David and the Book of Mormon

I’ve been a student of religious studies since I was twelve years old. In fact, I had intended to get a degree in this field, but was unable to complete my formal education. I never lost my interest in the subject. Since I’m also a Mormon, I have a special interest in Mormonism. So, as a member of Academia.edu I frequently get reading suggestions on the topic of Mormonism.

This is how I came to read “Davidic References in the Book of Mormon as Evidence Against Its Historicity” by Kyle Robert Beshears.¹ There is really no way to sugarcoat this. It is a bad argument. It is a really bad argument. In fact, it is such an exceedingly bad argument that I wonder if a thesis like this would be accepted anywhere other than a place like SBTS.

I felt the thesis needed some kind of response. But I didn’t want to duplicate any other efforts, so I inquired if there were any existing responses to the thesis at the Mormon dialogue and discussion board. A fellow board member, Gary Jacobson, referred me to “Too Little or Too Much Like the Bible? A Novel Critique of the Book of Mormon Involving David and the Psalms” by Jeff Lindsay.²

I considered “Too Little or Too Much Like the Bible?” a fairly good response. My thoughts about the thesis tracked so well with Lindsay’s response that I wondered if should still write my own response. Ultimately, I decided that I can still contribute to the discussion. So, here we go.

In contrast to Lindsay, I am going to be tackling Beshears from an environmentalist perspective. That is to say that I agree with Beshears that the Book of Mormon is not an ancient document. So what am I doing “defending Book of Mormon historicity?”

There are a couple reasons. First, as I discussed in my “Environmental Theory” essay, environmentalists, especially religious environmentalists like myself, have a special duty to show our approach to the Book of Mormon is basically positive. Among other things, this means that religious environmentalists should be at the forefront of calling out and disposing of bad arguments, even from those we are in nominal agreement with. This is why I wrote “How Not to Do Book of Mormon Studies” and that is partly why I am responding to Beshears now. In a sense, I feel like I have an even bigger dog in this fight than Lindsay.

Second, I am not defending Book of Mormon historicity as such. While historicists could use the arguments I am going to make, ultimately my conclusion is Beshears’ evidence is not evidence of anything. This is as much an experiment in Book of Mormon interpretation as it is a response to Beshears. Beshears is correct that there are relatively few direct references to David in the Book of Mormon. But rather than being evidence against historicity, the lack of references is an important part of the picture the Book of Mormon paints for itself. As an environmentalist, I would say it contributes to the Book’s verisimilitude. A historicist might rather say that this picture points to historicity. If so, I would not complain.

Lindsay (32) and I are in complete agreement that Beshears neologism mormonic (2 n.2) is too close to “demonic” or especially “moronic” to be seen as anything other than pejorative.³ Beshears uses the excuse that the term “does away with the cumbersome phrasing of ‘Book of Mormon’ to describe its people, narrative, events, theology.” But if “Book of Mormon” is too cumbersome to use every time, there are perfectly good abbreviations that can be used instead. Indeed, Beshears uses one himself: BofM. I’m going to stick with that abbreviation throughout this essay.

Lindsay (32) gives a brief discussion dealing with Beshears’ repeated accusation of plagiarism, to which I have nothing to add.

Lindsay also gives a devastating critique to Beshears’ methodology by, among other things, pointing out that most biblical references to David are clustered in books telling David’s story, and that many books in the Bible don’t mention him at all (37-41). While this is good work, I have an even more fundamental problem with Beshears’ argument. The real problem is that even if the methodology weren’t so flawed, the entire approach is not evidence of anything.

Consider the structure of Beshears’ argument:

1. If the Book of Mormon has numerous references to David, this would be evidence for its historicity.

2. If the Book of Mormon does not have numerous references to David, this would be evidence against its historicity.

3. The Book of Mormon does not have numerous references to David.

4. Therefore, the evidence points against historicity.

Premise 1 is wrong. To demonstrate this, let’s look at Beshears’ own example of how historicists use thematic similarities in the Bible to “corroborate the anticipated continuity between Old and New World Jewish cultures”: Noel B. Reynolds’ “The Israelite Background of Moses Typology in the Book of Mormon.”⁴ First, notice Reynolds never said that the Moses typology was evidence of BofM historicity. The closest he came was to say that if Joseph Smith did it based on what was understood in the 1820s, “he probably would have gotten it wrong” (5). Also note that saying “it would make sense to criticize the Book of Mormon” for not having the typology is an entirely different thing than saying that would be evidence against historicity. Beshears is already trying to prove too much.

If you are a storyteller, and you are going to tell a story about, well, an exodus, you’re not going to go wrong by modeling the story on the Exodus. Regardless of the state of biblical scholarship at the time, it can’t be denied that the material was available to Joseph Smith. If Reynolds said the Exodus typology pointed to the historicity of the Book of Mormon, it would be all too easy to simply respond Joseph Smith drew it from the Bible.

Likewise, even if the Book of Mormon bristled with Davidic references, and those references reflected everything Beshears said it should, it still would not be evidence of anything. Whatever use the Book of Mormon made of David, it still couldn’t be denied that the material was available to Joseph Smith. Therefore, it can’t in itself be used as evidence of historicity.

It should go without saying that if the presence of something is not evidence of anything, then the absence of that that thing is not evidence of anything either.

If we can’t say the lack of Davidic references don’t prove anything vis a vis BofM historicity, is there nothing that can be said about this? To use Reynolds’ term, could we justifiably criticize the Book of Mormon for not having them? I propose this is going to depend on two factors. First, is the Book of Mormon really lacking in references to David? If so, does the Book of Mormon have a reason to avoid mentioning David?

Beshears is correct the Book of Mormon only directly mentions David seven times. I confirmed this by doing a search on a PDF version. In contrast, my preliminary⁵ counts yielded twenty-three references to Joseph, forty-nine mentions of Jacob, and seventy-five references to Moses. Beshears counted twenty-seven references to Abraham (19). Mentions of David certainly do pale by comparison.

Direct mentions probably don’t fully do the job, however. We should also take into account allusions as well. For example, Ben McGuire makes a case that the killing of Laban (1 Ne. 3:31–4:19) has several deliberate allusions to the story of David and Goliath (1 Sam. 17).⁶ If this deliberate modeling does not count as a reference to David, then naming a land after him (Morm. 2:5) probably doesn’t either. There may well be more of these types of allusions to David, so this is a subject that could use further exploration. Even so, I don’t think we will find enough such allusions to say the Book of Mormon is under the long shadow of David, especially not in the way we could say this of Moses.

Should we count quotations or allusions to Psalms attributed to David as Davidic references? Beshears asserts there are no direct quotes from the Psalms⁷ and that possible allusions to them are problematic at best (41-44). So answering this question requires delving into at least one controversy.⁸ Even if we resolve the question of whether the Psalms are quoted or alluded to,⁹ that still would not necessarily mean they should count as Davidic references. Since the argument I’m going to make could account for such quotations or allusions (assuming they exist), I will set this question aside for now.

Especially when setting aside that question, I think it safe to say David is not emphasized in the Book of Mormon. That answers the first question. Now let’s turn to the second. Does the Book of Mormon have a reason to avoid mentioning David? I think it does.¹⁰

The Book of Mormon begins in “the first year of the reign of Zedekiah” (1 Ne. 1:4). Zedekiah was installed by King Nebuchadnezzar after a disastrous battle with Zedekiah’s nephew Jehoiachin. Besides installing Zedekiah, Nebuchadnezzar exiled at least ten thousand people to Babylon, leaving only “the poorest of the land” (2 Kgs. 24:10-20).¹¹ Among these captives was the prophet Ezekiel (Ezek. 1:2).

For Jerusalem, this was just the latest in a series of disasters. First, King Josiah was killed in battle with Pharaoh Neco (2 Kgs. 23:29). Then Neco subsequently dethroned Jehoahaz, imposed a heavy tribute on Jerusalem, and installed Jehoiakim to the throne (2 Kgs. 23:33-34). Jehoiakim. either by choice or by force, switched allegiance to Nebuchadnezzar, only to rebel with calamitous consequences to Jerusalem (2 Kngs. 24:1-7).

Since these disasters all occurred in a space of no more than twenty years, this is the environment the Book of Mormon portrays Nephi and his brothers growing up in. And it is in this environment that Lehi began prophesying.¹² However, unlike Jeremiah (26:16-24; 36:11-19; 37:16-21, 38:1-28), Lehi did not have any protection from institutional sources. Lehi was on his own against those who mocked him and “sought his life” (1 Ne. 1:19-20).

So on the eve of Lehi’s departure from Jerusalem, no one in his party had reason to hold the Davidic monarchy in high regard. For all their complaints and desire to return to Jerusalem, Laman and Lemuel never said a word about its leadership. There are some clues in the Bible that the sentiment was widespread. The final four kings of Judah are not compared to David (2 Kngs. 23:31-24:20). Jeremiah clearly rejected the monarchy of his day, instead promising the Lord would raise a “righteous Branch” after the coming exile (22:24-23:6). In the aftermath of Jerusalem’s destruction, Ezekiel affirms the Davidic covenant (34:24), but the role and power of the “prince” are greatly reduced in his vision of the restored Israel (45:7-46:18). The book of Nehemiah, set during the post-exilic Persian period, identified David only as “the man of God”(12:24); Solomon is identified as “king” while emphasizing his sin in taking foreign wives (13:26).

Let’s back up a little. Nephi was originally commanded to start making his record between thirty and forty years after he left Jerusalem (2 Ne. 5:28-34). Within a few leaves of this record, we are told he received a revelation telling him he would “be made a ruler and a teacher over thy brethren” (1 Ne. 2:22). This revelation was later confirmed to Laman and Lemuel by an angel (1 Ne. 3:29). Despite this, a recurring complaint made by the two brothers is that Nephi was taking it upon himself to be a ruler over them (e.g., 1 Ne. 16:37-38; 18:10). Nephi’s final break with his brothers was precipitated by yet another such jealous outbreak (2 Ne. 5:3-5).

As noted above, the story of the killing of Laban seems deliberately modeled after the story of David and Goliath. When the people desire that Nephi be made a king, he tries to demur but humbly says “I did for them that which was in my power”¹³ (2 Ne. 5:18). Nevertheless, he could not seem to resist the impulse to note this was in fulfillment of prophecy (2 Ne. 5:19). Whatever reluctance Nephi had about being king did not prevent him from anointing a successor “according to the reigns of the kings”(Jacob 1:9). As Beshears himself notes, three of the references to David occur in the extensive copying of Isaiah in 2 Nephi. We can agree with him that “had Isaiah not mentioned David in those three verses, one wonders if Nephi would have ever mentioned the king at all, and the near-absense of Davidic references outside of this section in the BofM inclines one to suppose he would not have” (37). Interestingly, one of those mentions, 2 Ne. 19:7 (Isa. 9:7), does affirm the Davidic covenant, but as Beshears notes, Nephi makes nothing of this (37). This someone trying to establish his legitimacy to the throne.

