinsic value used to enslave one race can be used to enslave any race. Similarly, whatever extrinsic value used to deny life for one group can be used deny life to any group. The overarching point is this: using extrinsic values to define human value dehumanizes us all. You reduce a person’s existence to that extrinsic value, not their inherent value as a person.
How does this affect Clinton’s statements? Balancing interests is an extrinsic valuation of human life, not intrinsic. Any single extrinsic value can be used to define away the life of anyone. Extrinsic values are a weak foundation for human rights. There can be no balancing test here, as Clinton is attempting to do. Either people have intrinsic value, or they do not. If they do not have intrinsic value, then rights cannot emanate from the individual. Defining a class of humans becomes easier.
The consequences of what happens if intrinsic value is taken away are already known. Two ethicists out of the University of Melbourne in Australia submitted a paper that was accepted in the Journal of Medical Ethics in the section of Law, Ethics and Medicine in 2012 called: “After-birth abortion: why should the baby live?” The authors call for not just abortion to be legal, but the killing of children up until the point that child has aims to achieve in the world (FYI – we’re talking about fully functional children past 2 years old):
In spite of the oxymoron in the expression, we propose to call this practice ‘after-birth abortion’, rather than ‘infanticide’, to emphasise that the moral status of the individual killed is comparable with that of a fetus (on which ‘abortions’ in the traditional sense are performed) rather than to that of a child. Therefore, we claim that killing a newborn could be ethically permissible in all the circumstances where abortion would be. Such circumstances include cases where the newborn has the potential to have an (at least) acceptable life, but the well-being of the family is at risk. Accordingly, a second terminological specification is that we call such a practice ‘after-birth abortion’ rather than ‘euthanasia’ because the best interest of the one who dies is not necessarily the primary criterion for the choice, contrary to what happens in the case of euthanasia.
Failing to bring a new person into existence cannot be compared with the wrong caused by procuring the death of an existing person. The reason is that, unlike the case of death of an existing person, failing to bring a new person into existence does not prevent anyone from accomplishing any of her future aims. However, this consideration entails a much stronger idea than the one according to which severely handicapped children should be euthanised. If the death of a newborn is not wrongful to her on the grounds that she cannot have formed any aim that she is prevented from accomplishing, then it should also be permissible to practise an after-birth abortion on a healthy newborn too, given that she has not formed any aim yet.
There are two reasons which, taken together, justify this claim:
The moral status of an infant is equivalent to that of a fetus, that is, neither can be considered a ‘person’ in a morally relevant sense.
It is not possible to damage a newborn by preventing her from developing the potentiality to become a person in the morally relevant sense.
If you determine personhood through extrinsic values only, then the view of these ethicists is not only acceptable, it is expected. If people have no intrinsic value, government can dictate rights to whatever group or class with no reprisal. Notice the extrinsic values the authors use to determine personhood: aims to reach in life, a well lived life, not a burden to society, and other utilitarian goals. If you lack these extrinsic values, even beyond the stage of an infant, the authors believe you can be killed with no repercussions. This is beyond euthanasia. The authors avoid terms like infanticide to make their views more palpable. Abraham Lincoln’s point stands: any single one of those extrinsic qualities could be used against any other person. We could use those values to kill every person with a genetic defect (autism, Downs Syndrome, “medical burdens”), the depressed people, and the poor and impoverished who do not live a good life. There is no difference in this line of argument and the reasoning used by slavers to dehumanize blacks.
The danger of Clinton’s stance, and the pro-choice movement, is the elevation of public policy as an extrinsic value determining personhood. The Supreme Court used the same logic in its Roe and Casey decisions. Which is why I argue the Supreme Court has wrongly decided the abortion cases. The Supreme Court is denying basic human rights on public policy grounds, violating natural law in the process. It’s not the first time the Court has wrongly decided cases using this reasoning.
Current Supreme Court abortion caselaw follows the same reasoning pushed in the Dred Scott decision. The Dred Scott decision dehumanized blacks to make slavery palpable. Chief Justice Taney’s majority opinion in Dred Scott concluded blacks were an inferior race, not included in the class of “We the people” at the founding. He made this conclusions relying on extrinsic values to assess blacks:
We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
Notice Taney’s argument: he says one race is inferior to another, based on race, lineage, and subjugation. As Lincoln pointed out, any single one of these extrinsic values could be flipped to enslave whites. Taney’s real point was whatever faction held power decided whether minority groups had rights. Contrary to what Taney says, this directly contradicts the Founders on the Constitution. James Madison said in Federalist 10 that the object of factions within government was to stop one group overpowering others. Taney argues the complete opposite of this, saying one faction can strip the rights. The problem is, as Lincoln pointed out, if one group has this power, no group ultimately has any value.
Some may argue with me at this point and say that what I’m describing is a slippery slope fallacy. As a society, we are not dehumanizing people, killing children after birth, or killing the infirm. We are not lining up people according to the Australian ethicist’s values and killing them. Nor are people being enslaved using government power. So any claims to the contrary is just scare-mongering or the slippery slope fallacy.
I disagree. I am not describing a slippery slope fallacy. What I’m describing is the logical conclusions of the extrinsic value of life theory. This is a non-fallacious slippery slope. The difference is important. When people define whether a person has life based on an extrinsic value, they remove the intrinsic value of all people. With intrinsic value, there is an inherent check against power. For example, murder is wrong because involuntarily ending the life of another person violate’s that person’s right to be alive on earth. We don’t prohibit murder because it is bad policy, we do so because the murdered victim had value that is due justice. We punish the murderer because that person violated the respect and dignity we give the victim. We also give the criminally accused rights because they also have intrinsic value.
