Counter Arguments And How to Refute Them - The Constitutionality of Abortion

For the original argument these are in response to see McFall V. Shimp, the Right to Refuse Bodily Aid, and the Urgent Need to Protect Abortion and Our Constitution

1. Arguments of Nature: It is a woman's nature to carry, birth, and raise children. 

Refutation: Reducing people to merely their nature or biology will not help any counter-argument in opposition to abortion. Research shows us that there is evidence that other mammals have evolved to miscarry-on-demand in order to survive when resources are scarce or when social conditions change and the risk of rival male infanticide increases. There a plenty of instances of outright maternal infanticide and newborn rejection throughout the animal world as well. Humans have evolved to use tools, and abortion is the use of tools to mitigate the risks of pregnancy and birth.

Biological reductions would make it permissible to take a "survival of the fittest" stance towards our offspring, jeopardizing the safety of living children. This logic would also necessitate supporting eugenics.

Our legal system rejects such reductions. The law has consistently upheld that sex-based interpretations are unconstitutional. If you are a citizen, per the 15th amendment you have the right to vote, regardless of sex. The 14th amendment is even broader and ensures equal protection to all people (not necessarily just citizens), and in case anyone needs a reminder, women are people. 

2. Organ Function Argument: It would be wrong to be compelled to donate vital organs/tissues/bodily fluids as they have evolved to work specifically to support your body. A uterus's only purpose is to carry a ZEF.

Refutation: Uteruses are not self-sustaining. You can't just cut a uterus with a fertilized egg in it out of a person and 9 months later a healthy, full-term baby comes out. Pregnancy is sustained through multiple vital organ systems. A woman must produce 20-50% more blood to sustain a pregnancy, putting more strain on her heart, for example. Accepting the argument above does not justify compelled pregnancy, but does justify compelled sperm donation as sperm have no purpose beyond fertilizing eggs. 

 3. Bodily Aid vs. Bodily Responsibility Argument: Abortion is not refusing bodily aid, it is refusing bodily responsibility. A parent has an obligation to care for their child.

Refutation:  While you are legally obligated to care for and shelter your children, you are not required to do so at your body's expense. If your child is starving with no food source available that does not mean you must permit them to cannibalize you.

4. "Regardless of Consent You Knew the Risk" Argument

Refutation:  Invalidating consent is the means of tyranny. Our country was founded on the principle that government derives its power from the consent of the people. Undermining the importance of consent undermines the foundation of all our laws. 

Knowing the risks of engaging in an activity does not necessarily mean you are at fault for all of the consequences it can have.

I would venture to say most drivers are aware that car accidents are pretty common and are a leading cause of death. In fact, the average driver can expect to be involved in 3-4 accidents in their lifetime. Knowing that doesn't mean they are automatically at fault if they get into an accident and should be stripped of their driving privileges.

Interestingly the average woman will have just over 2 children in her lifetime. So the risk of a woman having an accidental child is less than the risk of getting into a car accident. 

Short of asking them to sign a contract acknowledging the risks of pregnancy, there really is no valid legal way to prove someone knew the risks sex entails. There are also definitely circumstances where people quite literally don't know the risks or cant possibly be aware of all of them, e.g. rape victims, minors.

 5. Rejection of Involuntary Servitude Characterization:

Refutation: Cornell Law's definition: "The term 'involuntary servitude' includes a condition of servitude induced by means of— (A) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or (B) the abuse or threatened abuse of the legal process." 

Again, the stipulation that consent must be ongoing is enforced. You can enter into an arrangement as a voluntary servant, revoke consent and if there are coercive factors like the abuse of legal process preventing you from leaving, then you are an involuntary servant. 

If we accept that people have a right to refuse bodily aid, the state's use of abortion bans to induce you to continue in your service to another person are in themselves an abuse of the legal process.

As I have yet to see irrefutable evidence that the right to refuse bodily aid can justly be denied, the involuntary servant definition applies. 