As Nephi (and probably Zoram and Sam) die, a new problem arises. Nearly everyone in the budding Nephite community was either born in the sojourn out of Jerusalem or in the promised land. No one had any memories of Jerusalem in the final years leading to its destruction. What they did have were the brass plates.

We do not have an exact picture the brass plates’ contents. We can only assemble this picture through what the Book of Mormon specifically tells us and what is quoted or clearly alluded to. One of the things it tells us is that the brass plates contained “a record of the Jews from the beginning, even down to the commencement of the reign of Zedekiah” (1 Ne. 5:12). This would appear to mean they had something like 1 Samuel, 2 Samuel, 1 Kings, and 2 Kings up to chapter twenty-four.¹⁴

Again, exactly what is in the version of these books is unknown. However, it does seem that the Book of Mormon pictures the Nephites having some version the Davidic Covenant as presented in 2 Samuel 7. This will bring us to the three clearest mentions of David other than the Isaiah quotations in the Book of Mormon.

2 Samuel 7 starts with David proposing to build a temple for the Lord (v. 2). The prophet Nathan originally approves (v. 3), but then has a dream where the Lord tells him it will be David’s son that will build the temple and specifically says of this son, “I will be a father to him, and he shall be a son to me” (v. 13-14). Moreover, the Lord adds “Your house and your kingdom shall be made sure forever before me; your throne shall be established forever” (v. 16).

This seems particularly important for a couple reasons. First, it inextricably binds David and Solomon together. Second, it raises a note of illegitimacy to the Nephite kings.¹⁵

The Nephite community clearly regard David and Solomon as role models. It’s hard to think of them justifying their polygamous practices because of them otherwise. It is also hard to see any other place in the Bible that the Nephites would have had that so inextricably bind David and Solomon together. This would explain why the next few BofM Davidic references we are going to consider (Jacob 1:15, 2:23, 24) put them together.¹⁶

Note how Jacob sets the stage leading into the references to David and Solomon. First, he writes that Nephi anoints a new king before dying (Jacob 1:9). Next he comments that the people held Nephi I in such regard that subsequent kings (up to the fourth as of the time Jacob wrote) had Nephi as their regnal name (Jacob 1:10-11). So Jacob is writing well after the time he presents the sermon in Jacob 2-3. A dynasty has been established, which will last until the death of Mosiah₂ (Mosiah 29:38ff).

After relaying this information, Jacob discusses the circumstances of the sermon he gives in Jacob 2-3. He backs up to the “reign of the second king,” and discusses how he became concerned with “wicked practices, such as like unto David of old desiring many wives and concubines, and also Solomon, his son” (Jacob 1:15). And when Jacob discusses David and Solomon, he lets loose:

For behold, thus saith the Lord: This people begin to wax in iniquity; they understand not the scriptures, for they seek to excuse themselves in committing whoredoms, because of the things which were written concerning David, and Solomon his son.

Behold, David and Solomon truly had many wives and concubines, which thing was abominable before me, saith the Lord. (Jacob 2:23-24)

Looking at the sermon’s placement in the Book of Mormon, Jacob seems to be trying to kill two birds with one stone. The first, of course, is to record the start of his campaign against Nephite polygamy. The second is to help establish the legitimacy of the Nephite kings by castigating David and Solomon.¹⁷

Fast forward a couple hundred years or so. Warned to leave the land of Nephi, Mosiah₁ leads his people through the wilderness until they discover the people of Zarahemla. The people of Zarahemla are described as leaving Jerusalem in the wake of Zedekiah’s final defeat (Omni 12-14). The leader of this party is later identified as Mulek, and specifically called “the son of Zedekiah” (Hel. 6:10). The people of Zarahemla and the people of Mosiah₁ come to an accommodation which results in Mosiah₁ becoming the king of both (Omni 19).

However, this presents another problem. Now the Nephites have legitimate heirs to the kingdom of the house of Israel among them.¹⁸ Furthermore, the text later notes that: 1) the Nephites are a minority in Zarahemla and 2) the combined population of Zarahemla was less than half that of the Lamanites (Mosiah 25:3). This puts the Nephite monarchy in the horns of a dilemma. Emphasize David too much, and Mulek’s descendants might start getting ideas. But they definitely need the people of Zarahemla, so outright badmouthing Mulek’s ancestor would not be wise. Better to avoid mentioning him at all. Might that explain how the small plates seem to have gotten lost (W of M 3)? 

Fast forward another couple generations. Mosiah₂ has come to a point in his reign where it time to appoint a successor. The problem was that none of his sons wanted the throne (Mosiah 29:3). Rather than anointing one of his brothers (Mosiah 1:2), hypothetical nephews, or even someone outside the family (Alma₂ would have been a popular candidate, as shown by Mosiah 29:42), Mosiah proposes a radical change in government.

Instead of continuing the monarchy, Mosiah proposes that instead of continuing the monarchy, the people themselves should choose judges. In making his argument, Mosiah attacks the very idea of monarchy. Acknowledging that if the people always had a “just man” ruling over them, monarchy would be an “expedient” form of government (Mosiah 29:11), Mosiah emphasizes that the consequences of having a wicked man on the throne are too great:

And if my son should turn again to his pride and vain things he would recall the things which he had said, and claim his right to the kingdom, which would cause him and also this people to commit much sin.

…

For behold, how much iniquity doth one wicked king cause to be committed, yea, and what great destruction!

Yea, remember king Noah, his wickedness and his abominations, and also the wickedness and abominations of his people. Behold what great destruction did come upon them; and also because of their iniquities they were brought into bondage.

…

And behold, now I say unto you, ye cannot dethrone an iniquitous king save it be through much contention, and the shedding of much blood.

For behold, he has his friends in iniquity, and he keepeth his guards about him; and he teareth up the laws of those who have reigned in righteousness before him; and he trampleth under his feet the commandments of God;

And he enacteth laws, and sendeth them forth among his people, yea, laws after the manner of his own wickedness; and whosoever doth not obey his laws he causeth to be destroyed; and whosoever doth rebel against him he will send his armies against them to war, and if he can he will destroy them; and thus an unrighteous king doth pervert the ways of all righteousness. (Mosiah 29:8, 17-18, 21-23)

The people ratified Mosiah’s proposal, and the era of judges began. But within five years, Amlici had gathered enough of a following that he was able to force an election for his effort to be declared king. In what appears to be a fairly close vote,¹⁹ Amlici lost. Instead of accepting the voice of the people, Amlici started a civil war, which ultimately led to his death (Alma 2).

Less than twenty years after that, Amalickiah and his followers aspired to kingship in the wake of a dispute with the high priest Helaman₂. This time, there would be no election. Under the leadership of Moroni₁, the Nephites immediately took up arms against Amalickiah and his followers, forcing them to flee. Amalickiah himself made good his escape, but many of his followers were captured and forced to swear allegiance to the existing regime on pain of death (Alma 46).

They evidently did not keep this oath. Within a few years, they were attempting to change the government into a monarchy yet again. Again, this was put to the voice of the people. This time, the vote was so overwhelmingly against the king-men they were forced to keep their peace. However, in the face a Lamanite invasion, the king-men refused to be conscripted. Moroni₁ in turn diverted resources to root out a potential fifth column (Alma 51).

During the course of the war, it appears another group managed to force the chief judge, Pahoran, out of power and out of Zarahemla.²⁰ This group installed Pachus as king of Zarahemla. Again, Moroni₁ had to divert forces back to Zarahemla in order to deal with the problem (Alma 61-62).

The final attempt to establish a king over the Nephites was both a success and a failure. A complaint against lower judges was brought to the chief judge in Zarahemla. These judges were brought to Zarahemla to stand trial. However, their supporters formed a conspiracy overthrow the government and establish a king. They were successful in murdering the chief judge. This caused the entire government to collapse.

However, the conspirators were unable to take advantage. Instead of getting behind the conspiracy’s leader, the people simply divided into tribes. The leader was proclaimed king of his group, but realized he did not have enough power to unite the tribes under his leadership. As a result, his people migrated out of the land. However divided Nephite society had become, it was clear the last thing they wanted was a king (3 Ne. 6:25-7:14).

This review of the BofM’s plot suggests there are good reasons why it doesn’t mention David very often. The political situation described throughout the narrative militates against it. Lehi’s party had personal reasons not to be too enthusiastic about the Davidic monarchy. The Davidic covenant attached a note of illegitimacy to the entire Nephite monarchy from Nephi to Mosiah, such that Nephi had to justify his rulership and Jacob bolstered the monarchy by castigating David and Solomon. Later, Nephite society included legitimate Davidic heirs and the monarchy could not afford to give them ideas but also could not afford to badmouth David either. After transitioning to a more democratic form of government, Nephite society became plagued with demagogues seeking to become kings. This is not a society that is going to promote David—the paragon of Israelite kings.

This does not mean that Nephite society had no regard for David. They did name a “land” after him (Morm. 2:5), which suggests, contra Beshears, that the Book of Mormon does not merely fixate “on the ancient monarch’s practice of polygamy as a sinful abomination” (45). Even ignoring his status as king, David’s accomplishments were such that he was more than worthy of having a land named after him. In fact, we can’t even be certain from the text whether Jacob’s sermon circulated widely enough for this to be a major part of the way the Nephites thought of David.

This argument extends to the BofM’s utilization of the Psalms. One can admire David the psalmist while also retaining a hands-off attitude toward David the king. We moderns can acknowledge someone’s achievements and art even while recognizing they weren’t very good people.

Beshears believes the Book of Mormon can be criticized for not saying anything about David’s role as the messiah’s progenitor. But such a criticism would still be misplaced. As Beshears himself points out, the Book of Mormon presents an “uncanny level of propehtic insight that these [BofM] prophets practiced is breathtaking in comparison to the shadowy predictions of the biblical prophets. While the Old World Jews yearned for a vague, future Davidic messiah, the New World Jews eagerly awaited Jesus Christ by name and date” (22-23). This is reason enough not to expect Nephite prophecy and preaching would discuss David as Jesus’ ancestor.

Consider what it means to predict the Messiah will be the son of David. It gives the hearer something to look for to and/or a means of testing a particular person’s claim to be the Messiah. But the Nephites knew that Jesus’ entire mortal life would be lived in the Old World. That disqualifies everyone in the New World, including the descendants of Mulek, who are portrayed as sons of David. Emphasizing Jesus as the son of David would literally have no meaning to the Nephites.

To sum things up, Beshears’ basic argument is not sound. Davidic references would not show anything about BofM historicity, so lack of such references would not show anything either. Even a softer version of his argument, that it could be justifiably criticized for lacking those references, would not work very well either. Given the BofM’s dominant anti-monarchical theme, mentioning David too frequently and too approvingly would be contraindicated. In fact, doing so would actually be too jarring in its narrative. Instead of being a shortcoming, the lack of Davidic references contributes to its verisimilitude precisely because the lack of such references contributes to the development of one of the Book of Mormon’s major themes. 

NOTES

1(master’s thesis, The Southern Baptist Theological Seminary, 2016).

