In order to have a rational discussion about abortion, it is best to begin with areas of agreement.  The simple truths presented here are not intended to solve all disagreements about abortion, but to provide the foundation for a rational discussion.

After conception, the life developing inside a pregnant woman is human.  It has human DNA. It is not a spider, dog or any other species of animal, other than human.  Paul Stark’s article for a pro-life organization provides a fuller discussion.  The human is very undeveloped at conception, and some may have arguments about why an undeveloped or partially developed human has a lesser right to life than a fully developed human.  However, it is wrong to consider it anything other than human.  Whether or not it satisfies the legal definition of “person” as that word is used in the United States Constitution, it is a human life.

The argument that a woman has a right to control her own body does not fully resolve the debate because it ignores the other human body involved.  The pre-born human has rights also.  Some may have arguments about why the woman’s rights predominate, but a complete resolution of the debate must take account of the rights of the pre-born human.

Human fetus at 10 weeks (photo credit: Drsuparna)

The argument that a woman has a right to control her own body has another limitation.  At most, the argument entitles the woman to have the pre-born human separated from her body.  In the earlier stages of development, separating the pre-born human from the woman will cause the pre-born human to die.  However, in subsequent stages of development, such separation will not cause the pre-born human to die.  Therefore, the argument that a woman has a right to control her own body, standing alone, does not justify killing the pre-born human if it can be separated from the woman and live apart from the woman.

Some may argue that such a killing can be justified.  For example, here is Democrat Virginia state legislator Kathy K.L. Tran testifying that her bill would allow a woman to have her pre-born human killed just before birth.  Here Democrat Virginia Governor Ralph Northham states his support for the bill and his belief that it would allow a woman and her doctor, at least in some cases, to deny medical care to a living newborn human who survived an attempted abortion.  Whether or not there is justification for the position that it is okay for a pre-born human to be killed when it is capable of surviving separation from the mother, any such justification must be more than “control over one’s own body.”

Putting aside the case of a direct risk of the woman’s death from the pregnancy, whatever moral duty a woman has to protect the pre-born human is at its lowest degree when she has no responsibility for causing her pregnancy, such as in a case of rape.  If a woman intentionally or negligently causes her pregnancy, she has a moral duty, to some degree, to protect the pre-born human.

This can be illustrated with a lifeboat example.  Imagine a woman is in her own lifeboat at sea by herself.  Another boat comes by and people on board throw another person into her lifeboat.  This new passenger did not do anything to cause this to happen, and is completely innocent regarding this situation, as is the woman.  Whatever the woman’s moral or legal duty to the new passenger, the degree of that duty is greater if the woman intentionally or negligently caused the new passenger to be in her lifeboat.

Generally, under American law, a person does not have a duty to take action to help another person when the first person did not do anything to put the second person in danger.  In the 1983 case of Stout v. City of Porterville, a California Court of Appeal described this general rule:

As a rule, one has no duty to come to the aid of another.  A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to such a duty.

Therefore, if the woman is in her lifeboat and sees a person drowning, assuming she has no responsibility for causing the drowning person to be in that situation, and no other relationship to the person, she has no legal duty to affirmatively help the person.  She may have a moral duty to help, but generally under American law, she does not have a legal duty.

This legal doctrine does not allow a woman pregnant from rape to kill the pre-born human.  The legal doctrine allows her to do nothing without incurring legal liability, but it does not allow her to take affirmative action to kill the pre-born human.  Any legal justification for the killing of the pre-born human by the woman who has been raped must come from additional legal doctrines.

Whether there is legal and moral justification for the innocent woman who has been raped to kill the innocent pre-born human depends on the outcome of a balancing test that will involve many factors.  For example, the woman owns her body, her lifeboat, giving her a right to control access.  However, removal of the innocent human will cause the innocent human to die.  If she allows the innocent human to stay for less than a year, the innocent human will leave.  The baby can be separated from her when it is safe, and she can allow the baby to be adopted.  The innocent uninvited lifeboat passenger will go away when they are rescued.  Should the pain, inconvenience, and whatever other detriment that may befall the woman outweigh the interest of the innocent human who will die if the woman chooses to kill?

Finally, although the law does not give the father any veto power over a woman’s decision to kill or not kill the pre-born human, in a non-rape situation, what moral duty does the woman have to honor the father’s position?

These simple truths are meant to be the beginning of a rational discussion about abortion, not the end.

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled "Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).