6.  Arguments Refuting Lethal-Self Defense as Proportional and Likening Abortion to Shooting Accidental Home Intruders on Sight:

Refutation: The threat in that example doesn't involve an intrusion or threat to your body. Pregnancy does. If you get pregnant it will inevitably harm you to some degree (at minimum lots of pain, dinner plate-sized wound where your placenta was, lots of bleeding) and as stated in the essay you are more likely to find yourself dead due to pregnancy complications than murdered as a complication of rape. It is demonstrably permissible in cases of rape / attempted rape to use lethal force to protect yourself. A rapist/would-be rapist doesn't even need to brandish a weapon to justify using lethal use of force in defense against them. This is because we have a natural understanding that rape itself is physically harmful to a person and it may lead to them being killed. Pregnancy is also physically harmful and statistically more likely to kill you. Anyone arguing this point undermines self-defense as a a whole. Lethal self-defense is not an explicit right in the constitution, it is implied and affirmed through case law, so it is inherently subjective and varies from state to state. Pretty much all hinge on the reasonable belief that your life or body are in imminent danger. As stated above and in the essay pregnancy is imminent in nature and by function necessitates physical harm to the mother.  

7. States Can Restrict Abortion as a Means of Self-Defense Argument:

Refutation: The right to self-defense is a natural right, it precedes government. You have a right to protect your body against any threat. The state's role is merely to verify that you did indeed act in self-defense and reacted appropriately to the threat.

Abortion by nature is a female-specific form of self-defense. The states cannot impose laws that would be discriminatory based off of sex. Abortion cannot be outright banned for this reason.

The state could require a trial to plead one's case that abortion was necessary. However, this would be an undue burden and an abuse of power by the state as it can always be proven that abortion is necessary. All pregnancies cause physical harm and are more likely to kill you than a crime for which lethal self-defense is seen as permissible (rape). There is no way to retreat. There are no other methods of defense to safely remove the ZEF that don't pose more of a risk to the mother. It all hinges around a pregnant person's reasonable belief of imminent harm, which is always reasonable because pregnancy necessitates harm to the mother (at minimum pain, loss of blood, loss of an organ (placenta), a large wound in your uterus where the placenta was). All that would be needed would be the requirement for a patient seeking abortion to sign a form listing the harmful risks associated with pregnancy and certifying that they are in fear of that harm and the potential for death.

McFall V. Shimp, the Right to Refuse Bodily Aid, and the Urgent Need to Protect Abortion and Our Constitution

Two years after Roe V. Wade was overturned and in an election year, we are living amidst a raging debate on abortion. As of writing this, there are 43 states with abortion bans or gestational restrictions in place.[1] While Roe V. Wade may have been the most compelling argument for constitutional protection of abortion in its time, it was incomplete and more effective precedents have since been set that are not adequately discussed. As a result, I would like to bring to your attention the case of McFall V. Shimp and explain how it supports that abortion without any restrictions is constitutionally protected.

McFall v. Shimp, 10 Pa. D. & C.3d 90 ( 1978)

McFall V. Shimp was a 1978 Allegheny County, PA court case. The plaintiff Robert McFall was gravely ill and in dire need of a bone marrow transplant. McFall’s cousin - the defendant David Shimp - was the only available bone marrow match, but refused to make a donation. McFall sued Shimp citing old English law and, per presiding judge John P. Flaherty Jr., posed the following question to the court:

“in order to save the life of one of its members by the only means available, may society infringe upon one’s absolute right to his ‘bodily security’?”– Judge John P. Flaherty Jr.

Judge Flaherty’s following ruling provides the best legal precedent in support of abortion, even in accepting the opposition's strongest but debatable claim that a zygote/embryo/fetus (hereinafter called ZEF) qualifies for legal personhood from the point of conception.

"The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save another human being or to rescue. A great deal has been written regarding this rule which, on the surface, appears to be revolting in a moral sense. Introspection, however, will demonstrate that the rule is founded upon the very essence of our free society…For our law to compel defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual, and would impose a rule which would know no limits, and one could not imagine where the line would be drawn…For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence.” – Judge John P. Flaherty Jr.