2Interpreter: A Journal of Mormon Scripture 29 (2018): 31-64. Page references are to the PDF version available on the website.

3I frequently found myself eliding the second m and reading “moronic” time and again while reading the thesis.

4BYU Studies 44, no. 2 (2005): 5-23.

5I have to emphasize preliminary. Joseph and Jacob are both mentioned in the Book of Mormon, but the Book of Mormon also has other characters named Joseph and Jacob. I could have easily erred in counting or discounting references. Likewise, many mentions of Jacob and Moses occur in the formulaic forms of “God of … Jacob” and “law of Moses.” I counted them, but an argument could be made that I should not have.

6Ben McGuire, “Nephi and Goliath: A Case Study of Literary Allusion in the Book of Mormon,” Journal of the Book of Mormon and Other Restoration Scripture 18/1 (2009): 16–31.

7Notably, Lindsay does not dispute this. For the purpose of this essay, I’ll take this to mean Beshears is correct.

8Another source of controversy would be the fact Beshears obviously assumes Davidic authorship of the Psalms attributed to him. I do not.

9For the record I think they are. But whatever problem Beshears thinks using the King James Version wording has for BofM translation and/or historicity, it is not a problem for the Book of Mormon itself. If it made deliberate allusions to the Psalms, as pictured in the Book of Mormon the characters had access to them. That in itself would answer Beshears argument they did not.

10Compare Lindsay’s explanation in “Too Much or Too Little?” 56-63. I draw on some of the same facts as Lindsay, but I’m taking an entirely different approach.

11All biblical quotations are from the New Revised Standard Version unless otherwise noted.

12We should not discount the possibility the Book of Mormon pictures Lehi having his own grudge against Josiah, whether or not we accept Lindsay’s argument he was “at odds with the Deuteronomists and their scribes” (58). Given Lehi’s probable age and the fact he was a Jospehite (1 Ne. 5:14), he may have been at least indirectly affected by Josiah’s invasion of Samaria (2 Kngs. 23:15-20).

13Compare 1 Sam. 10:20-24.

14Responding to an earlier version of this essay, Ben McGuire reminded me that these books were actually post-exilic and could not realistically be on the brass plates. I am aware of this, but I have other reasons for being tentative here. Even from an environmentalist perspective, it is difficult to ascertain what Joseph Smith imagined was in the brass plates. I personally think Smith had some kind of ur-text of our present books in mind without worrying overmuch about the exact contents.

15Alexander Campbell seemed to have sensed the problem: “He [Joseph Smith] has more of the Jews, living in the new world, than could have been numbered any where else, even in the days of John the Baptist; and has placed them under a new dynasty. The sceptre, with him, has departed from Judah, and a law-giver from among his descendants, hundreds of years before Shiloh came….” Campbell is alluding to Gen. 49:10. Alexander Campbell, Delusions. An Analysis of the Book of Mormon with an Examination of Its Internal and External Evidences, and a Refutation of Its Pretences to Divine Authority (Boston: Benjamin H. Greene, 1932), 12.

16Interestingly, Solomon himself is only mentioned six times in the Book of Mormon. The first two come in the same verse describing the first temple the Nephites built—the very temple Jacob will be preaching at (2 Ne. 5:16). The next three references are in the passage we now considering. The final reference (3 Ne. 13:29) is a quotation of Matthew 6:29.

17Compare/contrast BMC Team, “What Does the Book of Mormon Say About Polygamy?”

2 Sam. 12:8 specifically says God gave David at least some of his wives. This fact seems to have escaped Jacob’s notice, but exactly why this is so is unknown.

At the meta-narrative level, perhaps Joseph Smith didn’t know or recall this fact when writing the Book of Mormon. However, the Joseph Smith Translation passes over the verse without modification, so he may not have sensed a contradiction.

How this plays out in the Book of Mormon narrative is another matter. Perhaps the verse was not present on the brass plates. Or perhaps Jacob deliberately ignored it, but this opens the possibility of the Nephite polygamists throwing the verse back at him. Later, King Noah and his priests are portrayed as having multiple wives and concubines, but this is blamed on Noah’s own lust without reference to David and Solomon (Mosiah 11:2-4). So it would appear Jacob’s denunciation had some effect.

Ben McGuire suggested another possibility to me, that Lehi’s commandment of monogamy superseded the practices of the Old World. In this context, see Jacob 3:5, where the Lamanites are praised for keeping that commandment.

18It should be remembered that though 1 Kings 12 presents Jeroboam’s rebellion as authorized by God, Israel’s kings were never truly considered legitimate. Visions of the restored Davidic monarchy always portray its rulership of the reunited house of Israel.

19It is difficult to believe that both members and non-members of the church would be so alarmed by Amlici’s campaign (Alma 2:3) unless it had a real chance of succeeding. The church members’ alarm is explicitly identified as caused by Amilici’s “intent to destroy the church of God” (Alma 2:4). The cause of the non-members’ concern isn’t specifically identified. The fact Amlici was able to form his followers into an army suggests both he didn’t lose in a landslide and he thought he could win through force of arms. Compare the parallel story in Alma 51, where the king-men are reduced to simply refusing military service in the face of a Lamanite invasion.

20Pachus and his followers are pictured as a distinct group than the king-men of Alma 51. Alma 62:9 notes the “men of Pachus” being tried, “and also those king-men who had been taken and cast into prison” during Moroni₁’s purge.

Consent, Sex, and the Clit: A Response to Beckwith and Thomas

Since writing Why Abortion Is Permissible, I have been more or less looking out for counterarguments as a means of testing the strength of my argument. As of this writing, that post has generated 374 comments, but even the most serious attempts to attack the argument tended to delve into issues that have no direct bearing on the argument itself. In other forums, the slavers mostly characterized the argument as absurd but demurred my challenge that it should be easy to prove me wrong. I made a list of the things I thought it would take to defeat the argument and even came up with a new variation on the Responsibility Objection. But nobody even tried to make such arguments.

As I mentioned in the update to that post, I eventually came across references to and eventually read Eileen L. McDonagh’s Breaking the Abortion Deadlock: From Choice to Consent.¹ Among other things, this expanded my search for counterarguments. Since our arguments are so similar, criticism of her work could have implications for mine.

This approach is starting to bear fruit. I came across Francis J. Beckwith and Steven D. Thomas’ “Consent, Sex, and the Prenatal Rapist: A Brief Reply to McDonagh's Suggested Revision of Roe v. Wade” quite by accident. I was reading another paper not actually expecting it to directly reply to McDonagh. But it did, adopting Beckwith and Thomas’ counterexamples wholesale while further manipulating the scenarios to establish its own points. Parts of it didn’t quite make sense, so I began a search for the original.

Beckwith and Thomas (hereafter B&T) are obviously responding to McDonagh rather than my argument. While our arguments are very similar, meaning B&T’s arguments have implications for mine, the differences are such that it does not necessarily follow that if their argument is successful against her, it is also successful against me. However, since I don’t think their arguments are successful against McDonagh, I shall make very little reference to my argument except for illustrative purposes. Note: I am using gender terms either as in the originals or in a strictly biological sense. No implication about transgender or nonbinary persons should be drawn from said usage.

Before looking at the specifics of B&T’s argument, I would remiss in not pointing out that B&T are making a strawman out of McDonagh’s arguments. They directly acknowledge at the beginning of their paper and later directly quote McDonagh specifying that it is nonconsensual pregnancy that is comparable to rape, assault, and other bodily violations. Yet the nonconsensual part repeatedly drops out of their discussion.

So a stated purpose of the counterexamples is to show that “pregnancy, unlike rape, is not a prima facie harm.” But McDonagh never said it was. They say they are “[a]dopting McDonagh’s understanding of pregnancy as morally equivalent to rape in assault” for their first counterexample, but McDonagh isn’t saying this at all. Part of the supposed contrast between “the traditional pro-choice position” is that position acknowledges that pregnancy could be good, whereas McDonagh turns pregnancy into rape, so it can’t be a good at all. But again, she never does this.

McDonagh is saying pregnancy can be good or bad, and the distinction turns on whether it is consensual. In the same manner, the distinction between sex (good) and rape (bad) is whether it is consensual. To be sure, she is unsparing in describing what a fetus does to a person during pregnancy. While that does illustrate the magnitude of the fetus’ assault when the pregnancy is nonconsensual, it also demonstrates the great generosity of the person who does consent to the pregnancy.

B&T’s response to McDonagh has two parts. The first part is divided into two counterexamples which are both apparently meant to be reductio ad absurdum arguments.² In the first counterexample, B&T takes a point made by McDonagh, that a nonconsensual pregnancy is like rape and needs to be treated the same way, and attempts to show this has absurd consequences. In the second, they attempt to show that if we are treating the conceptus as a full member of the moral community, a woman cannot withdraw consent to a pregnancy when paternity is in doubt because that would substantially risk killing the wrong and therefore innocent person. Exactly what B&T are trying to do in the second part is a bit unclear, but the means they are using is clear. They are attempting to use the teleological premise that the purpose of sex is procreation to assert that consent to sex is consent to pregnancy. The strange sound you heard when I originally read the paper was me rolling my eyes and heavily groaning.

The first counterexample looks at a point McDonagh pressed about a suggestion that a pregnant person should simply wait until birth, at which time the coercive pregnancy will end. “This type of reasoning is akin to suggesting that a woman being raped should wait until the rape is over rather than stopping the rapist. Nonconsensual pregnancy, like nonconsensual sexual intercourse, is a condition that must be stopped immediately because both processes severely violate one’s bodily integrity and liberty” (11-12).³

Taking McDonagh seriously, B&T propose the following scenario:

A young woman is involved in a car accident and is rendered unconscious by her injuries. She is brought to a hospital where, still comatose, she is examined by a doctor. While performing some tests, the doctor determines that the woman has been pregnant for several weeks. Furthermore, suppose that evidence comes to light to suggest that the woman is unaware of her pregnancy—perhaps her close friends know nothing of the pregnancy, her diary shows no knowledge of being pregnant, and so on.

Given these circumstances, what is the doctor’s obligation here? B&T argue that if we follow McDonagh’s argument to its conclusion, the physician is obligated to immediately perform an abortion and tell the woman after she wakes up. In other words, since there is no good evidence the pregnancy was consensual, the doctor must assume it is not and act accordingly. But this could also wind up being a serious violation of the woman’s bodily integrity.

You may be inclined to respond, “Why not just wait until she wakes up and ask?” If so, you are not taking the situation seriously enough. If you came across a man having sex with an unconscious woman, would you wait until she wakes up to see if she consents to the sex? No, you would immediately intervene and stop the man. If nonconsensual pregnancy is akin to rape and they should be treated similarly, then the doctor is obligated to perform the abortion immediately.

McDonagh seems to be in trouble and my argument can’t sidestep the problem. Fortunately, these situations are not actually analogous and B&T’s argument is fatally flawed.

Focus on the man having sex with the unconscious woman. What makes us so sure that we should intervene now rather than wait for the woman to wake up and ask her if she consents to the sex? Because having sex with an unconscious person is by definition rape! See, for example, California Penal Code 261.