If you make extrinsic values the basis for giving a person rights, you’re removing that person’s inherent value. This argument was the foundation for the eugenics movement at the start of the 20th Century. Eugenicists in the United States wanted to use a variety of government tools to remove minorities, poor people, the mentally handicapped, and others from society. Eugenicists used extrinsic values to determine who should stay and who should go. Eugenicists from this time period saw the Nazi’s as the ultimate realization of their goals. Adolph Hitler and the Nazi’s wanted to create “the Übermensch,” a superman of humans who was genetically superior to all. The Nazi’s used this reasoning to commit mass genocide against the Jews and other unwanted minority groups in Europe. Every form of genocide that has occurred has justified itself on the grounds that the oppressed are sub-human and worthy of being murdered.
When you read about eugenicists from this time period, you find descriptions of how they started out with the best of goals: improving society. The problem is that men are not angels, as Madison put it. Giving any group the power to decide who should live or die has never ended well for minorities, the poor, and the weak. C.S. Lewis has the best response to these intentions:
My contention is that good men (not bad men) consistently acting upon that position [imposing “the good”] would act as cruelly and unjustly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under of robber barons than under omnipotent moral busybodies. The robber barons cruelty may sometimes sleep, his cupidity may at some points be satiated; but those who torment us for their own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to heaven yet at the same time likely to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on the level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.
An expected critique of my argument so far would be that I’m being hyperbolic by bringing tyrants and Nazi’s into play with this argument; that I’m violating Godwin’s Law. This is hardly the case. It’s a historical fact that this is what eugenicists and the Nazi’s believed. Further, we’ve seen similar trends in modern times beyond the University of Melbourne ethicists. In China and India, parents are more likely to abort a girl, or kill a girl after she is born, based solely on the sex of the child. 53% of the unborn diagnosed with Downs Syndrome after a prenatal examination are aborted. The Down Syndrome community has been reduced by 30% as a result. Bioethicists are warning about the need to begin conversations on the ethical boundaries of designer babies, genetically editing the genes of the unborn in order to eradicate disease, achieve certain aesthetics, or choose genetic qualities. In each case, extrinsic values are being used to determine whether or not a human is allowed to join the world. This devalues us all.
The final question I get is: when does a person receive intrinsic value? The answer: conception. The reason is as follows: If you base intrinsic value on the unborn achieving a certain viability point in the womb, you’re not describing intrinsic value, you’re making an extrinsic value choice. Intrinsic value is innate for every human life. If intrinsic value depends on a variable, then it is not intrinsic, but extrinsic. Further, any line draw on development or viability is arbitrary. A toddler has as much intrinsic value as an adult. A newborn infant has as much intrinsic value as a toddler. If you move 6 hours before birth, the unborn is just as developed as it will be in 6 hours. Removing intrinsic value on the basis of 6 hours is arbitrary and an extrinsic valuation. Any similar dividing line based on a developmental stage for human life faces the same problem of being an extrinsic valuation. Conception is the beginning point because prior to that point, only the building blocks for a human exist, not the first stage of development.
There is no balancing of values between choice and life as Clinton and the pro-choice community like to believe. Either humans have intrinsic value, or we can define them away through extrinsic values. Clinton says that the primary extrinsic value is whether or not the child is wanted. If the baby is wanted, then its a life we should protect. But if the mother does not want the child, we define personhood away because the unborn child is a burden. If the child gets medical attention, it has intrinsic value. If it does not get it, it has no intrinsic value. This is an arbitrary line of distinction and untenable to determine personhood or rights.
At the core of her argument, she is saying: If we want you in society, we’ll give you life; if we don’t, we won’t give life. In a law governed by intrinsic value, no one gets to decide if you are wanted. You get to exist because you have innate intrinsic value. Attempting to define people away through wordplay is nothing more than a salve for people’s minds and consciences to tell them they are not ending a human life. A life is ended. This is not a public policy balancing. Couching it in terms of public policy is nothing more than euphemism. It is a choice of death over life. Wordplay changes nothing.
Most Eugenists are Euphemists. I mean merely that short words startle them, while long words soothe them. And they are utterly incapable of translating the one into the other, however obviously they mean the same thing. Say to them “The persuasive and even coercive powers of the citizen should enable him to make sure that the burden of longevity in the previous generation does not become disproportionate and intolerable, especially to the females”; say this to them and they will sway slightly to and fro like babies sent to sleep in cradles. Say to them “Murder your mother,” and they sit up quite suddenly. Yet the two sentences, in cold logic, are exactly the same. Say to them “It is not improbable that a period may arrive when the narrow if once useful distinction between the anthropoid homo and the other animals, which has been modified on so many moral points, may be modified also even in regard to the important question of the extension of human diet”; say this to them, and beauty born of murmuring sound will pass into their face. But say to them, in a simple, manly, hearty way “Let’s eat a man!” and their surprise is quite surprising. Yet the sentences say just the same thing.
G.K. Chesterton; Eugenics and Other Evils: An Argument Against the Scientifically Organized State (1922)
- Roe v. Wade is often referenced in popular media, but the more important case is Planned Parenthood v. Casey. Roe is widely considered, by legal scholars on both sides of the issue, to be bad law. It’s poorly reasoned. Casey, while I disagree with it, is better reasoned than Roe. The only remaining concept from Roe that currently stands is the general right to an abortion. Casey reaffirmed a right to abortion with different legal reasoning. Which is why you won’t hear pro-life or pro-choice legal scholars say “We need to overturn/support Roe v. Wade.” The important case is Casey and the progeny of decisions that follow it. ↩
- An extensive primer would cover the importance of John Locke, Thomas Hobbes, and the American Founders. I’m hitting the conclusions from the era. ↩