Implications of McFall V. Shimp on Abortion - The Right to Refuse Bodily Aid

Forcing a person to provide bodily aid to a ZEF by carrying it for any duration and birthing it against their will - regardless of whether or not they were a voluntary party during conception - is in direct opposition to the ruling in McFall V. Shimp. Doing so would obliterate the principle of ongoing consent and would render the pregnant person an involuntary servant, violating the 13th amendment. This would also mean that pregnant individuals are not receiving equal protection of the law, violating the 14th amendment. The counterargument that McFall V. Shimp establishes the right to refuse bodily aid even when it results in death but does not establish the right to directly cause bodily harm or death naturally follows. Let’s look at the abortion procedures currently available and their mechanisms of action to see whether an argument for self-defense is necessary.

Medical Abortion is Justified by the Negative Right to Refuse Bodily Aid

Medical abortion drugs (Mifepristone and Misoprostal) are either synthetic prostaglandins or stimulate the release of natural prostaglandins, resulting in changes to a pregnant person's anatomy that induces contractions and bleeding to empty the uterus.[2][3] The resulting death of the ZEF in this case is due to the removed access to maternal organs/tissues/bodily fluids, not any direct harm to its person (certainly not any moreso than a miscarriage or spontaneous labor). The right to refuse bodily aid regardless of its consequence to others established in McFall V. Shimp thus fully justifies these types of abortion. Surgical Abortion and the Right to Lethal Force in Self-Defense Surgical abortion procedures entail dilation of the cervix through which the ZEF, placenta, and/or any other products of conception are evacuated and may utilize the same drugs as medical abortion in addition to aspiration, forceps, or curettage to extract the ZEF and pregnancy tissues.[4] Physical trauma sustained by the ZEF during the evacuation process is likely to be the cause of its demise, and thus justification is needed in these instances to establish whether the mother has a right to cause such harm. We've already established that coercive bodily aid is inherently wrong; why and for whom it is done ultimately is irrelevant. The question now is whether coerced bodily aid in itself permits the use of deadly force in self-defense. To keep things as analogous as possible, let's use the following hypothetical scenario wherein someone is similarly being compelled to provide reproductive bodily aid and faces similar risks, and we’ll address sex-as-consent arguments.

A woman goes to the hospital to have a damaged ovary laparoscopically removed. Her Doctor is fully certified and well trained in performing all surgeries pertaining to the female reproductive system (with case fatality and morbidity rates matching national averages for each, though the patient is not aware of that). He is also a leading expert on uterus transplants. It is deemed in this patient's case that local anesthesia will be used, so she is awake during the procedure. The doctor begins surgery. After the ovary is visible on the screen, the doctor pauses, looks at the patient and says "I'm going to take the other one too. And the tubes, uterus, cervix, the whole thing. You're not using it and I want it to be able to help someone who I believe deserves to use it now. Don't worry, I'm not trying to harm you and it'll be a by-the-book laparoscopic hysterectomy. I'll reimplant it back into you in 9 months when they're done with it." Despite her screaming "No!" and pleading with him to stop, he adjusts the laparoscope and begins making another portal incision on her abdomen, opposite the side of the damaged ovary. No one is coming to her aid, and she can't fully escape the table restraints to retreat. Immediately the patient is filled with dread. Will she ever be able to have the baby she's been trying for? Is she actually going to make it off this operating table alive? Panicked, she manages to lunge for a scalpel and stabs the doctor, killing him.

I think most reasonable people would be utterly horrified by this scenario and would not question that lethal self-defense was warranted, nor would they argue that in consenting to the initial surgery on her ovary the patient somehow implicitly consented to a hysterectomy. Again, consent must be specific, informed, explicit, and ongoing. How might one argue now that the threat posed to the patient in this scenario necessitates use of lethal force but self-defense from an undesired pregnancy does not? Let's look at all the common legal criteria for use of lethal force required throughout the states and see how they compare.

