Abortion and Infanticide: Law and the Sixth Commandment (No. 259B)

The Killing of Persons and Potential Persons

Introduction

Human society has generally regarded it as impermissible to kill people on an indiscriminate basis, rather than eliminate killing absolutely. Most societies throughout history have exercised the death penalty for crimes of varying degrees down to the most trifling of reasons; ritualizing the murder of its citizens or justifying the destruction of other social groups on xenophobic grounds, thinly disguised by rationalization.

Professing Christian countries have systematically slaughtered their own and other citizens with the most alarming savagery on the most trifling of pretexts. So also have professing Muslim countries and in even more barbaric ways. The greatest and most indefensible of the ritual murders of any group was perpetrated by the Roman Catholic Church under the Holy Office or Inquisition. This system killed millions of men, women and children and induced a large number of abortions by torture for no reason other than that the victim kept the Sabbath and obeyed biblical law (or the Koran). The last organized slaughter of the Holy Office was from 1823 - 1846 in the papal states where according to the Jesuit historian, Malachi Martin, almost 200,000 citizens were punished by death, life imprisonment, exile or the galleys and 1.5 million were subject to constant police surveillance and harassment (Malachi Martin, The Decline and Fall of the Roman Church, Secker and Warbury, London 1982, p. 254).

This organized mass murder was to reoccur on a more horrific scale in the 20^th century under Nazi Germany within predominantly Athanasian Christian countries on criteria similar to the Inquisition. Again a systematic extermination of Jews and other minority groups occurred. One instance of the slaughter of some 75,000 Serbians by a Croatian force under a General who was an Archbishop is of notable interest. The Russian record has been no less notable under Stalin, and up until recent times; with China’s record equally appalling. Pol Pot achieved a pro rata level of extermination almost unequalled.

Only recently has the notion taken hold, on any national basis, that it is impermissible to kill persons and not generally. It is more properly stated that humans regard the indiscriminate or unsanctioned killing of individuals as impermissible. It would seem, therefore , that the rejection of the concept of the sanctity of life during all of its phases, as taught by Christ and Budd ha for example , introduces the question of who may be killed and at what stage of their being.

The sanctions against taking of life can be mitigated by demonstrating that at some stage of the cycle of existence from conception to death a person is not an actual person but is either a potential person or one who has a diminished potentiality of being and hence a diminished right to existence; or a diminished right in some legal sense.

The concept of individual human rights has reached a quasi formal stage where the human rights are enshrined in the International Covenant on Civil and Political Rights and also the Covenant on Economic, Social and Cultural Rights. Unfortunately China, or one quarter of the world's population and the only permanent member of the United Nations Security Council not to have signed or ratified the instruments, is in a key position to undermine any effect of this basic concept. Other nations blatantly ignore the question and the unborn and the defenseless or the weak are in no position to influence any violations to great effect. The unborn have only the voice of the host and if the host is hostile or indifferent then there is no real defense forthcoming countering the arguments against their continued existence at present.

Arguments for the killing of the unborn or the weak are primarily advanced on utilitarian considerations reducing some suffering to the individual, or some perceived necessity of the State; quasi legal, political, genetic or ethnic grounds, or on some grounds traumatic to the individual: or on economic grounds. Often they are for cosmetic reasons or reasons of convenience. Very occasionally the argument arises from a necessity to safeguard the health of the mother in child birth.

Thus it is obvious that the most common area of concern is in the area of childbirth and childbirth which is undesirable to one or more parties or to the society. The second and rapidly increasing area of concern is the area of genetic engineering and the production of embryos under artificial conditions (and the area of cloning) which increasingly is becoming desirable from the spare parts point of view in the prolongation of life. Thus the utilitarian argument is advanced that the destruction of the potential person, i.e. one who is not yet born, is of lesser importance than the prolongation of the life of a productive older person, usually one who has enough money to pay for the spare parts. Abortion and execution for spare parts is an enormous industry in the US and in China.

This utilitarian approach entails the concept of the marginal utility of life with money as the determinant resource allocator. Ultimately this is an expression of power and it therefore follows that future decisions involving the prolongation of life will be an exercise of power. Later utilitarians might well regard the potential person as a greater vehicle for utility than the older person in a philosophical sense but that is not an argument accepted by the pro-abortion lobby except in the sale of body parts.

As the most commonly destroyed being or potential being on the planet in most dispute is the human foetus, it is that area we will first examine from an historical perspective.

Developing this enquiry we will isolate the varying theological positions, inclusive of the philosophical. The changing social attitudes to abortion will be detailed within the majority western position as an example.

An examination of the position of the State and the individual within our current legal framework and a view of the responsibility under Tort Law will be advanced and then the current liberal position examined in relation to some major objections.

From the positions put forward it will become clear why the current liberal position must deny that a foetus is a person and that it has rights, or that even its potentiality confers any overriding legal sanction against its destruction. The logical extension of this position has some alarming implications for the legal regulation of life in society.

Abortion and Foeticide

Abortion has come to embrace two distinct concepts and the terms used interchangeably.

The term, 'abortion', would more appropriately be used for the natural aborting of a foetus due to some problem of the foetus in coming to full gestation. This is dealt with at length in the article on Abortion in the Catholic Encyclopedia, Vol. 1, 1907.

The actual termination of a foetus is more appropriately termed 'foeticide' but due to the practice of modern euphemism it has come also to be termed abortion.

The History of Foeticide

The controversy over abortion or foeticide as it was formerly termed has ranged from such extremes of position as from the conservative viewpoint of the old rabbinical school which viewed the abstention from or failure to procreate as akin to murder and the new radical feminist position on the other extreme which regards foeticide as morally innocuous; as morally innocuous as cutting one's hair or fingernails.

Both these extremes and the intermediary positions involve the question of what constitutes life, what is a person? Is a foetus a person or a potential person: and is it permissible to take life? From a general position on life usually adopted, i.e. that it is impermissible to kill persons, the question arises, is it permissible to kill potential persons, i.e. Terminate a foetus?

The Rabbinical School saw the production of young as a blessing of God which was essential to the prolongation of the nation in a sense that entailed utilisation and maximisation of potential in the nation. The protection of the foetus was enshrined in the body of theological law according it the status of a person in its own right. More importantly the biblical definition of when life began is that the Blood is the life thereof and thus when blood is formed life is extent. As blood begins to form in the first week of the zygote we must deduce that life forms in the first week of the zygote. Thus the responsibility to make alive commences in the first week of the zygote. It can only be compromised when the foetus threatens the life of the parent and thus the life of the Mother takes precedence over that of the foetus.

Now the counter argument that has been advanced by the feminist tradition seeks to undermine the traditional concepts of the foetus and the rights accorded to it on the claim that it is not a person and does not have life and that its potentiality confers on it no status or rights other than that granted it by the mother whose body it uses. Hence the eradication of the foetus as an unwanted intrusion is morally innocuous.

The argument that the foetus could develop into a severely retarded individual is also used to justify abortion. A similar argument is also used in the case of rape. The issue is one of consequence. These instances are usually the result of some breach of law or ethics and carry the implication that because an atrocity or crime has been committed or some breach of moral or genetic code then a further action is justified. It has been decided in relation to this matter by the U.S. Supreme Court that because one atrocity had been committed they would not condone the commission of another by permitting an abortion. This seems to be essentially correct in respect of our current body of law which does not seek to rectify the commission of one atrocity by the commission of another.

The law is based on a concept of restitution and even in the biblical structure the theme was one of restitution. The doctrine of an eye for an eye and a tooth for a tooth was essentially restitutional. The concept of consequence was required to be visible.

The maintenance of the extended family or tribe was necessary by the protection of its members through legal sanction and this necessarily entailed the protection of their life through the maxim “thou shalt not kill.”