Contrast this with what is presented to the doctor. The doctor is treating an unconscious woman who happens to be pregnant. The doctor does not know whether the patient consents to the pregnancy. For all the doctor knows, the woman herself doesn’t know she is pregnant. Contra B&T, this is not good evidence consent had not been given and that she is therefore under assault. By itself, it’s not evidence of anything.

Consider a situation that is more analogous to the doctor’s case. A police officer sees that a passenger in a moving car is sleeping. The officer does not know whether the passenger is in the car voluntarily. This is a possible kidnapping situation. What is the officer’s obligation to the sleeping passenger? Should the officer immediately pull the car over and slap some cuffs on the driver until the passenger wakes so he can ask whether they are being transported consensually? Of course not! The fact the passenger is sleeping is not in itself evidence of anything.

This counterexample was intended to show that McDonagh’s argument was “ill-formed.” However, there are relevant differences in the cases that mandate they be treated differently. Since having sex with a sleeping person is by definition rape, one needs no further evidence before intervening. An unknown pregnancy is not by definition nonconsensual, so one does need further evidence before proceeding.

Moving on to B&T’s second counterexample:

Imagine if a woman were raped by her husband’s identical twin brother within five hours after having unprotected sex with her husband. Suppose that she and her husband engaged in sex for the express purpose of procreating a child. A month later she discovers that she is pregnant, but she does not know, and cannot know, if the child’s father is her husband or the rapist. Would she be justified in having the abortion? Apparently not, according to McDonagh, for there would be a 50/50 chance that she would be killing an innocent person, someone whom she consented to let live in her body.

This is wrong on so many levels that I hardly knew where to begin! We will start by saying the anonymous referee quoted by B&T is not wrong in saying that since the woman withdraws her consent now, she can have an abortion. But we will deal with this later. B&T contend that the referee missed the point, so we will continue here to show that they are just plain wrong on their own terms. The real point, according to B&T, is that the conceptus conceived with her husband “was an invited guest,” and to have an abortion now risks a 50/50 chance the woman is killing an innocent person.

The problem here is that it is impossible for the conceptus to be an invited guest. In order to be an invited guest, one must be somewhere that the host can issue the invitation. In other words, the potential guest must exist. I can’t invite Batman into my home because Batman doesn’t exist! As Judith Jarvis Thomson pointed out more fifty years ago, unborn persons aren’t floating about somewhere where a couple could say to it, “Come on in!”⁴

If we can’t say the prenate was invited, what can we say that preserves the original scenario as closely as possible? The closest we come is to say that preclearance was granted should the woman become pregnant. But preclearances are often conditioned by certain factors being met. Is this the case here? Let’s attend closely to the scenario.

B&T specifically stipulated that “she and her husband engaged in sex for the express purpose of procreating child.” Implicit here is that they had sex under conditions that would ensure that the husband would be the father if pregnancy resulted. Remember, the woman did not know she would be raped five hours later. Based on their actions, this would mean that the preclearance was conditioned on the certainty the husband would be the father. But since she was raped and now doesn’t know and cannot know who the father is, the conditions of the preclearance have not been met. That means she does not consent to let the conceptus live in her body, regardless of who the father actually is. She would be justified in having the abortion, even on B&T’s own terms.

At this point we need not continue with B&T’s extension of the counterexample to the possibility of executing the wrong identical triplet. That comparison depends on establishing with certainty the exact identity of the rapist, but since we’ve established the exact identity of the conceptus is irrelevant, there is no need to belabor the point.

Curiously, B&T anticipates a possible response by writing “If … McDonagh were to say … that the pregnant woman may withdraw her consent at any time…” (emphasis added). We need not wonder about this, since McDonagh outright said this:

What is more, pregnancy is an ongoing condition, defined by a series of ways in which the implanted, fertilized ovum initiates and maintains massive bodily changes in the woman. As such, it requires not just a woman’s initial consent but also her ongoing consent in tandem with the ongoing bodily changes involved. Pregnancy based on consent, therefore, does not constitute either a binding contract or a binding promise—what the law calls an estoppel by promise. (79)

In any case, B&T are reduced to complaining:

A consent that can be withdrawn at any time for any reason or for no reason—even if it results in the death of a mentally immature, rights-bearing, human being that one intentionally brought into existence and invited to be placed in a vulnerable position—is no “consent” at all. It is a will to power.

There is really only one possible response here: If so, so what? In nearly every other conceivable context, that is exactly how consent works. Just because I kiss a woman doesn’t mean I’m obliged to have intercourse with her. I can tell my employer at any time for any reason, “Take this job and shove it!” Just because I accompany a workmate toward their home doesn’t mean I’m obligated to go with them all the way. I can stop donating in the middle of a series of transfusions—even if that means the recipient will die without them. I can invite a person into my home and kick them right back out.

So saying pregnant people may withdraw their consent to pregnancy at any time, for any reason, or no reason at all is simply taking the rules that apply to everyone else and applying it to them. To say that a pregnant person must carry the pregnancy just because they initially agreed to let the prenate use their body is to say that pregnant people are not rights-bearing human beings who deserve equal treatment.

And what of the “mentally immature, rights-bearing, human being that one intentionally brought into existence?” What of it? The woman I kiss has no right to my penis. My employer has no right to my labor. My workmate has no right to my company. The sick person has no right to my blood. A guest has no right to my home. And a prenate has no right to a pregnant person’s body. That means if consent is withdrawn, the other person’s rights are not violated. To say that prenates have a right to a pregnant person’s body is to give them special rights.

This is the difference between McDonagh on the one hand and Beckwith and Thomas on the other. When McDonagh concedes the fertilized ovum is a full member of the human community with the same rights as the person carrying it, she means it. B&T don’t.

Before moving to the core of their argument that consent to sex is consent to pregnancy, we will look at a couple side issues B&T raise. B&T believe issues against McDonagh’s argument could be raised on other grounds, but they only specifically get into a couple. They try to make out a case of negligence that requires a pregnant person to carry to term. Basically, we have a duty to exercise care so that a person likely to be aborted is not created. Put in the form of a syllogism, this is how it works:

1. Pregnancy is a foreseeable result of unprotected sex.

2. The fetus is a human person.

3. Therefore, one has a duty to avoid creating persons when abortion is foreseeable.

First, let’s note the conclusion does not follow from the premises. Even if the premises are true, they do not constitute a duty to avoid creating persons who are likely to be aborted.

Second, even if it is true that we have a duty of care not to bring people into existence when an abortion is foreseeable,⁵ no case of negligence can be made from its breach. As B&T remind us, “one is liable for negligence if one (1) has a duty, (2) breached a duty, and (3) caused harm as a result of breaching the duty.” However, breaching this alleged duty results in the creation of a person whose abortion is foreseeable. No one is harmed by being created.

We can dismiss the Hand Formula on the same grounds. We don’t need to calculate the burden of preventing an unwanted pregnancy against the expected cost of an injury because, again, creation is not an injury.⁶

In the midst of their core argument, B&T takes a stab at refuting McDonagh’s contention that self-defense applies to abortion even though the fetus is not deliberately doing what it does by comparing it to defending oneself against an incompetent (and therefore legally nonculpable) person. They ask you to imagine locking yourself in a room with such an individual knowing with certainty the individual would attack you. Could you then claim justifiable self-defense if you kill that individual? Probably not, since in most cases you can’t provoke a fight and then claim self-defense. Similarly, by virtue of inviting the conceptus into your body, you can’t claim self-defense in having an abortion.

However, this scenario faces the same problem we saw in counterexample two. You can’t invite someone who does not exist anywhere. If I claimed I locked Batman into a room with me knowing this would trigger an attack, but I killed him in self-defense, I would not be sent to jail. I would be sent to an insane asylum.

As mentioned previously, I am uncertain what B&T are attempting to do with their consent-to-sex as consent-to-pregnancy argument. In their words, “If one can show that McDonagh’s philosophical anthropology is controversial, then the moral intuitions that are grounded in it and to which she appeals in order to make her case are not prima facie correct.” Assuming they have successfully accomplished the goal of showing McDonagh’s anthropology is controversial, I am not certain what this is supposed to mean. I can think of two things:

1. McDonagh’s case is not sufficient to take to court, as it were.

2. B&T have offered an alternative account for the reader’s consideration.

Either way, I don’t imagine they think they have actually defeated McDonagh’s argument. They concede as much when they responded to a referee by saying, “All we are trying to do is to show that McDonagh does not have a prima facie case…” (emphasis added). Unfortunately, this doesn’t clarify what B&T are trying to do.

In both law and philosophy, a prima facie case is one that establishes the argument is basically sound. Prima facie cases are usually defeasible either by presenting additional evidence or through the circumstances of a specific case.⁷ Prosecutors obtain indictments by proving to a grand jury that their case, if unanswered, is sufficient to establish the guilt of the accused. We have a prima facie obligation not to kill other people. However, the accused can defeat a prima facie case by presenting evidence and arguments that they are not guilty. The basic obligation not to kill other people can be overcome by the circumstances in which a person finds themselves, e.g., self-defense.

If B&T have shown McDonagh does not have a prima facie case as in sense 1, then all McDonagh needs to do is rebuild her argument so that it is stronger and try again. Perhaps such an argument would take into account the factors B&T identified.

But this doesn’t seem to be what they are doing. What they are doing is offering different evidence and arguments to show McDonagh has not proven her case. Instead of acting as grand jurors determining whether the prosecutor has enough a case to take to court, they are acting as defendants in a court case that has already begun. This would mean that McDonagh has established a prima facie case.

That leaves us with sense 2. B&T are merely trying to establish an alternative case and letting the reader decide. I myself noted that doing this has the benefit of providing interested but uncommitted third parties with clear choices. So if this is what they are trying to do, I’m not going to complain.

Yet this is not a satisfying account either. Beckwith’s history in particular militates against it. Beckwith doesn’t merely argue that abortion is immoral. He wants pregnant people to carry to term in nearly all cases, and he wants the state to legally enforce it. Merely presenting an alternative case and letting the reader decide will not accomplish this.

Indeed, I suspect B&T originally intended to offer a more full-throttled case than simply trying to show McDonagh doesn’t have a prima facie case. Their case that consent to sex is consent to pregnancy is built on the premise that the purpose of sex is procreation. Let’s take at some of the things they say:

“[I]t seems correct to say that the telos (or purpose) of reproductive organs is reproduction (i.e., pregnancy), for the sperm and ova seem designed for that very purpose.”

“Thus, to understand one’s self and one’s nature is to understand that one’s sexual organs are designed for procreation.”

“[McDonagh] maintains that it is permissible to engage in a pleasurable act whose design is to bring into existence a vulnerable, defenseless, and dependent human person….”

“[T]he mother, by virtue of the sexual act’s reproductive purpose….”

