Hard Cases for Defenders of Abortion

William E. May
(c) 2011 Culture of Life Foundation.
Reproduced with Permission
Culture of Life Foundation

There are several "hard cases" that advocates of abortion find difficult to justify. In the recent, The Ethics of Abortion: Women's Rights, Human Life, and the Question of Justice (New York/London: Routledge Taylor & Francis Group, Routledge Annals of Bioethics, 2011), author Christopher Kaczor identifies these contradictions of reason as 8 "hard cases." The first two cases he treats, 1. murder of pregnant women, and 2. sex selection abortion, I will consider for this essay and elaborate with material of my own.

The murder of pregnant women

Almost everyone thinks that raping women is a morally repugnant act, especially if she is pregnant and even more so if it causes her to miscarry. This is so true, Kaczor notes, that even the most vociferous champions of capital punishment balk at executing a woman while she is pregnant. If someone murders the pregnant woman and murders her unborn baby as well, this horrible crime becomes even more odious.

But there exist vicious men who have caused their wives or girl friends to become pregnant by sexually abusing them or using them in the sexual act to satisfy their lustful urges while at the same time not wanting the pregnancy that may result. Some such men have been found to go so far as to murder the wives or girlfriends they made pregnant when they refuse to abort the child. They do not want to incur the obligation - one that can be, has been, and is legally enforced - to help pay expenses for the care of the child after he or she is born. A notorious example occurred in the early years of this century. Scott Peterson's wife Laci was eight months pregnant with their son Connor. She went missing on Christmas Eve, 2002. After she disappeared, Peterson changed his appearance and purchased a pick-up truck using his mother's maiden name instead of his own. He added two pornography television channels to his cable service a few days after his wife's disappearance; and later, after he had been brought to trial, the prosecution made clear its inference that this behavior showed that Peterson knew that his wife would not be returning home. He also showed interest in selling the house he had shared with his wife, and he did sell Laci's Land Rover. The prosecution presented Scott Peterson's affair with Amber Frey and money as motives for the murder. Prosecutors argued that Peterson killed his pregnant wife due to increasing debt and a desire to be single again (http://en.wikipedia.org/wiki/Scott_Peterson gives details of this celebrated case). On April 14 the bodies of Laci and Connor were separately washed to shore in San Francisco Bay. Baby Connor's umbilical cord was still attached.

Despite protests by abortion rights advocates, Peterson was legally charged and found guilty by the California Court with two counts of murder, with "special circumstances" - the second murder, that of Connor, the unborn child, calling for tougher penalties.

This is obviously a hard or difficult case for abortion advocates. Here we have a duly constituted jury in the State of California, finding a person guilty of murdering an unborn child. One is never condemned or executed as a murderer of a non-human animal or a non-person. But abortion advocates claim that unborn human beings are not "persons."

Sex-Selection Abortion (SSA)

Kaczor addressed this matter not only in his book but also in "Sex Selection of Children" [for abortion], available at http://www.lifeissues.net/writers/kac/kac_02sexselection.html. Sex selection can and does occur after implantation by abortion. Sex Selection Abortion (SSA) can be done very early during pregnancy - one blood sample in early weeks of embryonic development can show whether the embryo is male or female. One authority, J. M. Millietz, who judges SSA to be morally wrong, in an important article ("Sex Selection for Non-Medical Purposes," Reproductive BioMedicine Online 14, 114-117) even stated that SSA "for personal convenience is unanimously banned" (at 115). Kazor notes that this is not true because, for example, abortion for any reason is legally permissible throughout the entire pregnancy in the US.

Nevertheless, many who describe themselves as pro-choice oppose SSA, among them the American College of Obstetricians and Gynecologists (ACOG). But from a pro-choice perspective, it seems difficult to explain why fetal killing for gender preference should be wrong. Amazingly, however, Wendy Rogers, Angeline Ballyntyne, and Heather Draper developed arguments in "Is Sex-Selective Abortion Morally Justified and Should It Be Prohibited?" (Bioethics (2007) 21.9, 320-324) that abortion advocates think are compatible with a defense of abortion. The authors argue that SSA is wrong, but it is not wrong because it kills an unborn human person (they adhere to the claim that the unborn entity may be a human being but definitely not a "person" with rights that need to be taken into account). They find SSA wrong because it discriminates unjustly against women and can lead to further violence against women.

Millietz's major claim in his article is that SSA is morally wrong because it unjustly kills an innocent human person in the embryonic or fetal stage of his or her development. According to him abortion in general ends the lives of "girls" and "children" and this surely applies to SSA.

Toward the end of his article posted on the Life Issues website, Kaczor refers to and quotes from an excellent article by S. Matthew Liao, "The Right of Children to Be Loved" (this appeared in Journal of Public Philosophy (2006) 14.4, 420-440). In it Liao considers SSA and argues that children have a right to be loved. The following quotation from Liao is in my opinion a fitting end for this brief piece.

Liao writes as follows:

Human beings have rights to…conditions . . . essential for a good life. As human beings, children have rights to those conditions. Being loved is a condition. . . essential for children to have a good life. Therefore, children have a right to be loved. To explicate this argument, let me begin by characterizing the kind of love at issue, namely, parental love, which has the following characteristics: To love a child is to seek a highly intense interaction with the child, where one values the child for the child's sake, where one seeks to bring about and to maintain physical and psychological proximity with the child, where one seeks to promote the child's well-being for the child's sake, and where one desires that the child reciprocate or, at least, is responsive to, one's love. One important feature of parental love is valuing the child for the child's sake. As a child psychologist Mia Pringle argues: "The basic and all-pervasive feature of parental love is that the child is valued unconditionally and for his own sake, irrespective of his sex, appearance, abilities or personality; that this love is given without expectation of or demand for gratitude" (422).


Surely the murdering of pregnant women and their unborn children as well as abortion chosen because the unborn child is not the "right" sex are cases very difficult for abortion advocates to justify. Kaczor, in his book, gives excellent reasons why the efforts of some to do so fail miserably, thus demonstrating the inability to truly justify the killing of innocent human life.