This law was obviated amongst the Canaanites by religious sacrifice to Molech of unwanted children in some degree reducing the demand for abortion.

It appears that the demand for abortion originates from change in the structure of a society and a change in the status of women within the society. It seems to operate as a mechanism of convenience.

Up until the first quarter of this century A.E. Crawley was able to say in The Encyclopedia of Religion and Ethics, ed. Hastings in the article Foeticide, Vol. 6, p. 54-57 that "destruction of the human embryo has not among any people become a social habit as general infanticide has done among some modern primitive communities and among the ancient Greeks and Italians." In two areas of Indonesia (Tenimber and Timorlaut) it was said to be unknown as a possibility. The most prevalent reason was poverty and the same reason which induced the crime of infanticide induced foeticide as an earlier preventative of the same social problem. It was thus parallel also with contraception.

It was also able to be said that:

“Among the lower and the higher races alike the moral objection to the crime varies directly as the social consciousness of the duty of augmenting the birth rate. Hence it may be laid down that infanticide and foeticide tend to decrease with the passage from a natural to an artificial method of subsistence. Where agriculture and pastoral culture are established, the importance of numbers is realized.''

“In a secondary degree the objection varies inversely as the sexual morality, dependent upon the matrimonial system of any given people. Cases of mere luxury as in pagan Greece and Rome are of little significance. Westermarck observed that the same degree of sympathy cannot be felt with regard to a child not yet born as with regard to an infant and that foeticide was committed among people who never committed infanticide” (ibid).

Whilst infanticide is absolutely condemned in biblical law, foeticide is specifically mentioned in relation to consequential damage either to the woman or the foetus at Exodus 21:22-25. The following analysis will show that this is evidence that the foetus was absolutely regarded as a person and that its killing or maiming was regarded generally with infanticide, as a breach of the law, and as a breach of the obligations of parenthood and of the blessings of a family.

The passage at Exodus 21:22-25 makes two distinctions in relation to the damage to the woman with child and these are dealt with by Rousas John Rushdooney (in The Institutes of Biblical Law - The Craig Press – 1977, pp. 263ff.). Rushdooney deals with Cassuto's and also Keil and Delitzsch's comments on this passage and the comments are summarized as follows:

If men in a physical dispute, unintentionally injure a pregnant woman so that they prematurely induce the birth of the child but in the process no fatal injury is done either to the woman or the child then the one who hurt the woman is to be punished by a fine which is nominated by the husband and determined by appeal to arbitration, dependent upon the extent of distress or damage experienced by either the woman or child.

If no injury is done either to the woman or child/children then a fine is still imposed because of the potentiality of endangering life. However, if the incident results in the death of either the woman or child (or children) in the womb then “thou shalt give life for life.” (KJV)

(Moffatt translates by grouping with life for life; eye for eye, tooth for tooth etc. This is established case law on the matter.)

The Antinomian, Grace eliminating Law, arguments get themselves into a serious fix (especially amongst protestant groups on the argument on Grace) because the application of the law for them does not apply, eliminating accountability and a coherent moral terms of reference.

Prior to the Antinomian position the early Christian church obeyed biblical law completely, including the food laws. This was so up until the Councils of the fourth century in the Mediterranean area generally centred on Rome, and in the case of the Celtic church, up until the Synod of Whitby in 663/4 CE.

According to David L. Edwards (Christian England, Vol. 1, Collins Fount, 1982, p. 27) the Celtic church took the Bible literally, "obeying it wholeheartedly; even the food regulations in the Old Testament were received as the law of God."

Now when the church councils under the Roman Athanasian system altered the laws of the Bible by Canon, altering also the festivals and holy days, then they did so solely on the authority of the church. When the reformation occurred which denied the authority of the Athanasian church at Rome then a moral inconsistency entered the Protestant position. By denying the authority of the Roman system they had no basis for the structure of worship they observed and should have regressed to the original biblical structure, but they did not do so except for some attempts during the reign of Henry VIII and Cromwell in England.

In order to justify the position the Antinomian argument was developed which held that grace eliminated law and hence the Christian was not saved by obedience to a cod e of law, biblical or non biblical.

Now this introduced a serious inconsistency into the moral thinking of the protestant people. The Bible was held as the basis of the moral code, yet people did not obey its precepts on even a weekly basis. This affected concepts of the sanctity of life and the inherent biblical pacifism.

The moral standards became incoherent in terms of biblical absolutes. The moral terms of reference had been altered and relative in terms of its relationship to any formal authority.

This was so evident from the outset of the Reformation that Antinomianism immediately established itself in Germany from about 1535. It is from this incoherency that moral relativism became prevalent, although it may always have been seen as an aberration of philosophy.

From an examination of the biblical statements what does emerge is that the biblical position equates the foetus with the life of a man or a woman on an equal basis.

The only relative inequality afforded the foetus is under Jewish biblical interpretation. Michael Asheri (in Living Jewish, Everest House, USA, 1980, pp. 101-102) states that therapeutic abortion is mandatory even over the woman's objections. The foetus is to be killed during birth to save the mother. Only when the head appears out of the womb is it accorded separate life from that of the mother. Thus it is permissible to kill potential life to save the life of the mother and in this case it is mandatory over the objection of the mother. From an examination it appears that this is the single exception to the position based on the sixth commandment. The obvious exception will be that the child can be saved by caesarian section and spare the life of both mother and child.

There does appear to be a position derived from the seventh commandment at Numbers chapter 5:27 which based on an accusation of adultery induces the infertility of the mother on the basis of divine intervention arising from her drinking the waters of bitterness explained in that chapter. The attendant death of any conceived foetus in its early stages would appear obvious from the description but must be deduced from the wording and remains implicit. At any rate no human agency is required.

This position has led to the extrapolation that as the breath or the nephesh is the spirit of men within biblical law (the soul being a later aberration in Christianity adopted from the Babylonians via Mithraism and Philosophy), then the foetus has no life of its own. From this it has no rights as an individual. Clearly this is not the case from the law at Exodus 21:22-25. If accidental death of the foetus is a crime punishable by death then obviously its premeditated killing is a standard breach of the sixth commandment. Indeed the US Congress has legislated in September 2015 that the killing of a baby that lives after a botched abortion is the crime first degree murder.

The position of the nephesh is that the woman has the child as her responsibility. It is a separate entity with its own blood supply or fluid system fed through the placenta. It therefore has life.

The argument that it does not draw breath is a misuse of the concept of the nephesh where, ab origine, it was the creation of man. The child draws oxygen from the mother through the placenta. The arguments that this does not apply from the zygote to the 10th or 12th week are fallacious in that the system is exercising its normal unassisted division and growth to establish its blood supply system from the primary foetal structure. That this division can produce two or more beings is not a limitation on the rights of either the single or the other foetal structures.

The argument from potentiality of being (applied to the human species) is relevant, or necessary, only if it is denied that the structure, from the zygote, is not a being in its own right, which clearly it was from a biblical point of view. That it could be killed if it endangered the life of its mother was merely the correct exercise of the sixth commandment, thou shalt not kill, in that it would take the life of its mother albeit unintentionally but none the less systematically.

Similar theories are found, not surprisingly, within Islam and also in Hinduism. “Hinduism and Islam show an inconsistency between theory and practice.” (ERE ibid.)

In India it became common practice on a large scale yet it was specifically outlawed by the Aryan Laws (see Sacred Laws of the Aryans (SBE ii (1897) 74,281) where it was placed in the same category as homicide etc.

The Arthavaveda denounces the bhrunahan, the abortionist, whose name and crime end the list "beyond him who has committed an abortion the sin does not pass" (ibid. SBE xiv (1882) 133); see Laws of Manu (SBE xxv (1886) v. 90 as quoted in ERE).