Then towards the end of the paper, they shift the goalposts and only say “procreation is part of the purpose of sexual intercourse.” Notably this happens during a discussion of a referee’s objections to their teleological argument. Apparently, the referee’s objections were substantial enough that they tempered their argument. No longer able to meet the burden of defeating McDonagh’s argument, they are now contenting themselves making a case that has a substantially lower burden.

Whichever sense they intend, once they pull back to the position that procreation is only part of the purpose of sex, their case can no longer serve either the senses discussed. In fact, their case falls apart entirely. Let me explain.

If we were to construct their case with a syllogism, it would look something like this:

1. The purpose of sex is procreation.

2. When someone consents to sex, they consent to the entire process of procreation.

3. Withdrawing consent after a child has been created is unconscionable.

4. Therefore, a person who became pregnant as a result of voluntary sex may not obtain an abortion.

This may not be a perfect representation, but it will serve the purpose. We could pick on any of the premises to show the argument is not sound, but since B&T are merely trying to show that McDonagh does not have a prima facie case, we need not actually do so at this point. Our point here is that in order for B&T to actually make that case, premise 1 absolutely, positively needs to be true. To demonstrate this, let’s change premise 1 and see what happens.

1a. Part of the purpose of sex is procreation.

Changing the premise this way renders the entire argument invalid. If procreation is only part of the purpose of sex, there is no longer any reason to believe that by consenting to sex, a person is consenting to procreation. In other words, if procreation is only part of the purpose of sex, then sex and pregnancy are severable—the very point McDonagh is making. Once severed, the idea that consent to sex does not mean consent to pregnancy has a solid foundational basis.⁸

Likewise, if procreation is only part of the purpose of sex, the argument can no longer serve as an alternative explanation for maintaining that consent to sex is consent to pregnancy. To serve as a fully fledged alternative to McDonagh’s anthropology, sex and pregnancy need to be so firmly connected that it can reasonably be said that consent to one is consent to the other. But if procreation is only part of, as opposed to the purpose of sex, the solid connection between sex and pregnancy is lost.

As part of their argument that McDonagh does not have a prima facie case, B&T try to put McDonagh in the horns of a dilemma. On one hand, McDonagh cannot deny things have a natural purpose, since that would undermine her argument that humans have natural rights. On the other, once teleology is admitted to the discussion, she can’t deny the belief that sex is part of pregnancy is at least as well grounded as her own.

I am unclear about how this is supposed to help their argument. B&T are ostensibly arguing against McDonagh’s contention that consent to sex is not consent to pregnancy. As such, whether sex is part of pregnancy seems irrelevant. McDonagh is not denying that sex and pregnancy are connected; she is arguing that they are not connected in such a way that consent to one entails consent to the other. Up until this point in their argument, B&T were arguing that sex and pregnancy are so firmly connected that consent to one entails consent to the other. This part of the argument seems to come out of left field.

Regardless, we’ll go ahead and grant this dilemma somehow rebuts McDonagh’s contention that consent to sex is not consent to pregnancy. We will go even further and grant they have successfully painted McDonagh into a corner.

We can be so generous because it is easy to cut through the Gordian knot B&T think they have tied: deny premise 1. As we’ve already shown, the ability to deny McDonagh has a prima facie case absolutely, positively depends on premise 1 being true. Even retreating to the position that procreation is only part of the purpose of sex is enough to make their case collapse. If premise 1 simply isn’t true, then McDonagh can simultaneously admit teleology and deny their case is at least as well grounded as her own.

It would be all too easy to focus on B&T’s repetitive use of the word design in their argument. Design implies at least one designer and we could simply demand B&T produce the designer(s) so the purpose of the design can be explained. That would clarify the issue once and for all. But that would be grossly unfair.

Instead, what we are going to do is look at the human species as it is. It makes sense to say that the purpose of sex for many animals is procreation because these animals only have sex when the female is in season. Nonsocial animals meet, mate, and go their separate ways.

Humans are not like this. They have evolved away from the estrus cycle entirely. Among other things, this means humans have sex even when it is unlikely pregnancy will result. Worse from the standpoint of procreation, humans have evolved to the point where even females themselves usually can’t tell when they are ovulating. This means that if a couple were trying to achieve pregnancy, they can’t tell on their own when the optimal time to achieve the 10% chance⁹ they’ll actually succeed is.

If the purpose of human sex is procreation, then nature has an insane way of showing it. Forget about sex when one partner is already pregnant, homosexual sex, oral sex, anal sex, masturbation or any number of human sexual practices that can’t possibly result in procreation. Just focusing on vaginal intercourse, the physiology of human sex can only ensure an enormous amount of waste in terms of time, energy, and resources.

Consider human breasts. Humans are the only known species to have permanent breasts. Breasts are a locus of the human sexual response, both in terms of attracting mates and in sexual activity itself. Breast play, oral and manual, is a common part of sexual activity. Breasts undergo various changes during sexual arousal, and nipple sensations are sent to the same area of the brain as sensations from the clitoris, vagina, and cervix. Some of those who possess them report having orgasms from nipple stimulation alone. It would be fair to say the human breasts serves the dual purposes of mammary gland and sex organ. This is totally unnecessary when it comes to reproduction.

And for the pièce de résistance, consider the human clitoris. As far as we can tell, the sole function of the human clitoris is to enable sexual pleasure. It literally does nothing else. All it does is sit there, waiting to be stimulated in order to give its possessor intense pleasure. Think about this: In the human clitoris, we have a fully fledged, honest to God sex organ that does absolutely nothing for reproduction. As I’m sure many people who have been pregnant can remind us, it is utterly irrelevant that the female feel pleasure for reproduction to take place.

If there is any one single piece of evidence that shows the purpose of human sex is not procreation, the clit is it.

We could of course point to other problems with B&T’s philosophical anthropology. However, that is not necessary for our purpose. We only need to show that McDonagh could get out of the dilemma B&T thought they had her in. We have done that.

Beckwith and Thomas are trying to establish that McDonagh’s argument is problematic, if not wrong. Even at this lower standard, they have failed. Their counterexamples are fatally flawed, the first because it makes an inapt comparison, and the second because it asserts an impossibility. Their effort to show McDonagh does not have a prima facie case that consent to sex does not entail consent to pregnancy also falls short. It requires their first and most basic premise to be true, and that premise turns out to be false.

NOTES

1(New York: Oxford University Press, 1996).

2I say apparently because the first counterexample is clearly a reductio, attempting to take one of McDonagh’s contentions to the point of absurdity to demonstrate her principle is wrong. The second counterexample does not have the same form. However, both are meant to show McDonagh’s arguments have undesirable implications for “the traditional pro-choice position.”

3See my somewhat more sarcastic response to a similar argument.

4“A Defense of Abortion,” in Rights, Restitution, & Risk: Essays in Moral Theory. Ed by William Parent. (Cambridge: Harvard UP, 1986), 11.

5As a sidenote, one wonders how anyone could possibly bring into existence a person whose death from abortion is foreseeable. Outside of IVF methods (and even then conception is not guaranteed), all one can do is have unprotected sex in an attempt to create such a person. But having unprotected sex is not sufficient to create a person. Furthermore, having an abortion is a decision one makes subsequent to becoming pregnant. If one doesn’t foresee becoming pregnant, one can’t foresee they are going to abort. The closest we could come is to say that a person can take a risk of becoming pregnant intending to have an abortion if it actually happens. However, since the actual decision to have an abortion is subsequent to actually becoming pregnant, there is still an opportunity to change one’s mind, meaning death from abortion is not foreseeable in any meaningful way.

6For a more fully developed explication, see Ann Garry’s “Abortion: Models of Responsibility.”

7This description is somewhat oversimplified.

8As a sidenote, if procreation is only a purpose of sex, then a similar argument can be made against the so-called perverted faculty argument.

9Foster, Diana Greene. The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having—or Being Denied—an Abortion (p. 52). Scribner. Kindle Edition.

How High the Risk? How Staggering the Cost? A Response to Matthew Braddock

In previous posts, I dealt with different forms of the argument from uncertainty regarding the permissibility of abortion. I rejected an argument based on having any doubt whatsoever about prenatal personhood because it erased the pregnant person, making the guidance cruel. I rejected the Quadrillemma largely on the grounds that the odds calculated for the impermissibility of abortion do not withstand scrutiny.

A brand new paper by Matthew Braddock, “Don’t Risk Homicide: Abortion After 10 Weeks Gestation,” has a new wrinkle on the uncertainty argument. Braddock argues that after ten weeks gestation, there is a substantial risk that abortion is homicide, and that is enough to make abortion at that point morally impermissible. One is still permitted to take that risk if the cost to oneself is staggering or to avoid greater moral risk. However, Braddock argues that the only thing that qualifies is a threat to the pregnant person’s life.

The overall impression I have about Braddock’s thesis is the stunning lack of argumentation. He asserts there is more than a 20% chance that abortion after ten weeks gestation is homicide, and that is enough to make it impermissible, but he gives only a brief, vague argument that this risk is substantial enough. He only makes token arguments against bodily autonomy and self-defense arguments, but as we shall see, they are grave threats to his argument. When he finally makes arguments to show there is more than a 20% chance the conceptus has acquired personhood at ten weeks, he doesn’t bother to assign numbers to those arguments, let alone defend them.

Let’s start by acknowledging Braddock’s basic premise is sound, insofar as it goes. If a proposed action has a substantial risk of being morally wrong, it is better not to take the risk so long as refraining from that action does not involve greater moral risk or comes with too high a cost. This of course raises a few questions: How substantial must the risk of wrongdoing be before we are generally¹ required not to take an action? How do we go about determining how much greater the moral harm must be before taking the risk is justified? Finally, how much cost must we bear before taking the risk is deemed justified or excused?

With these questions in mind, let’s turn to Braddock’s motivating cases. We can readily dismiss Braddock’s drone pilot case as presented.² According to the account, the pilot fired a missile at a home during nighttime. This means it was very likely that the missile would kill innocent persons—far more likely than the 1 in 5 chance Braddock believes is enough to prohibit abortion after ten weeks. The pilots did not even know who the actual target was, let alone whether the target was an immanent threat to other innocent people. Under these circumstances, they should not have fired in the first place! It was a little too late to have second thoughts because the pilot saw something that may or may not have been a child. By Braddock’s reasoning, they have already unjustifiably risked homicide before that point.

Braddock’s case of the demolition expert does not offer much light. Using demolitions already incurs strict liability if someone is hurt. So of course the expert is going delay the procedure even given an impatient boss. The consequences to the expert, the boss, and the company are going to be far greater than the consequences of being fired if it turns out the detected movement was in fact a child.

Braddock’s case of the person driving “like a demon” offers the best possibilities for evaluating his thesis. This case can be manipulated in various ways for determining whether such driving at the risk of committing homicide can be justified or excused. In one iteration, you are driving recklessly because you have “a medical emergency that imminently threatens your life.” Here, I agree with Braddock that even if the risk of “homicide is … substantial,” the risk is justified. I also agree with him that if the reason you are driving like a demon is because your career is at risk, you would not be justified if the risk of committing homicide substantial. In between these extremes, the relative risks and costs will have different effects on our judgment. Therefore, I will have recourse to further manipulation of this scenario as we go along.