1. Is the threat imminent?

Both involve an imminent threat - the pregnancy and surgery are already underway in both circumstances.

2. Was the fear of harm reasonable?

Given the loss of autonomy combined with the fact that the threat in both cases is already underway and that neither are without risk of death or serious injury, yes. No pregnancy is without risk of maternal death or serious illness or injury, and will almost certainly result in permanent anatomical alterations and minor injuries. It is impossible to predict beyond the shadow of a doubt whether or not a pregnancy will result in maternal mortality or morbidity. Additionally, the CDC indicates that the case fatality rate for legal induced abortions as of 2019 was 0.0043%, whereas the total maternal mortality rate as of 2019 was 0.02%, meaning that pregnancy and birth are over 46 times more likely to result in maternal death than legally induced abortion, so it is reasonable for a pregnant person to fear the effects of the pregnancy and believe that killing the ZEF via abortion is the safest option they have.[5][6]

3. Can the duty to retreat be fulfilled?

No. There is no way to retreat from pregnancy or birth once underway beside abortion, and there is no procedure currently available that will remove the ZEF in such a manner that both parties are free of risk of harm or death. The ZEF can't be unconceived. Nor can it be fulfilled in the hypothetical surgery scenario, the patient is restrained. 4. Was the response proportional? Again, the risk of fatality in both circumstances is not 0, so right there we can argue yes. To further prove the point, we can compare statistics for both with other scenarios that generally warrant use of lethal force in self-defense. Comparing the FBI’s reported crime volumes in the US against its reported murder circumstance volumes from 2015-2019, the following approximate average crime victim murder rates are able to be determined: rape 0.017%, burglary 0.01% (see table 1). As for our scenarios, the laparoscopic hysterectomy mortality rate is estimated at 0.05%, whereas the current maternal mortality rate as of 2022 is 0.02% of live births.[7][6] Thus, both of our scenarios are slightly more likely to prove deadly than rape and significantly more likely to prove fatal than burglary. As lethal use of force to defend oneself from rape or burglary is generally permitted, we must accept that it should be permitted to defend oneself from the risks pregnancy/birth poses.

5. Castle doctrine

Our bodies are more our home than any house. If people have a right to use lethal force to protect their home against intruders, they have just as much right to do the same with bodily intrusions. It would seem we have satisfied all common criteria for self-defense and thus use of lethal force in surgical abortion - or any other manner of legal abortion - is justified.

Summary, Conclusion and Call For Congressional Action

Thus we have established the following points: 1. McFall V. Shimp affirms that we have a right to refuse bodily aid, regardless of why or for whom it is refused, even if the refused party dies as a result of lack of access to said bodily aid. 2. Consent must be specific, ongoing, explicit, and informed. Consenting to one form of care from a health provider does not indicate consent to additional procedures, for example. Thus, consenting to sexual acts with one person is not the same as consenting to carry and sustain the life of another person, ergo a pregnant person can revoke consent to provide bodily aid to a ZEF at any point. 3. Denying a pregnant person the right to refuse bodily aid to their ZEF but protecting any other person's right to refuse bodily aid to that same ZEF via organ donation would result in unequal protection of the law, explicitly violating the 14th amendment. 4. Denying a pregnant person access to abortion renders them an involuntary servant to their ZEF, explicitly violating the 13th amendment.