Similarly for the Vinaya Texts of Buddhism, the procurer of a foeticide is grouped as "who intentionally kills a human being, down to procuring an abortion, is no Samana, and no follower of the Sakyaputta."

The Avesta has a detailed condemnation of foeticide, theorizing on the date at which the embryo becomes animate. From the Vendidad (xv.13ff.) the crime is on the head of both the father and mother and also on the head of the abortionist with the penalty the same as that for wilful murder. The official Zoroastrian period when the foetus was formed and received a soul was four months and ten days. (see also SBE iv (1895) 177ff), (ibid).

From Mills' translation of The Zarathushtrian (Zoroastrian) Gathas (Oxford 1892 and Leipzig 1894 (published AMS New York 1977, especially LIII 2-5 pp. 377-387) it becomes obvious that the Zoroastrian position was one of proper purpose as between man and wife. A harlot and felon embody the antithesis of the goodness and purpose of the acts of procreation. (This is possibly clearer from the Pahlavi translation on p. 384.) Foeticide is thus denied to the followers of all the major world religions, Judeo-Christian, Islamic, Hindu, Buddhist (and also Zoroastrian which influences the latter two). These religions rank abortion or foeticide clearly and distinctly with homicide, i.e. Infanticide and make no distinction. There is a distinction in once case in the life of the foetus.

Only Zoroastrianism and Greek philosophy via the Hyperboreans, by the peculiar Babylonian doctrine of the soul, establishes the concept of a latest possible time for united cells to become a legal foetus.

The regularizing of the facility of abortion was established by the Greeks. The Greek view was that the right of deciding rested with the mother and this view has been returned to in the twentieth century, but only recently has facultative (foeticide) abortion been embodied in our current social morality.

According to Balestrini (A borto etc Turin 1888, p.191)

“Whenever abortion becomes a social custom , it is the external manifestation of a people's decadence and far too deeply rooted to be cured by the mere attempt to suppress the external manifestation.” (tr. Crawley ibid. p. 56)

Plato (from The Republic V.460f) as part of his eugenic proposals recommends foeticide where the parents are past the age for procreation. This stems from the Hellenic tradition that no imperfect or deformed children should be allowed to live, Aristotle carries this on to recommend foeticide before the foetus is animate in cases where the mother has already given birth to a number of children “enjoined by the State." (Pol.VII 16.1335, also noted by Crawley). The Romans carried on foeticide for reasons of poverty, sensuality or luxury.

Seneca (at Digesta xxv 3,4; Seneca ad Helviam, 16) says that it was practiced by fashionable women in order to preserve their beauty. The Antonines attempted to sup press this wastage of children.

According to Crawley the "Greeks and Romans made a commencement of speculation as to the biological value of the embryonic life. Distinguishing sharply between foeticide and infanticide, they put it that the unborn child was not homo, not even infans but merely a spes animantis” (ibid).

This view was rejected by Tertullian (at Apology: 9) when castigating all forms of infanticide then common both in Africa to Saturn, to Jupiter generally, or to Mercury in Gaul, "In our case, murder being once for all forbidden, we may not destroy even the foetus in the womb, while as yet the human being derives blood from other parts of the body for its sustenance. To hinder a birth is merely a speedier man killing; nor does it matter whether you take away a life that is born, or destroy one that is coming to the birth. That is a man which is going to be one; you have the fruit already in its seed.” (The Anti-Nicene Fathers, Vol. III p.25, T& T Clark - Eerdmans 1986 reprint.)

From Tertullian's interpretation of biblical law above, Christians are denied foeticide as infanticide.

The Greeks, through philosophy, which was of itself a religious development of the Hyperborean system, (a form of ritual purification of the “wheel of birth” involving the Indo-Aryan doctrine of the soul and transmigration) developed the concept found in Zoroastrianism of the theory of embryonic animation. This no doubt was inherited by the Zoroastrians from the Magi, a sect derived from neo Babylonian Animism and later Shamanism. These sects later became serious rivals. The Hyperboreans derived their forms of shamanism from the same source.

This religious concept involving the soul was carried to the Greeks via the Hyperboreans. (See J. Burnet,Early Greek Philosophy, 1948 pp. 81-84.)

Aristotle was to develop this to hold that the soul of the zygote at conception was the vegetative only, that after a few days it was informed by the animate soul and later by the rational. His followers distinguished between the male and female embryo in the date of animation. The male was regarded as being animated forty days after conception; the female eighty days (curiously this relates to the periods of purification after birth in the Bible).

Later the moment of animation was fixed for both sexes at forty days and the Roman jurists adopted this view. (Leckey, History of European Morals, London 1890 ii 21f.)

Thus there became a general distinction between the animate and inanimate foetus which penetrated canon and Roman Law and lasted until modern times.

Augustine was to expand the doctrine of the soul as 'informatus' and 'formatus' within the embryo. The embryo formatus “is endowed with a soul; it is an animate being; its destruction is murder, and is to be punished with death.” (From E.R.E. as above). This was confirmed by the Sixth Ecumenical Council and during the Middle Ages women guilty of the crime were condemned to death. Destruction of the embryo informatus resulted in a fine.

From this pagan doctrine of the embryo formatus and its adoption into the Athanasian Church, with the adoption of the custom of infant baptism, it became established that the embryo formatus also was baptized. Augustine had stated that the embryo might share in the resurrection and Fulgentius developed this into the pagan aberration of it suffering eternal fire and damnation in hell without baptism. The biblical concept (from Rev. 20) that all men, baptized or not, share in the second resurrection was not understood by him.

The Athanasian Church Councils later have made no distinction between the periods of gestation, condemning all foeticide as murder. Plato and Aristotle held the normal Greek view that the mother possessed the right of abortion. In general, Roman practice held that the father alone had the right to order abortion (Balestrini, p.30f).

The possibility of foeticide, theologically, has passed into the society through the effects of Babylonian theology on Christianity through Greek philosophy and pagan Rome, where the syncretic adoption of Chaldean theology with its attendant soul concept allowed the distinction to be drawn between stages of the foetus. No religion permitted the destruction of the animate foetus. Greek adoptions of the Chaldean doctrine through philosophy allowed the destruction of the “pre-animate foetus” and adoption by the Stoics, which saw the foetus as merely the fruit of the womb, allowed the destruction of foetuses on grounds of euthanasia, and racial purity or convenience.

The arguments of modern day are logically extensions of the past debates of convenience; the radical feminist using similar rhetoric as the Greek and Roman females from positions of self interest. It is established beyond question that theologically within the world's major religious systems as developed, foeticide is homicide and there is no distinction in the crime. The distinction made in the status of the foetus at varying intervals stems from Zoroastrianism and the Greek derivative of Chald ean theology, i.e. Philosophy. The distinction being, as the Greeks understood it, of the vegetative and animal soul. The later Roman Athanasian Christian position developed from this and the lesser early status of the foetus became known as the embryo informatus. Thus began the quest of exactly when can an embryo be killed. Biblically and within Islamic, Hindu and Buddhist structures the answer is that after conception - never; unless in (the Judaic case) it endangers the life of the mother, which appears to be the correct interpretation of the biblical laws.

The destruction of the foetus in this instance is distinguished from homicide on the principle of restitution. In preventing the foetus from breaking the sixth commandment the life of the mother was restored. The death of the foetus prevented the systematic killing of the mother, even though the foetus was unaware of its actions it nevertheless fell under the law in this instance. Having examined the theological position let us now look at the current medical and philosophical position on the matter.