How High the Risk?

The first premise of Braddock’s argument is there is a substantial (specifically, a “more than 1 in 5 chance”) that prenatal humans are innocent people with a prima facie right to life after ten weeks gestation. This means there is a substantial chance that after this point abortions are in fact homicide and therefore morally wrong (premise 3). Why should we accept this figure? Why not a 40% chance? Why not a 50.1% chance (i.e., more likely than not)? Why not an 80% chance? Why not a 99.99% chance? I don’t know—Braddock barely tries to defend this figure. I can theoretically accept that, other things being equal, we don’t have to be 100% certain that abortion is homicide for it deemed morally impermissible. But if you are going to name a figure, you had better justify it.

Braddock makes a stab at defending the figure by asserting that playing Russian Roulette with a five-chambered pistol is strictly prohibited, though also noting that playing with a six-chambered pistol isn’t morally irrelevant. Regardless of whether Braddock is correct in this assertion, it doesn’t support his case. The odds are 100% that the being playing Russian Roulette is a person. Regardless of the moral permissibility of playing Russian Roulette at whatever odds, the person is taking the risk on themselves, not threatening someone that is only 20% likely to be a person. This example gives us no reason to believe that killing a being that has only a 20% chance of being a person is impermissible. Since Braddock does not attempt to otherwise defend his assertion, that leaves us with no reason to believe that an abortion is impermissible if there is a 1 in 5 chance the prenatal being is a person.

It is possible that Braddock or someone else will publish a defense of the 1 in 5 figure. So for now, we will allow it provisionally, if for no other reason than to evaluate Braddock’s case that the evidence actually supports his contention that there is at least a 20% chance the prenatal being is a person at ten weeks gestation. Braddock holds his defense of this contention until section IV, but for reasons that will be clear later, we will deal with that evidence now.

How High is the Risk?

First, it should be noted that although Braddock contends his six lines of argument “establishes a substantial chance (a more than 1 in 5 chance) that preborn humans are persons after 10 weeks gestation,” he assigns no figures to these lines of evidence, let alone defends them. I agree with Braddock that the figures do not have to be precise, and that even at best can only be roughly estimated. However, Braddock doesn’t even try to put any figures to his arguments. This means that even if the arguments deserve some weight, we have no idea how much weight Braddock thinks they deserve, can’t evaluate whether they deserve that much weight, and can’t tell whether the weight adds up to a 20% chance the prenatal being is a person. Even if they come with heavy caveats, we need some figures to work with.

Worse, many of these arguments are not about building a case for the personhood of the prenatal being, but about “lessen[ing] our confidence” that it is not. Again, Braddock does not say how much less confident we should be than before. Nor does he say how this lessened confidence should figure into the cumulative calculation. Given that no one has made an argument conclusively proving the prenatal being is not a person, few people other than fools will think it is 100% certain the prenatal being isn’t a person at ten weeks. So do we add the lessened confidence to the percentage of uncertainty we already have? What if we had already thought of the argument and our percentage of certainty already accounts for it?

More to the point, what if we haven’t calculated our level of certainty or uncertainty in the first place? I hadn’t made such a calculation. As far as I am concerned, when it comes to the permissibility of abortion, whether the prenatal being is a person is irrelevant. This is why I grant it for the sake of argument. I simply had no need to calculate the odds that the prenatal being has become a person at a given stage of development.

Braddock’s first argument is probably the best. The argument is that humanity as a whole has a really bad track record when it comes to treating others as nonpersons. Whatever level of confidence we have that the prenate at ten weeks gestation is not a person, our bad track record should lessen our confidence. I have to admit, it extremely difficult to argue against this. Nevertheless, the argument is problematic in a couple ways.

First, this argument cannot be limited to prenatal beings at ten weeks gestation. The argument also means that we must lessen our confidence that a newly fertilized ovum is not a person. I doubt Braddock would object to this. But it also means that we must lessen our confidence that bacteria are not persons. And blades of grass. And dogs. And potentially every other living thing. Maybe even some things that aren’t actually alive. Braddock might try to insist that we are talking only about preborn humans at ten weeks gestation, but that still doesn’t avoid the implications of the argument. For the argument to work on Braddock’s terms, it would still have to be substantially more likely that the conceptus at ten weeks gestation is a person than any other living thing deemed nonpersons. Maybe it is more likely to be a person than a newly fertilized ovum. Maybe it is more likely to be a person than a bacterium or blade of grass. But it certainly is not more likely to be a person than a dog, let alone an orca or a bonobo. This means that if this argument is enough to tip the balance, then it would be at least as wrong to kill most animals, an implication Braddock otherwise wants to avoid.

Second, even if we could avoid the implications for killing most animals, it is doubtful the argument has enough weight to potentially tip the balance. Consider that I am not 100% certain that a newly created zygote is not a person. I just consider it highly unlikely, to the point where I would say I am 99.99%+ certain the zygote is not a person. Furthermore, the bad track record plays into that calculation. If I’m going to be fair, I would lessen my confidence the conceptus at ten weeks gestation is not a person by only 0.01% at most. That means all the other arguments will have to account for 19.99% of the probability prenatal beings are persons at ten weeks gestation. And since this is Braddock's best argument, things don’t look very hopeful.

Braddock’s second argument is that we should “lessen our confidence” because of widespread disagreement about fetal personhood. This argument is subject to the same problems as the bad track record argument. There are some additional problems with the subarguments Braddock makes here, however. That there is extensive scholarly literature reflecting upon fetal personhood without it resulting in a consensus on the topic can’t be disputed. I will go so far as to agree that this should lessen our confidence. But again, it doesn’t help much as far as weighting. That 99.99% figure I gave above about newly fertilized ova also includes that widespread disagreement. So if we’re generous and round everything up, then we get to a 0.02% chance the prenatal being is a person at ten weeks gestation.

Braddock wants us to consider the legal status of abortion around the world, citing Boland’s review of abortion laws in 191 countries. Braddock doesn’t say what this should tell us. It really shouldn’t tell us all that much. Most of our laws and customs presume personhood begins at birth. The preborn are not counted in censuses. Pregnant people are not required to obtain or present a second passport for their unborn children. Historically, tax and other benefits parents may receive could not be claimed until the child is born. The minimum age for activities such as driving, voting, marriage, military service, drinking alcohol, and so forth are reckoned from birth. Even where it is illegal, the penalty for abortion is usually not as stiff as homicide against a born person.

Then too, we must remember that of the 191 countries surveyed, 191 have a history of treating women at best as second-class citizens, and often as little more than the property of their husbands and/or fathers.³ Abortion laws are not about whether the preborn are persons; rather, they reflect uncertainty about whether those bearing them are.

As a final note, most countries that limit abortions to the first trimester cover the procedure in that its universal healthcare system. Notably, this is not the case in the United States. I shall have cause to mention this fact again later.

Finally, Braddock asks us to consider the evidence of sociological polling. Given that considerable disagreement about the morality of abortion grows after the first trimester, we should “lessen our confidence” about the personhood of the fetus. Here, we can say a number of things. First, most polls are about recording the opinion of the general populace—whether or not they’ve thought deeply about a given issue, let alone whether they have any expertise on it. For example, over a time span of nearly forty years, Gallup found that around 40% of Americans have consistently reported believing that humans were directly created by God. This doesn’t lessen my confidence that humans evolved over time—nor should it.

Notably, the higher one’s educational level, the more likely one thinks abortion remains permissible at later stages of pregnancy, a fact Braddock fails to mention. To be sure, it never reaches the level that Braddock would deem beyond widespread disagreement. Nevertheless, it would seem to indicate that those who have more awareness of the issues surrounding later term abortions aren’t as willing to rule those abortions impermissible. That should also be taken into account when evaluating how public polling should affect our confidence—particularly if you are among those who have thought deeply and/or have some expertise about the abortion issue.

This brings us to Braddock’s “motivating case” showing that widespread disagreement should lessen our confidence. He asks you to imagine being in a math class with students of comparable background and intelligence. You come up with an answer to a question. Twelve other students came up with the same answer, and eight other students came up with a different though not clearly absurd answer. What should this do to your confidence? Braddock argues you should be less confident about your answer. Is this true?

Not necessarily. Details are going are going to matter. If the twelve students who came up with the same answer are consistently getting As and Bs, while the eight who came up with the different answer are consistently getting Cs and Ds, then why should your confidence be lessened? Arguably, in this case your confidence should be strengthened—particularly if you are also one of the students consistently getting As and Bs.

This is basically the situation that we are dealing with when it comes to public polling. Those of us reading Braddock’s article (and this response) are likely better positioned than the average member of the general public when it comes to the issue of abortion, simply because we think deeply about the subject. Even if few of us can be considered actual experts, we’ve done the research, we’ve participated in the back-and-forth argumentation, and so on. What public polling tells us gives us little reason to lessen our confidence in our stances.⁴

Finally, Braddock’s argument, to the degree that it is successful, is a knife that cuts both ways. If widespread disagreement should lessen our confidence that the preborn are not persons at ten weeks gestation, it should also lessen the confidence of those who think they are. Funnily enough Braddock doesn’t mention this. However, this is a problem for him. The lessened confidence for each side would likely cancel each other out, resulting in a 0% increased chance the prenatal being is a person at ten weeks gestation.

Braddock’s next line of argument is to point out problems in various theories of personhood. First, let me say I have problems with all the different theories I’ve encountered so far, including the humanist theory he endorses. However, I am not going to detail my objections to each of these theories here. The crux of my disagreement with Braddock is not why a given argument succeeds or fails, but his reasoning.

Braddock’s rejection of mental capacity and relational theories of personhood, and his acceptance of the humanist theory turns on how well they accord with the commonsense view. To recap, the commonsense view is that infants and severely cognitively disabled humans are persons. It is not only prima facie wrong to kill them, but also prima facie wrong to use them in experiments the way we use animals.⁵ In short, they are persons with full moral status.

Thus, many criticisms of some personhood theories revolve around what they exclude according to the commonsense view, and theorists often take pains to make sure those considered persons in the commonsense view are included in their theories. But the commonsense view itself is rarely questioned.

Personally, I suspect that once we start really digging, we would find that many people holding the commonsense view are in fact self-contradictory. “Is a human infant a person?” and “What makes a person a person?” are two entirely different questions. If you ask someone the first question, they would probably answer affirmatively while looking at you like you’ve suddenly grown a third eye.⁶ Ask that person the second question, and they may name attributes that clearly exclude a human infant.⁷ Humans are not well known for being entirely self-consistent.

But testing this theory would involve expending time and money I simply do not have.

Setting aside my speculations, there is the incontrovertible fact that the commonsense view has been proven wrong time and again in other areas. The most (in)famous example of the commonsense view being wrong is planetary motion. Until the Copernican Revolution, the commonsense view was that the sun revolved around the earth. The terms sunrise and sunset are leftovers of the commonsense view. Indeed, the science of physics has a particular knack for upending the commonsense view.