5. A pregnant person has a right to self-defense against their ZEF. Given the imminent, unpredictable nature of pregnancy and that maternal mortality rates are higher than the murder rate of rape or burglary victims, the use of lethal force to defend oneself against unwilling pregnancy is justified. Abortion bans thus implicitly violate the 2nd amendment. 6. Banning legal abortion procedures is thus entirely legally baseless even when accepting the claim that a ZEF is a legal person from the point of conception. Additionally, I’d like to make one further point: 7. Babies born alive by any means - even if an undesired result of an abortion - are unequivocally legal persons entitled to the same right to life and protections as any other child. As the bodily threat they posed during pregnancy/birth has already passed, killing them once delivered would be murder. Again, as of writing this, there are 43 states with abortion bans or gestational restrictions in place. As a consequence, not only are people with seemingly healthy pregnancies being denied abortions, but also those with unhealthy and/or non-viable pregnancies are being denied them, and the quality and efficiency in providing care for miscarriage is also suffering.[8] Given that, and the above point #2, it is imperative that Congress utilize the power granted it in section 2 of the 13th amendment to pass legislation enforcing the constitutional right to freedom from involuntary servitude that any state abortion ban or restriction would infringe. Abortion is a deeply emotional topic for many. I am not asking you to feel good about this. In fact, I believe every circumstance where abortion is necessary is extremely unfortunate and sad for a variety of reasons. We cannot undermine our constitution to avoid that which makes us uncomfortable though. What we should do is seek to affect positive changes in our society that make abortion less sought after. We can create a culture where the prospect of raising a child is not seen as an insurmountable burden. There are other venues to fight this battle. Additionally I would urge you to reflect on events in our country in recent years and ask if it really is a surprise that we have found ourselves in such a state of tyranny with respect to bodily autonomy. The parallels between compelled bodily aid to a ZEF in the form of pregnancy and compelled bodily aid to at-risk populations in the form of mandated vaccines should not be lost on you. However well-intentioned the support for either may be, both have eroded our nation’s hard fought protections of individual rights and muddled the public’s understanding of what the role of government should be in these circumstances. Given that these trespasses seem to be increasingly common and that the abortion debate has been a distracting point of heated political contention for 50+ years, the right to refuse bodily aid should be explicit in our constitution to avoid any further confusion or transgressions. Congress should propose a constitutional amendment protecting the right to refuse bodily aid and the right to bodily autonomy in general.

For counterarguments to this essay, see Counter Arguments And How to Refute Them - The Constitutionality of Abortion.

ACT NOW

Sources

1. McCann, A., & Walker, A. S. Abortion bans across the country: Tracking restrictions by state. Updated 2024, Sep 17. In: The New York Times [Internet]. https://www.nytimes.com/interactive/2024/us/abortion-laws-roe-v-wade.html 2. Autry BM, Wadhwa R. Mifepristone. [Updated 2024 Feb 28]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2024 Jan. https://www.ncbi.nlm.nih.gov/books/NBK557612/ 3. Krugh M, Patel P, Maani CV. Misoprostol. [Updated 2024 Feb 19]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2024 Jan. https://www.ncbi.nlm.nih.gov/books/NBK539873/ 4. Ajmal M, Sunder M, Akinbinu R. Abortion. [Updated 2023 Jul 10]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2024 Jan. https://www.ncbi.nlm.nih.gov/books/NBK518961/ 5. Kortsmit K, Nguyen AT, Mandel MG, et al. Abortion Surveillance — United States, 2020. MMWR Surveill Summ 2022;71(No. SS-10):1–27. DOI. http://dx.doi.org/10.15585/mmwr.ss7110a1. 6. Hoyert DL. Maternal mortality rates in the United States, 2022. NCHS Health E-Stats. 2024. DOI: https://dx.doi.org/10.15620/cdc/152992.

7. Augusto KL, Brilhante AVM, Modesto GCD, Saboia DM, Rocha CFC, Karbage SAL, Magalhães TF, Bezerra LRPS. Costs and mortality rates of surgical approaches to hysterectomy in Brazil. Rev Saude Publica. 2018 Mar 12;52:25. doi: 10.11606/S1518-8787.2018052000129. PMID: 29561962; PMCID: PMC6257415. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6257415/#:~:text=Hospital%20admissions%20were%20300%2C231%20for,missing%20data%20in%20our%20database. 8. Westwood, R. Standard pregnancy care is now dangerously disrupted in Louisiana, report reveals. NPR; 2024, March 19. https://www.npr.org/sections/health-shots/2024/03/19/1239376395/louisiana-abortion-ban-dangerously-disrupting-pregnancy-miscarriage-care