Modern Attitudes to Foeticide

Within the last twenty-five years, abortion or foeticide has gone from a socially unacceptable and criminal action to one of public acceptance within the legal framework of most of the more advanced nations of the world, including the English speaking countries, East and most Western, Europe, the Soviet Union, China, India and Japan. Only in Latin America, Africa and parts of Asia are the old prohibitions still in effect.

Dramatic shifts in public opinion have occurred in all of these countries involving the concept and sanctity of human life. L.W. Sumner (Abortion and Moral Theory - Princeton 1981) has examined this dramatic shift in opinion and makes reference to the works of Badgley (1977 pp. 459-460) in Canada, and Lane (1974, Vol. 2 pp. 20-23) in Britain, who have demonstrated that the majority of public opinion favours at least a moderate policy permitting legal abortion.

These dramatic changes in attitudes have seen the polarization of attitudes over the issue of abortion dominated by two groups which Sumner sees as the pro-life lobby advocating traditional restrictive policy and feminists lobbying for the reform or repeal of abortion laws. “The political goals of these parties are quite obviously incompatible" (ibib p.4). Abortion is a moral problem which, as there is obviously no unanimous action or wrong doing in this case, but rather a division of opinion on the matter, therefore presupposes some conflict of interest, values or goals.

The conflict is in effect a debate about the ordering of society. It involves the question of the construction of a family and the structure of society. It involves the question of responsibility and purpose of the union and interrelationship between individuals and the responsibility to the continuation of a society.

The argument over killing a foetus involves much more than terminating an unborn life, it involves the relative value of life for individuals within those groups.

As the debate is forming, the question is becoming not only what the value of life is, but when it should be applied. The question of what constitutes the right to life based on some arguments such as that of Michael Tooley, extends beyond the foetus to embrace cognizant and non cognizant beings and those to which a conceptual value or capacity can be attributed. This must make the value of life relative, being diminished in individuals by some arbitrary factor such as conceptual ability or diminished capacity. Thus life must necessarily be attributed a relative value between individuals and this must allow the extension to euthanasia and other concepts.

The extermination of the mentally retarded or psychiatrically disturbed must follow on from these assumptions.

The debate is turning into a highly emotive issue of confrontation. To understand the reasons behind why abortion is desired is to go some distance to resolving the problem.

An interesting work was edited by David Friedman, Van der Tak and Sevilla entitled Abortion in Psychosocial Perspective, Trends in Transnational Research (Springer, New York , 1978).

From Kellerhals, Pasini and Wirth Abortion Seeking in Switzerland in the above (at pp. 34ff), two matters are discussed in understanding abortion. One, the social meaning of the child and two, the high rate of contraceptive failures.

The meaning of a child and its social identity proceeds from the function he fulfils. This element, the social visibility of the child, is changing rapidly because of the nature of the contemporary family and the number and size of the group within the family which influence the fertility of a couple.

Firstly, because of its nuclear and neolocal nature the new child must not “disturb the pattern of tasks and leadership division in the family of origin.” (emphasis added) .

Secondly, “the biblical nature of the filiation entails that no steady and definitive group can be formed as a co-operative unit beside the nuclear family.” (This view is logically absurd.)

Thirdly, “marriage by affinity implies that, as a rule, the families of origin; as they loosen their control over the new spouses, loosen it as well over the new family's offspring."

“To sum up, the contemporary child tends to have meaning for the parents only and no longer affects the equilibrium and dynamics of much more extended groups, as was the case in previous situations. Of course, there remain ties between the extended family and one or another child, but these ties cannot be compared in their nature to those existing in a large number of preindustrial societies. (Michel 1972).” (ibid p. 37-38)

The social function of the child has changed with the diminishing nature of the family. In the large extended agricultural family, the child had a perceived economic and man power function and in cottage industries from an early age. The social care of the young was a reciprocating factor in the care of the elderly and in the extended family this was mutually interdependent.

This had a negative effect on the childless couple and could lead to procreation for status reasons but generally the wealth of the nation was served by the maintenance of a young and stable population base which tended to be aggregations of extended families in the village/shire context. Healthy children and stable families were generally seen as blessings from God which of itself was an incentive.

With urbanization and the nuclear family came a reduced function for the child and a narrower social presence. Social security created the illusion of transferring the onus of care of the ageing to the society without the realization that the society was merely an extended family. The result was a narrowing population base and an ageing population.

The inevitable economic result is an ever increasing burden on fewer people. This result, however, is not as yet fully realized.

We are currently in the transient phase from the nuclear family into the disintegrated family, however, this will b e dealt with later.

The birth of a child has become less inevitable and less desirable. Women have come to regard the costs of procreation as deferrable and an interference in a materialistic world. Childbirth makes the woman more vulnerable than the man and when she sees herself involved in a competition for power and wealth for individual gratification with short term security, the child is removed as an obstruction.

Life pair bonding is decreasing because of changing social perceptions and self gratification. Disintegrating family relationships reinforce the trend either to divorce or de-facto and transitory bonding further reducing the incentive and the environment to produce.

The assistance given to the couple or unmarried mother is reducing, (especially when compared with the preindustrial extended family). The assistance, either from social security or other members of the family is of minor importance. In Australia, the assistance, whilst reasonable economically, is not in the major areas of importance which are in the psychological and environmental areas rather than the material. The child has a diminished environment compared to the extended family. The pressures on the mother increase thereby increasing the demand for abortion. Kellerhals et al make an important point in their pa per.

“Childbirth has two aspects, a concrete one and a symbolic one. In traditional Switzerland, as well as in other societies, the concrete aspect proceeds from the 'material' functions of the child; while the symbolic one lies in the expression of the couple's relationship with God or the extended group. In our present society, the concrete aspect lies in the emotional gratifications expected by the couple from their child, while the symbolic aspect lies in the expression of the emotional relationship between husband and wife, of which the child is the token.

As a consequence, the child has meaning only if the couple agrees that the quality of their relationship is such that it justifies being symbolized in procreation and that the investment involved in raising a child is a more rewarding one than other activities with which it is in competition, e.g., travel, professional involvement of the woman, improvement of the couple's standards of living, etc. If these two conditions are not present, having a child may appear to be an unbearable burden.” (ibid p. 39).

The value of the child changes here from continuity of child, potential adult and economic factor to one where "childhood becomes a privileged age endowed with its own wealth, its own value, and its own mode of balance quantitively different from that of the adult" (ibid). The child's existence depends entirely upon the extent to which it can gratify the parents.

The child becomes an object which must possess “all the attributes of normality and modernity expected by the parents”(ibid).

This has really encompassed the conflict between the needs of society as a whole and the perceptions of couples or unmarried mothers.

The requirements for the maintenance of a healthy stable society with a population in balance is in fact at odds with the decisions made by individuals or couples in nuclear or disintegrating families from materialistic or hedonistic considerations.

The increase of financial assistance to mothers or couples and better social security coverage may not help radically to reduce the number of abortion requests.

The problems lie in the cultural status of the child and the attitude to stable family units and primarily the role of motherhood itself.

Birth Control

The attitudes to birth control are of considerable importance in the incidence of the demand for abortion. The birth control methods used by the applicants for abortion in the Swiss case are as follows:-

No Method 31.2%

Rhythm Method 27.6%

Coitus Interruptus 16.0%

Pill, IUD diaphragm 16.5%

Condom

Other Methods 8.7%

The low level of birth control use is not unique to this sample. According to the study, other studies in the same subject have produced similar findings (Bassand, Kellerhals & Wirth 1974) (ibid).

The figures are distributed as follows:-

No Method: 80% of the occasional/unmarried practiced no birth control; 15% married couples.

Rhythm Method: Over representation of Catholics revealed in survey (see p. 41 re Ideological conflict).