The fact that the commonsense view has been shown wrong so often should, in Braddock’s terms, lessen our confidence in the commonsense view that infants, those with severe cognitive impairment, and/or those in advanced stages of dementia (among possibly others) are persons. It follows that if the commonsense view is wrong, it doesn’t matter how well the humanist theory Braddock prefers accords with it.

Where does this leave us on the question of how to weigh the probability the conceptus at ten weeks gestation is a person? Nowhere. Braddock’s concluding remark is that “confident denials of preborn personhood cannot rationally rest on confidence in these [mental capacity and relational] accounts.” But if one doesn’t rely on them in the first place, nothing is lost here. And since the commonsense view can’t be relied on either, Braddock’s endorsement of the humanist account on the basis of comportment with it doesn’t gain us anything.

Braddock’s first and perhaps only positive argument (i.e., not calculated to “lessen our confidence” of the opposite perspective) is to point out similarities between the ten week fetus and a newborn. How much the similarities can buy us is unclear. The higher apes are very similar to humans, and indeed the case that they are persons is less controversial than the case for most other animals. Nonetheless, it is still a controversial position.

More to the point, in assessing the weight of the similarities, one must also take full account of the differences. Braddock limits the differences to the facts that the newborn is “older, larger, more mature, medically viable, and born.” But these are not the only differences, and they are not even the most important differences.

Other differences between the ten week fetus and the newborn include: The fetus has organs, e.g., the placenta and umbilical cord, that the newborn does not. The newborn acquires nutrients and oxygen in an entirely different manner than the fetus. The newborn disposes of metabolic wastes in an entirely different manner than the fetus. The fetus’ blood circulation operates differently than a newborn’s. The fetus at ten weeks cannot survive outside the body of another human; the newborn cannot survive inside the body of another human. Indeed, the differences between the fetus and newborn are such that we could without much exaggeration liken them to the differences between a tadpole and a frog.⁸

Do the similarities outweigh the differences such that the ten week fetus has a 1 in 5 chance of being a person? Maybe or maybe not. The point here is that this is the argument Braddock actually needs to make.

Braddock next points to gestational age miscalculations, but I have no idea how this is supposed to be evidence of personhood at ten weeks. Whether a fetus is a person at ten weeks gestation is one thing; calculating gestational age is another. I could understand an argument that a twelve week fetus has likely acquired personhood but we should limit abortions to ten weeks in light of common mistakes calculating gestational age. How gestational age is calculated has nothing to do with whether the fetus has acquired personhood. In any case, presumably medical technology will eventually render this argument moot.

Finally, Braddock points to the “common intuitive responses” of pregnant people to their fetuses at around ten weeks gestation as evidence pointing toward personhood at this stage. As examples, Braddock points out that pregnant people treat their fetus more like a person than, say, a blade of grass. They also tend to mourn miscarriages after ten weeks in a comparable way they would mourn a newborn. Furthermore, these phenomena are fairly common even when the person has prior commitments to the pro-choice position. Surely this counts as (defeasible) evidence pointing to personhood at this stage.

However, Braddock fails to account for biological factors that are at play, not the least of which is the fact that the fetus is injecting oxytocin into the mother precisely to encourage the mother-fetal bond. The human species as a whole engages in a K-selection reproductive strategy, meaning we spend a relatively large amount of time and energy caring for relatively few offspring. Obviously, the earlier and more intense our feelings toward it, the better our offspring will fare.⁹

Then, too, by ten weeks gestation, many or most people are cognitively aware they are pregnant. This means they’ve had a chance to decide whether the pregnancy is welcome. Since Braddock quotes from The Turnaway Study, surely he is aware that a common reason for having an abortion after the first trimester is that the person didn’t know they were pregnant.¹⁰ Surely they weren’t treating a fetus they didn’t even know about as if it were a person. Just as obviously, the fact that they sought an abortion when they did learn they were pregnant means the pregnancy was unwelcome.

It is the welcome/unwelcome distinction that would seem to play the greater role in whether the fetus is treated as a person. Consider that fully 75% of the Turnaway Study’s participants were at fourteen-plus weeks gestation, with nearly half of them beyond twenty weeks.¹¹ Presumably, those who wound up giving birth did so only because they effectively had no means left to abort the pregnancy. But it would also be safe to presume they would have gotten an abortion even later if they could have.

Therefore, contra Braddock, the intuitive responses displayed by pregnant people can easily be explained and/or dismissed. Furthermore, our confidence in the “common intuitive response” argument has to be offset by the biological imperative and the wanted/unwanted distinction.

To sum up, whatever weight Braddock may think these arguments have, they are not going to add up to a 1 in 5 chance the fetus is a person at ten weeks. All his arguments are problematic to some degree, with some of them utterly failing.

It is possible that Braddock or someone else will publish better arguments that will show the fetus at ten weeks has at least a 20% chance of being a person. So for now, we will allow it provisionally so we can evaluate Braddock’s case that only a threat to the mother’s life can justify taking the risk of homicide.

How Staggering the Cost?

Braddock identifies two broad categories that would justify taking an action that comes with a 1 in 5 chance of committing homicide, the lesser risk justification and the staggering cost justification. To qualify for the lesser risk justification, one is permitted to take the risk in order to prevent a greater moral harm. Under the staggering cost justification, one is permitted to take the risk if the personal costs are high enough. We are going to first deal with the staggering cost justification.

To do this, we are going to work with variations on Braddock’s Reckless Driver scenario. Let’s start with a variation proposed by Braddock himself:

Suppose you are rushing to the hospital to save your almost severed limb and you encounter an injured child blocking your only driving path. Can you intentionally run over the child if necessary to save your limb? It strongly seems not.

At first glance, Braddock’s judgment appears correct. But realistically speaking, if you have a nearly severed limb, you are also bleeding to death. And we are already agreed this would justify risking homicide by driving like a bat out of hell. But the odds have now changed from 1 in 5 to a near certainty of committing homicide. Obviously if you can avoid hitting the child, you should. But what if you can’t? Can we say more here?

Perhaps. Let us look at the Innocent Shield scenario as proposed by Judith Jarvis Thomson.¹² Imagine someone has a tank and is driving it at you with the express intent of murdering you. You are in an open field and escape is not possible. As luck would have it, you happen to have an antitank weapon. However, your enemy knew this was a possibility and accounted for it by strapping a baby to the front of the tank. If you use the antitank weapon, you will almost certainly kill not only the aggressor, but the child as well. Are you permitted to fire? It strongly seems so.

Let’s note the similarities between the Reckless Driver and the Innocent Shield cases. In both cases, you had no intent to harm the child, i.e., you would not have harmed the child but for the circumstances. In both cases, the child is not the direct cause of the danger to your life. However, the Reckless Driver case is certainly not a self-defense situation. So now we seem to have hit an insoluble impasse.

That is, until we look at yet another similarity between the cases. In both cases, given the threat to one’s life, it is unreasonable to expect an ordinary person to not act to save their own life. If I were a juror in your case, I would convict you only on a lesser charge with a lighter sentence, and acquit if not given such an option. While I can’t say you are justified in hitting the child, I can say the circumstances partially excuses you.

This may well be a moot point since Braddock already agrees it is permissible to risk homicide given a threat to one’s life. Nonetheless, in the post-Dobbs world, doctors are hesitating to offer treatment and pharmacies are delaying prescriptions for fear of running afoul of abortion bans that nominally have life and/or health exceptions. So we could still use more guidance one what “immanent threat to life” means.

My real purpose in manipulating the Reckless Driver scenario is to test whether Braddock’s argument that only a threat to one’s life would justify the risk is sound on his own terms. Now I will manipulate the scenario even further and see where it might lead.

Let us now imagine that instead of driving recklessly, you are driving normally and legally. There is no threat to your life. Suddenly you see the child in your driving path and you cannot stop the vehicle in time. You can avoid hitting the child, but doing so means crashing into something that, while it wouldn’t outright kill you, would certainly cause grievous bodily harm. Are you obligated to incur such cost? Probably not.

My reasoning is similar to the Reckless Driver/Innocent Shield comparison. One can claim self-defense for killing someone in the face of an aggressor trying to cause serious bodily harm. Again, you had no intent on harming the child. But this time, the child is at least an indirect threat and you were not even nominally doing anything wrong. It also seems unreasonable to expect an ordinary person to incur grievous bodily harm. If I were a juror in your case I would outright acquit you, counting this a horribly tragic accident. Both you and the child were simply in the wrong place at the wrong time.

By this reckoning, it appears that grievous bodily harm is also a staggering enough cost to justify taking a 1 in 5 chance that an abortion after ten weeks is homicide. This would also raise the question of how serious the bodily harm must be to justify the risk. Presumably the answer is going to depend on exactly how high the risk is. The higher the risk of homicide, the more grievous the bodily harm must be.

But what if the cost isn’t strictly physical? What if we are talking “only” about the costs of “the physical and mental burdens of unwanted pregnancy and birth, financial costs, social costs, and the frustration of … life plans to some extent?” I have already agreed that driving so recklessly that it creates a 1 in 5 chance of homicide is not justified by a possible loss of one’s career. I outright argued the drone pilots should not have fired the missile in the first place, and I see no reason to believe the possible loss of career and a prison sentence would justify the action. However unilluminating the case may be, I also agreed the demolition expert should not set off the charges if their employment is threatened. It would seem I’ve painted myself into a corner and could be charged with inconsistency if not hypocrisy if I changed course now.

But it only seems so. The basic premise behind Braddock’s entire line of reasoning is actually flawed, perhaps fatally so. I hinted at this flaw in the Russian Roulette case, but now I want to bring the flaw to the fore. While the risk of homicide has the same numerical value, the kind of risk we are facing is very different. In the cases of the Reckless Driver, the drone pilots and the demolition expert, the risk consists of the possibility we might kill a being that we know is a person. In the case of an abortion at ten weeks gestation, the risk consists of killing something that might be a person.

Braddock conflates these different types of risks. I permitted this to show one of his arguments don’t work on his own terms. Having accomplished that, it is now time to point out that since we are talking different types of risks, we are justified in treating those risks differently. Where does this lead now?

First, the bar of what we can and can’t do is lowered. I am required to avoid harming—let alone killing—you because we know you are a person. I am not so required to avoid harming a blade of grass even though, however unlikely, it might actually be a person. I would take greater care not to harm fellow great apes or members of the dolphin family than I would for dogs and cats because I am more (though not 100%) certain the former are persons than the latter. And I would be more careful of harming dogs and cats than I would a fetus at ten weeks gestation because, once again, my level of certainty that dogs and cats are persons is higher.

Second, reasons that certainly would not justify or excuse the risk of killing a being we know to be a person may well justify or excuse killing things that only might be a person. Being late for work is all the justification I need for taking a shortcut through the grass even though there is a risk I would be committing mass homicide. As with the grievous bodily harm case above, presumably the more likely something is to be a person, the more compelling the reason must be to risk homicide.

Now let’s look at the Turnaway Study. The study shows that denying a wanted abortion comes with significant costs to the person in terms of physical health, derailed life plans, finances, economic opportunity, educational attainment, and relationships. Given that (granting Braddock’s arguments) there is a 20% chance the fetus at ten weeks is a person and that an abortion would be homicide, would any one of these costs be enough reason to take the risk? Perhaps not, but importantly that would have to be argued. Would combining two of these categories of cost be enough reason to take the risk? Again, that would have to be argued, but it is more likely. Add another category and the it becomes more likely to be reason enough to take the risk. All of them combined? It would almost certainly be reason enough to take the risk.

Moreover, multiply these costs to the tune of 150,000+ times per year in the United States (Braddock’s figure). Now we are talking about a staggering cost to society. A 1 in 5 chance the fetus is a person is definitely not enough to offset that cost.

How Low the Moral Risk?

We now turn to the lesser risk justification. According to Braddock, the lesser risk justification means that one may risk homicide in order to avoid greater moral harm. Also according to Braddock, the greater moral risk falls on the side of abortion.

To fully explore whether this is true, it is necessary to go back to Braddock’s premise 2: “If they [fetuses at ten weeks gestation] are in fact innocent persons, then killing them in abortion is an act of homicide….” Braddock is aware, of course, that there are philosophers who argue that even if the fetus is a person, an abortion is still not an unjust killing. Most of these arguments are rooted in Judith Jarvis Thomson’s “A Defense of Abortion.” This means Braddock has to deal with such arguments.

He deals with them by basically dismissing them with very little argument. He characterizes Thomson’s argument as “flawed,” but his own responses don’t inspire much confidence as they fall into the category of “asked and answered.” Moreover, however “flawed” Thomson’s original argument may be, it is obviously not fatally flawed. The fact that it is still a focus in discussing abortion more than fifty years after it was published itself means that Braddock should lessen his confidence the argument is flawed enough avoid “contribut[ing] to an already developed literature.”

Braddock is even more dismissive of arguments based on self-defense, merely presuming unborn humans are innocent. But Eileen L. McDonagh’s Breaking the Abortion Deadlock: From Choice to Consent¹³ has been around for nearly thirty years. While I don’t necessarily expect Braddock to take notice of it, my argument has been readily accessible on the web for seven years. Both argue that in an unwanted pregnancy, the fetus is an aggressor performing actions that would justify self-defense in any other context.

But let’s assume that argument is also flawed. There is still a basic problem with Braddock’s dismissal: these lines of argument presume a 100% chance of personhood for the conceptus. But Braddock is only arguing that the fetus at ten weeks gestation is only 20% likely to be a person. What might be a flawed argument under the presumption the conceptus is 100% a person may not be as flawed if the fetus is only 20% likely to be a person.

For example, every argument I make about abortion presumes the conceptus is a person right from conception. What I do is take the rules that apply to you and me and I apply them to the situation of the pregnant person and the fetus. To the extent those arguments succeed, they succeed because those rules apply to those who are 100% without a doubt a person. If they are successful given the assumption prenates are fully persons, then they are that much more successful if we are making out the odds of personhood to be only 20%.

However, the core reason Braddock can’t dismiss these arguments so easily is because they are rights-based arguments. And as rights-based arguments, they directly play into the lesser risk justification. If there is a greater moral risk in denying abortions even considering there is a 20% chance the abortion is homicide, then violating the pregnant person’s fundamental rights would certainly be it.

Perhaps a 20% chance an abortion is homicide is enough to outweigh the pregnant person’s reproductive rights (though Braddock would have have to make a far better argument¹⁴). But reproductive rights are not the only rights that are implicated in the abortion debate, particularly when the state gets involved. The right to be free from slavery or involuntary servitude is not so easily defeated, for example.

Avoiding the Risk

When Braddock turns to policy implications, he makes me wonder if he takes his own argument very seriously. If there is such a risk of homicide in having an abortion after ten weeks, and it is as grave a problem as he thinks, surely he could have spent more than a single paragraph working out what we could do about the problem!¹⁵

And what is his solution? It is obvious Braddock strongly favors outlawing abortion after ten weeks. What else? We could implement social policies to “minimize the cost faced by women in unwanted pregnancies.” But we don’t actually have to go that far. And that is the extent of his policy recommendations.

What about doing things that will reduce the likelihood of having an unwanted pregnancy in the first place? Braddock says nothing about comprehensive sex education or the provision of effective contraceptives.¹⁶ Surely if one wants to avert the risk of homicide, preventing the creation of a person in the first place is a good place to start! Perhaps Braddock omitted discussion of preventing unwanted pregnancies because he wanted to focus on actual as opposed to possible pregnancies. If so, then fair enough.

But even focusing on actual pregnancies, there is still things that could be said about preventing the risk of homicide from climbing to twenty percent. He cited Boland and even quoted Foster. He should therefore be well aware of the fact that the primary delay in getting an abortion, other than discovering one is pregnant, is access.¹⁷ Yet Braddock says nothing about access even though he asserts the violation to a pregnant person’s reproductive rights is moderated by the fact they could have an abortion before ten weeks.¹⁸

We previously noted that countries that restrict abortion to the first trimester also usually pay for them through their universal healthcare systems. This is not the case in the United States, where the Hyde amendment prevents the use of federal funding for abortions, and only a handful of states provided such funding even before the Dobbs decision. Half of the states restrict if not outright prohibit private health insurance from covering abortion. Even pre-Dobbs, 86% of US counties did not have an abortion provider, meaning pregnant people had to travel long distances in order to get an abortion. These are significant barriers without getting into regulatory obstacles such as waiting periods and TRAP laws. Yet Braddock says nothing about any of this.

Conclusion: Make an Argument!

The entire basis of Braddock’s argument is fundamentally flawed. It confounds two entirely different types of risk and treats them as if they were the same. This is clearly seen by contrasting his “motivating cases” with the actual argument he is making. In the motivating cases, the person is risking homicide by taking actions that could kill someone. But the argument Braddock is trying to make is that having an abortion at ten weeks gestation risks homicide by killing something that has a 1 in 5 chance of being a person. The rest of his argument builds on this equivocation. However, since they are different types of risks, they can be treated differently.

Even if Braddock had made a more straightforward case without the equivocation, it still suffers from a lack of argumentation. Braddock makes no argument that a 1 in 5 chance something is a person is in itself too substantial a risk of homicide to generally prohibit killing it. Indeed, he probably can’t do so without opening a can of worms he would rather avoid, such as the permissibility of killing animals that are far more likely to be persons than fetuses at ten weeks gestation.

In building the case that the fetus has a twenty percent chance of being a person at ten weeks gestation, Braddock simply says nothing about how much weight should be assigned to each piece of evidence. He doesn’t argue they deserve as much weight as he thinks they have. So even if they were successful (and we’ve seen they are problematic at best), we have no basis to assess whether they add up to at least a 1 in 5 chance the fetus is a person at that stage.

Braddock tries to argue that only a risk to the mother’s life is enough a staggering cost to justify taking the risk. But we demonstrated on his own terms that grievous bodily harm would also justify it. Once we drop the equivocation, we’ve shown that the costs to individual pregnant people and society far outweighs the risk.

Braddock dismisses arguments favoring the permissibility of abortion without considering that he changed the ground of the debate. That means he has to argue not only are those arguments flawed, but also they are so flawed that a 1 in 5 chance an abortion is homicide is still enough to defeat them. Instead, he merely sweeps pregnant people’s rights under the rug. This is especially problematic since he strongly favors bringing in the state to enforce his pronouncements without requiring it to effectively reduce the risk or the costs.

NOTES

1 Here we need to distinguish between what an individual decides is too high a risk and what is too high a risk generally. Individuals are of course free to set the bar as low as they need to feel comfortable. In most cases, not acting is entirely permissible morally speaking. So if you feel there is a 1% chance that abortion is homicide, and those odds are too high for your comfort, then you should not have an abortion. The question before us is how substantial the risk must be before no one is permitted to take the risk, other things being equal.

2 It should be stressed that I am evaluating the case as presented. A more complete account may well cover the holes in the story that lead to my conclusion.

3 As an aside, Alito’s opinion in Dobbs v Jackson Women’s Health Organization reviews the history of abortion laws in common law and the states. Alito fails to mention that nearly all these laws were promulgated at a time when women had little say and no power to effect the promulgation of such laws. I don’t know if I fully buy Reva B. Siegel’s Nineteenth Amendment argument (“Sigegel, J., concurring” in What Roe V. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision, Jack M. Balkin, ed [New York and London: New York University Press, 2005], 63-85), but I do think we should at least be suspicious of laws directly affecting women that were passed before they had the right to vote.

4 To be absolutely clear, this applies to both sides. If polls went the other way, anti-abortion proponents who think deeply about the topic, have done their research, etc., need not “lessen their confidence” either.

5 I am certainly (and Braddock is presumably) aware that the issue of animal experimentation hotly contested in both the moral and political arenas. That issue, however, is beyond the scope of both essays.

6 Yes, I’ve recently seen Doctor Strange in the Multiverse of Madness.

7 The most obvious exceptions are going to be those who would give an explicitly religious answer, such as being made in the image of God or the possession of souls.

8 Two additional things may be said here. First, we could point out the manner in which the newborn takes in oxygen and nutrients, disposes of its wastes, and circulates its blood more closely aligns with how beings we know are persons handle these functions. Second, the birth criterion is not as absurd as Braddock makes it out to be.

9 I am indebted to the person using the pseudonym “Ignorance is Curable” for this argument, as well as for pointing out the huge difference the placenta and umbilical cord makes.

10 Diana Greene Foster, The Turnaway Study: Ten Years, A Thousand Women, and the Consequences of Having—or Being Denied—An Abortion, (New York: Scribner, 2020), 5. Notably, Boland observes this phenomenon is not limited to the United States; unawareness of pregnancy as a primary reason for having a second-trimester abortion seems to be universal.

11 Foster, 20.

12 “Self-Defense and Rights” in Rights, Restitution, & Risk: Essays in Moral Theory. Ed. William Parent. (New York: Harvard UP, 1986), 33-38.

13 New York: Oxford University Press, 1996.

14 How does a 20% chance of homicide really stack up against a 100% chance of violating the person’s reproductive rights? Remember, a twenty percent chance of homicide means there is an eighty percent (i.e., a far greater) chance that it is not. Sure, other things being equal, violating a person’s right to life would be a worse violation than violating a person’s reproductive rights. But given an eighty percent chance an abortion at ten weeks gestation is not homicide, all other things are not equal here. If Braddock wants to discuss odds, he should weigh them seriously.

15 Braddock writes more about preventing fetal pain than he does about preventing the fetus being killed!

16 When it comes to contraceptives, Braddock cannot appeal to the canard of many slavers that certain contraceptives act as abortifacients. The theoretical grounds that these contraceptives might prevent implantation occurs well before Braddock’s ten week cutoff.

17 See Foster, 65 and Chapter 3.

18 Notably this leaves those who don’t become aware they are pregnant until after ten weeks out in the cold. As noted previously, Braddock should also be well aware of this fact as well.