Coitus Interruptus: 80% Italian/Spanish; 20% Swiss (and predominantly Catholic).

Pill, IUD Diaphragm, Condom: Assumed even distribution.

Other Method s: Assumed even distribution.

The figures show that the significant majority of those requesting abortion in the Swiss example are Catholic and reveal an ideological conflict. This further adds to the limitation on available information re. birth control and educational levels further limit the information. An interesting feature of the study was that the ideological position was seldom given as the reason for not practicing contraception from the table at p. 43, presumably because abortion is likewise prohibited. The theological teaching therefore induces intense psychological conflict. Only 3% of the 906 women in the study intended to use abortion as the primary method of birth control. Why then did 97% end up "in a situation which was both physically and psychologically uncomfortable for them?

The answer appears to be that many people could not overcome the psycho-cultural taboos that went with the decision to practice contraception,” (ibid p.42), but were able to justify, a posteriori, the abortion on economic grounds or the welfare of other children etc.

Sometimes, also, there is a deep desire for pregnancy, "sometimes so visceral and emotional that it can thwart any endeavour towards family planning. This has strong cultural basis which sees the child as fulfilling normality, power, etc., so that the desire for pregnancy can exist but not the desire for a child. This was found to be especially so for adolescents and women over forty.

Insufficient information and aversion to contraception resulted in passivity in the use of contraception but did not restrict sexuality.

Sometimes repeat aborters display sado-masochistic tendencies (Pasini 1974), expressing hostility, or the implicit punishment of guilt-ridden sexual relations or as the epiphenomenon of a failure oriented behaviour pattern. Repeat aborters comprise about 15% of the sample.

It can be said that there is a deep desire for pregnancy within women which when coupled with disintegrating family relationships and a preoccupation with self centeredness and a drive for power over others, results in a social thrust or trend which is not controlled adequately by education or social awareness and responsibility. This is further hampered by an absurd religious position on contraception which does not logically distinguish between parts and a composite developing structure.

The question of optimum family size is a separate issue of advanced social planning.

Where the State has no theological position then the availability and use of abortion accelerates, often by directive of the State.

Where population control is a major factor then abortion becomes a standard passive form in these structures.

For a State that has no absolute moral values such as biblical law, then moral relativism produces variable decisions on the right to life.

It can be argued from the punishment of David for numbering Israel that population planning and control is anti-biblical. This is probably not correct, as the question was of dependence on God through faith, not strength of numbers.

Abortion, Jurisprudence and Parenthood

The view that feminists tend to argue that they alone have the rights over their bodies and that a foetus may be regarded as an unwanted intrusion on their sole right to enjoy their bodies is fallacious.

Abortion was considered not only an immoral act but a crime for centuries. Within British Criminal Law abortion was consistently a criminal offence. Patrick Devlin in Enforcement of Morals (Oxford 1987 print) has drawn attention to the relationship of morals and the criminal law and some aspects of the Report of the Committee on Homosexual Offences and Prostitution known as the Wolfenden Report. This report had a singular impact on the field of jurisprudence in that it set out “clearly and carefully what in relation to its subjects it considers the function of the law to be.” (p. 1) (This 'statement of juristi philosophy' was debated in the House of Lords on 4 December 1957 - Hansard Lord debates, Vol. CCVI at 738 - and was contributed to by the Archbishop of Canterbury at 753 and Lord Denning at 806). Devlin comments that “Statutory additions to the Criminal Law are too often made on the simple principle that ‘there ought to be a law against it’. Adultery, fornication and prostitution are not, as the Report (para 14) points out, criminal offences: homosexuality between males was then a criminal offence but between females it is not” etc. Tradition has it that female homosexuality was left out of the criminal statutes because of a reluctance on the part of the then Prime Minister to offend Queen Victoria by having her entertain such a proposition as a fact.

The committee stated its position on the function of the criminal law (para 13) as follows:

“'Our own formulation of the function of the criminal law so far as it concerns the subjects of this enquiry. In this field, its function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence. It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined” (Quoted by Devlin, p.2).

At para 61, the Committee stated what it considered a decisive position, “namely, 'the importance which society and the law ought to give' to individual freedom of choice and action in matters of private morality. Unless a deliberate attempt is to be made by society, acting through the agency of the law; to equate the sphere of crime with that of sin there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business. To say this is not to condone or encourage private immorality." (Devlin p.2-3).

We have seen that theologically abortion is impermissible as was adultery, fornication, prostitution and homosexuality. To proceed to the philosophical area of jurisprudence, once it has been divorced from an arbitrary moral rule, the committee holds that (in the case of prostitution) no case can be sustained, the Report says, for attempting to make prostitution itself illegal (para 224). Now this distinction of itself must be based on a theory of causation which does not acknowledge any moral or metaphysical absolute. However, even allowing the moral relativism and the concepts of private morality necessary to sustain the admission of the above four positions, from the philosophical position of the law and jurisprudence this cannot be extended to abortion. From this position of special vulnerability extended to the young, weak of body or mind, inexperienced and those in a state of special physical or official dependence, abortion could not be permitted and it is the duty of the law to intervene.

The foetus falls within every one of these categories. The argument that the foetus does not have the concept of X, therefore it does not have a right to X must be dismissed because of the function of growth, experience and necessary dependence. Tooley and others would argue against this point.

In the enforcement of the law, Devlin draws attention to the distinction between the criminal and quasi criminal, the mala in se and the mala prohibita which he sees as becoming blurred. He supports the theory advanced by Dr Goodhart (in English Law and Moral Law, 1953, p.18) from that of Sir Frederick Pollock. Devlin say s:

“The sense of obligation which leads the citizen to obey a law that is good in itself is, I think, different in quality from that which leads to obedience to a regulation designed to secure a good end. In the first the judgement of the State and the citizen on what is good and what is evil should coincide and so obedience to the law is an end in itself; in obeying it the citizen is doing a good thing. In the second their judgement that the end is good should coincide but their judgement on the efficacy and propriety of the means chosen to serve that end need not coincide. Frequently it does not, but the citizen accepts that the choice of means must be left to the State and for that reason will obey a law that he may think very silly.” (Devlin, p.31).

The ordinary man still thinks of the word crime as disgraceful or morally wrong. “But he cannot be expected to go on doing so for ever if the law jumbles morals and sanitary regulations together and teaches him to have no more respect for the Ten Commandments than for the wood-working regulations” (Devlin, p.31).

Devlin makes a distinction between criminal and quasi criminal offences and torts. There is a gradual progression from the criminal concept of “who is to be punished” to the question of torts which involves "who is to pay." Devlin believes that it is "important to establish as a convention a clearer line than that which exists at present to mark the boundary beyond which any further invasion should not go.” (Devlin, p.32-33). It is this blurred distinction between mala in se and mala prohibita which prompts arguments of convenience for abortion.

The feminist argues from convenience because she does not acknowledge abortion as an act which is mala in se. She acknowledges no responsibility to the third party, the father, and no responsibility or entitlement to the foetus; nor any responsibility to the extended family as a society.

A progression is made from the theological position of mala in se to the civil proscriptions of mala prohibita. The concept is advanced that as the theological basis is removed from the law, the “victimless crime” becomes not one of mala in se but One of mala prohibita and so can be decriminalized by changing the law.

Now it is on this question that the theological position itself founders. The Ten Commandments were altered by the Athanasian faction of the Christian church and the commandment to keep the Sabbath day was overruled by the Council of Elvira and the Council of Laodicea, which prohibited Sabbath keeping and substituted Sunday worship. This claim to change the law made by the Athanasian faction precludes any recourse to the law as an absolute, so that any Athanasian argument that any action is mala in se because of biblical proscription is open to refutation.

The consequence of theological relativism was to be a slide within the framework of the ethics of jurisprudence of offences which were biblically mala in se to merely civilly mala prohibita. This has occurred with adultery, fornication, prostitution and homosexuality because of the definitions and the view of the province of jurisprudence as advanced by the Wolfenden report. From the above definition however, such a position is not open to abortion, because the very framework of the moral and civil law would have to be rewritten.

Abortion is mala in se because of a traditional view of life accorded to the foetus. To effect the transfer to the category of mala prohibita it must be denied that a foetus has any rights including the right to life and that the traditional view is wrong. The position of special vulnerability however, which is a specific concern of the law, is extended to the young. It must therefore be argued that a foetus is not young; it is something quite separate from inside to outside the womb. This is a point of demarcation but not one of arguable division of right. Its status of special physical dependence is hardly of a lesser category than an infant therefore a denial of rights on the category of stage of development would seem to entail a reduction in the rights of all infants or those in a position of special physical dependence. This matter is a serious concern for the determinations of jurisprudence.

The specific weakness of body or mind where the foetus does not have a right to X because it does not have a concept of X must also be extended to the weak in mind or even to the inexperienced. Because a person does not have a concept of the law of torts does not preclude that person being protected by its application or a right to its protection. Nor does it follow that a lack of a concept within the criminal code reduces the responsibility of the State in taking up the case on behalf of an injured party. A murder victim does not have a concept of X or anything else but the rights of the individual are still taken up by the State. The argument that the victim possessed a past concept of X is also applicable to a mentally deficient person, damaged or aged, or somehow diminished in the quality of life. If a concept of life is necessary to sustain a right to life under the law then it must follow that the damaged and the retarded have a diminished right to existence to the point where euthanasia must be permissible. The concept of special vulnerability which forms the basis of the concern of jurisprudence cannot stand. The consequence of the elimination of this is absolute anarchy and survival of the fittest. It is common ground and advanced by Tooley that it is wrong to cause the foetus to suffer in that it is vulnerable. However, Tooley and others argue that it is permissible to kill the foetus if it is done painlessly. Modern science has shown that it is not done painlessly and the foetus is torn limb from limb in the womb and in some cases survives the saline abortions later term and is then murdered outside of the womb and cut into parts often for sale.

Genetic changes occurring to the human species of the type referred to by Tooley on page 66 which are so altered as to have the mental capacity of chickens are therefore rendered vulnerable to non human species who may kill them. It is not a question of right or wrong to kill them in a moral sense as Tooley seems to imply but rather the human species would lose the factor which makes it dominant and revert to a vulnerable species which would constitute prey for more intelligent and agile predators. The concerns of a species with morality and ethics arise out of its rational capacities, the lower the rational capacity the greater the reversion to the rule of natural law and survival of the fittest. Another species whose females or parental groups kill their young are merely self regulating or doomed for extinction.

It is precisely the power of our rational thought which confers domination and an ethical responsibility to protect not only the weak of the human species but to ensure the survival of all species, even from a purely predatory point of view. The basic moral obligation and right is that of ensuring the right to exist of each species as required by biblical law. This obligation within our species is defining specific rules concerning the destruction of our own young which is also regulated by biblical law and a theory of obligation on which it rests and the requirement to make alive within the creation for which we are responsible. These obligations would be imposed on the dominant rational beings of any system and the moral and ethical problems and regulations would likewise pertain.

From the position of special vulnerability, abortion must be mala in se and a crime to be taken up by the law.

From the question of responsibility to others the woman is not alone in this matter. There are three parties. The woman, the male or father and the foetus or third party. Until the woman conceives there are only two parties and each has an obligation to the other for the duration of the act or relationship. When conception o c cur s a third party enters into the agreement without consent or agreement and the initiating parties by their own actions create an obligation in a contractual sense to all three parties. Both of the initiating parties have an obligation to and interest in each other party. The woman by her action set aside her sole right to enjoy her body as did the man when they under took the act. The woman therefore, has, by her undertaking the sexual relationship, knowingly entered into a relationship which firstly is an undertaking to render service to the partner as his is to her, but secondly by the creation of a third party to the proceedings, enters into an undertaking to render service to the third party as well as the second party and this is well established under Tort Law. The parties are thus under criminal, quasi criminal and this tort law situation. The State (and as an extended family) has an established interest to this situation and becomes the fourth party with interest, rights and obligations no less than the other parties. Thus the structure of biblical law and the obligation to make alive and the requirements of the law and its reflection in jurisprudence cannot simply be dismissed.

Robert Goodin has stated the definition (in Protecting the Vulnerable, University of Chicago Press, 1985, p. 65) as defined under the US “Second Restatement of Torts”' (Prosser 1965, Sec.323).

“One who under takes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking; if, (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.

The suggestion that in taking the life of the foetus painlessly we do not harm it is a serious aberration in the minds of those that advance it. We harm all parties to the abortion in ways mental and physical and sociological.

An example is the doctor who is under no obligation to stop and help a victim but once he does, the professional or other party under the law of torts “is required to exercise reasonable care to terminate his services in such a manner that there is no unreasonable risk of harm ......, or to continue them until they can be so terminated.” (ibid)

The professional or person who undertakes the facility “is not at liberty to discontinue it until the patient is out of danger or until alternative provisions for care have been made” (ibid).

Goodin suggests that “the relationship between professional and client is not (and should not be) viewed as primarily a contractual or quasi-contractual one. The reason lies in the unequal bargaining power of the two parties to the putative contract” In addition to the inequalities of the professional and client catalogued by Bayles (1981, 64) quoted by Goodin (ibid); the foetus is at further disadvantage.

This relationship of the unequal bargaining power of the two parties is precisely the area of special vulnerability which is the province of jurisprudence and removes the relationship from a purely contractual or quasi contractual one to one which enjoins the State to act.

There are many influences on a woman that affect her decisions but the woman is under no constraint not to, or obligation to, engage in the sex act (with the sole exception of rape) without her consent and as such enters into a liability not only to the male partner who is open to real and potential loss, both physical and psychological but also to a third party who will be dependent upon that woman, firstly, in a total way within the womb and secondly, in an ongoing and slowly decreasing way until adulthood or until other suitable methods of support are obtained by ad option.

The woman has a responsibility to eng age in the sex act from conjugal obligation, and from that obligation, an obligation to the society to continue human life. The obligation stems from her role in society and its direction by its religious texts and her expected undertakings of and within marriage. The act is thus not one of hedonist self gratification but rather one of serious obligation, albeit a rather enjoyable one, and one not confined to the wants and desires of a single party but extended to the society.

The offspring of the felon and the prostitute, whilst seen as a perversion of the conjugal relationship, still enjoins a helpless third party which becomes the responsibility of the society. If the society wishes to decriminalize prostitution it nevertheless must maintain the responsibility to the foetus under the moral obligations of jurisprudence to protect the vulnerable. Where a society makes regulations with the production of social ill effects it must accept and bear the cost of those decisions. Where conduct is allowed which results in defective end products it must accept responsibility.

From the moment of conception, the zygote enters an actuality and a potentiality for being which does not cease nor diminish, (until death in the theistic sense or brain death in the atheistic sense).

From a purely atheist point of view, looking at the human body as merely an evolutionary mechanism it may be argued that there must be awareness of existence as a concept to warrant the sustenance of life. As before stated, to have a right to X one must have a concept of X. Such is Tooley's argument and his criteria, when related to the right to life, would permit abortion, infanticide and euthanasia differentially. He thinks that rationality is irrelevant. It is not diminished but rather the sense of rights. The premise that because an awareness of existence is not present or 1imited then the potentia1ity is diminished in the child and hence its right to protection under the normal criminal, quasi-criminal law and law of torts is erroneous. The society also has a right to the potentiality of being which overrides the desires of individuals and the conditions which will optimize the growth of the group as a healthy interdependent mechanism are established. The perverted establishment of the Nazi system and its genocide came from this idea and its misapplication.

Regardless of religious absolutism which of itself forbids foeticide the society establishes a moral law which maximizes utility in the long run and this is necessarily in conflict with the maximization of utility in the individual case.

Once a women enters into an agreement, to have sex either gratuitously or for consideration the result of which necessarily entails the possibility of conception she enters into an express responsibility to the parties of that agreement not to abandon any party until they are out of danger or in the event of conception, not until alternative provision can be made for the child's care. This is only overridden when the mother's life is endangered as dealt with previously.

The view of the mother in self defence and her desire to be rid of the foetus is a serious psychological issue and she needs assistance in that regard.

Removal of the foetus even to an artificial environment where it could be sustained until maturation would not discharge this obligation because of the emotional and psychological dependence of the foetus on its host, i.e. the mother.

Similarly, the male has an equal responsibility in this matter and that must continue. The State has similarly both a responsibility and a right in the matter and the maintenance of the nation or extended family groups warrant legislation and protection.

To argue that the individual or individuals are under no obligation not to kill the foetus because they do not, or cannot have the right to life because of a conceptual limitation is an attempt at finding a position of convenience which will allow the destruction of those at vulnerable stages of existence where their marginal utility to the state is least, or their inconvenience to the individual is greatest. As stated this is contrary to the obligations of jurisprudence. It involves a necessary descent into barbarism following hedonism, but more particularly it deals with the symptoms of a social problem of which foeticide and infanticide are but two. The changing status of the child and family has been dealt with previously. Conceptual limitations are inherent in the most significant stages of the development of the human being and these prompt legal protections and sanctions regarding education and development.

The Rights of the Vulnerable

Because one party is vulnerable in a contract or activity does not diminish its rights or value. From Prosser “the duty of one who undertakes charge of another who is helpless is as follows:-

“One who, being under no duty to do so, takes charge of another, is subject to liability to the other for any bodily harm caused to him (or her) by :

The failure of the actor to exercise reasonable care to secure the safety of the other while within the actor' s charge, or the actor's discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.

Where a victim cannot seek redress the State has the responsibility to seek such redress as would occur in any homicide. This would logically extend to the injury of the foetus by drugs or abuse.

Because of the vulnerability of the foetus due to its dependence and conceptual unawareness, and its helplessness, the society has an obligation to legislate to prevent the undue imposition upon it of a defective product which is the result of the negligent parent. The essence of the problem is that the individual attempts to avoid responsibility and accountability in resorting to abortion and the State, because of the fallacious propositions of cultural determinism taught by its schools of psychology, sociology and anthropology, is increasingly reluctant to legislate to regulate human conduct, thus compounding its own degeneration.

Coming into Existence

It may be argued that the foetus is in no worse position by abortion than by failure to be conceived. This does not follow. It is morally responsible to prevent the conception of a child under circumstances which will not maximize its welfare. It is not, however, the same thing to diminish its actuality and potentiality for being by killing it within the womb. Termination is called foeticid e until birth, infanticid e as a child, homicide as an adult , if unsanctioned; execution or euthanasia if sanctioned, and varying names according to the perpetrator of the act, i.e. patricide, matricide , etc. This crime is still however, murder, if premeditated. Accidental homicide in the case of self defence is not a premeditated act and falls outside of this category.

Just as no court would pardon a person who abandons the rescue of a drowning man, without good reason, (i. e. danger to life of the other party) and walks away, merely because the rescuee was in extremis before the rescue began, so too is the case of the foetus and that of parental responsibility. A post mortem potentiality for being within a religious context merely strengthens the position in that it implies ongoing purpose of a Divine nature for which the foeticide purposely thwarts.

When a society abrogates its responsibility to protect the vulnerable members within it , especially those who have an actual and express potentiality for being, then that society is in an advanced stage of moral decay as evidenced by history of the nations that practiced it and their decay as observed by the sages within them and explained herein. The social manifestation of its decay, the crime of foeticide or infanticide, is merely a late stage symptom. The repression of the symptom will not heal the beast; only its complete reorganization will achieve such a purpose or feat.

The Liberal View on abortion

The liberal view of abortion offered by Tooley in Abortion and Infanticide looks at the concept of rights and interests (rather than the view of rights and desires as Hursthouse would have it). The extension of the argument of destruction of potentiality as found in the foetus to other species is not of concern here.

Tooley's example of the non destruction of the brain damaged individual is an example of absurd reduction. The human body is incapable of survival in that condition without sustained and continuous intervention on the part of others. Brain damage occurs in varying degrees. Often when there is significant brain damage the individual will face a continual process of regeneration, the non damaged brain taking over the activities of the damaged areas slowly restoring sight and thought. Usually where the brain is not sufficiently damaged the brain will have enough undamaged tissue to enable unassisted respiration and will slowly regain function. After a period of assisted respiration and coma this will become visible. Where the body will survive without artificial aids then there is a potentiality to regain function of varying degrees. Where the body will not survive without unassisted respiration over a prolonged period then that would indicate that the body is so damaged that it is shutting d own or dying. There are therefore, two distinct stages involved. One is of feeding and assisting the helpless over a continued period and the second of unnecessarily prolonging death. Aside from the simple obligation to feed the helpless the question that arises is NOT is it morally right to kill such a reduced person? But rather, is it morally defensible to interfere with the natural body shutdown and consequent death?

The answer is obviously no, it is not defensible and the individual should be allowed to die. This argument, however, has been reversed to be extended to refute a contrary pro position. There is a distinct difference between passive euthanasia and active euthanasia. Those with responsibility for the person are able to determine its future. No system should actively kill its people except to allow them to die in dignity.

Tooley, quite rightly, points out, in his analysis of infanticide at p.317 in accounting for the differences between societies that practiced infanticide, and those, such as our own that emphatically reject it, that: “no satisfactory understanding of those differences is possible unless they are seen as involving a difference in moral outlook.

Some writers, in contrast, seem to believe that the difference is merely with regard to the prevalence of infanticide in other societies. The crux is a difference in how people feel about infanticide.”

He refers to Westermarck in saying that the result of anthropological evidence indicates an absence of any deep sense of regret. It became a "perfectly natural way of behaving." He sees it not as stemming from parental love being weaker in societies that practiced infanticide," (ibid) but rather that it stemmed from the different status often assigned to infants. “They were not regarded as 'fully human' or ... as persons" (ibid p.318).

This is amply borne out by the detailed historical analysis. Such deterioration occurred when the status of the individual was weakened on theological grounds or where the State became the moral authority in view of pantheistic variables.

It is precisely from this position that Tooley's argument is unacceptable because it necessarily allows for the reduction in the absolute value of life and results in an inequality before the law in terms of rights placing rights and morality as diminishing variables. Human rights and animal rights differ substantially. Biblically the animals are conferred either for food or regulation of the planet under human activity.

The basic paradigm of evolutionary anthropology (which of itself has become a religious dogma) is that these differing cultures practiced and evolved from differing permissible conditions.

The biblical narrative states the reverse, that these people transgressed the absolute nature of the law and were scattered. They became degenerate because they broke the totality of the law and came under the consequence of disobedience found in Deuteronomy chapter 28 which is absolute. (Deut. 28:53 has since been reduced.)

Evolutionary anthropology, together with the other branches of Positivism such as Sociology emanating from the formal restructuring of Science under the development of the religion of Humanism, is no less a religion than Zoroastrianism or Hinduism and its application of moral relativism has seen it unable to deal with the moral problems encountered historically.

Tooley rightly points out (at p.171) the uncomfortable position of the Roman Catholic on the claims that man possesses an immortal soul. The Catholic Church’s position on foeticide involves theological assumptions which are nonbiblical. Namely: those developed from Chaldean theology assuming the existence of an individual immortal soul and the attendant heaven and hell doctrines as outlined earlier and the relativism consequent to the alteration of biblical law.

It has eliminated biblical law from the church's position, placing it in an untenable position. The position is even worse for the Protestant in that they have inherited the non-biblical position which rests solely on the authority of the Papal Bulls, yet have denied this authority but not reverted to the biblical position. Tooley's development of the argument of the soul doctrine at pages 327-328 is to the point of prima facie error if someone is deprived of something, namely the right to life, with its wrongness dependent upon the seriousness of the deprivation. This is an ov ersimplification.

Firstly, there are various parties involved and secondly, a moral wrong may be consequent also to the perpetrator of the act.

The argument of Tooley that it does not seem to be the case that the killing of innocent human beings, considered in itself is always wrong is dealt with theologically on a single ground, that of protecting the mother.

In his summary at Theses l, Tooley states, “one cannot, in general, decide the issue of the permissibility of abortion without tackling the question of the moral status of the foetus. There may be cases in which a woman's rights have sufficient weight to render abortion morally permissible even if a human foetus has a serious right to life. This is the case, presumably, if the woman's life is threatened, and may also be the case when the pregnancy results from rape. But it does not appear to b e so in most cases.'' (p. 303).

We have examined the relationship of the biblical law which requires the destruction of a foetus when it threatens the mother from the application of the sixth commandment, however Tooley's position regarding rape is unconvincing and is contrary to the concept of the non commission of atrocity in the rectification of breach of the law through atrocity. Tooley is correct in that unless the moral status of the foetus is undermined then abortion is only permissible in protection of the life of the mother.

Another argument advanced in defence of abortion is that:

to argue against the killing of a being on the grounds that it belongs to a species, is impermissible as a basic moral theory. Tooley advances as his Second Thesis that:

2) The fact that a foetus developing inside a human female belongs to the biological species, homo sapiens, is not in itself morally significant, for, in so far as properties are described in purely physical terms, they cannot enter into right making and wrong making characteristics.

Two principles that are not speciesist, and if sound, would rule out an extreme liberal position on abortion are:

1. It is seriously wrong to kill an entity that is either a person or a potential person;

2. Any organism, regardless of whether it is a person, has a right to life if it belongs to a species such that normal adult members of that species are persons.

Tooley dismises both these arguments. Thus the foetus can fall into both categories. From the function argument also a quasi-speciesist position can be developed which does not override these principles. This argument relates to the inequality of function.

Such an inequality of function was expressed in the instance of the seven pairs of clean animals being taken into the ark and only one pair of unclean (Gen. 7:2). Clearly the distinguishing element was of utilization and function together with potentiality. This was interrelated with the purpose, function and potentiality of the humans responsible for saving the animals themselves but by theological sanction.

The contention that there must be a basic underlying principle which deals with the morality of killing is one of interpretation. Some species kill each other; most do not harm females with young. Some on varying levels of the scale devour their mates.

The case of the praying mantis which has such a structure that the male can still undertake copulation whilst being eaten by the female makes a nonsense of the claims for basic moral principles of killing which are trans species. The morality of killing lies in its necessity for survival. It is this principle which has underpinned the morals and ethics of jurisprudence. Abortion runs contrary to that principle except where the survival of the mother is concerned within the human species.

Having said that, the argument is then advanced that survival for the human species is not dependent upon eating meat. Scientifically this is demonstrably false within related areas of meat consumption and brain capacity but that is outside this paper. The regulation of meat consumptions is examined in the paper The Foodlaws (No. 015) and Vegetarianism and the Bible (No. 183). The responsibility for the survival of the lesser species is incumbent on the dominant rational groups on the same grounds of protecting the vulnerable within jurisprudence limited only by the requirements to harvest food.

The difference rests on the function of a species or group and that a foetus is a member of that group in a primary stage of its development is no less significant than it would be if it were suggested to kill university professors or students because they represented an inconvenient, expensive and sometimes highly visible and uncomfortable stage of the social chain. The argument is not merely its potentiality but the actuality of its position in the sequence. The establishment of basic principles for the regulation of morals and jurisprudence is essential to the structure.

There are non potential properties that, independently of a thing's value make it seriously wrong to destroy something and it is this aspect which traverses other issues such as environmental ethics. Often these relate to the deleterious effect on the individual and also for the interrelationship of things. The argument that abortion on demand for convenience seriously undermines the notion of moral responsibility and social cohesion is difficult to refute.

Now Tooley postulates that: “The non potential property that makes an individual a person - that is, that makes the destruction of something intrinsically wrong, and seriously so, and that does so independently of the individual’s value, is the property of being an enduring subject of non-momentary interests. It is not the possession of, or the exercise of, any of the following: the capacity for rational thought; the capacity for free action; the capacity for self- consciousness.” p.303). Thus Tooley and others might argue that the life may have value but that value does not confer a right to life. That is contrary to biblical law and the obligation to make alive and the responsibility to the society.

The latter are merely likely conditions of the necessary property. But these likely conditions are those which enable the group or species to become dominant and from that, be concerned with moral responsibility.

Tooley argues for his Theses No. 4 that, “The destruction of potential persons is not intrinsically wrong” and from this the non potential property at Theses No. 3 is developed which is the property of "being an enduring subject of non-momentary interests.”

In view of the preceding argument Tooley' s Theses No. 5 “That it is not intrinsically wrong to refrain from producing additional persons, or additional persons who will have certain properties" is not arguable and indeed the irrational religious position developed contrary to this is a major cause of abortion (from the research listed).

Tooley's Theses No. 6 that ''there does not appear to be any property, unrelated to the property that makes something a person, that makes the destruction of something intrinsically wrong, and that does so independently of the entity's value” demonstrates the two non speciesist principles outlined previously. Tooley attempts to limit the general extension of the properties contrary to the principle of the morality and ethics of jurisprudence from Theses 7.

Tooley argues in his Theses No. 7 that “it may be the case that the property that makes something a person is one that admits of degrees, and that the wrongness of destroying something is a matter of the degree to which it possesses the property in question.”(p. 304).

To argue from a religiously neutral account would still reduce to the relative value of the human at varying stages of existence and therefore involve a necessary dislocation of Criminal and Tort Law. This undermines the concept of justice for the weak. The variability of morality, following on from relativism and partiality in jurisprudence, leads to an exercise of morality based on power and thus the right to life is transferred to those elements in the community exercising power. Where those elements exercising power do so without regard to the cohesive long term welfare of the group within a stable family environment and place unitary considerations above these considerations then ultimately the decision making and cohesion of the group disintegrates. The society as stable extended family elements maintain ongoing potentiality. The exercise of power by force precedes a descent into barbarism. Totalitarian control can arrest this in the short term, however, the environmental and socio-economic consequence is disaster.

The two propositions addressed as non speciesist which rule out an extreme liberal position on abortion were:

1. It is seriously wrong to kill an entity that is either a person or a potential person, and

2. any organism, regardless of whether it is a person, has a right to life if it belongs to a species such that normal adult members of that species are persons.

Now these pro positions run counter to Tooley's Theses No. 4 because they make it necessarily wrong to destroy potential persons or organisms which will become persons.

The second point renders irrelevant the question of "At what point in the development of a human organism does it become a person.”

Tooley's second question (p. 304) is "If the property that makes something a person admits of degree, and is morally significant to whatever degree it is present; at what point in the development of a human organism does it first become wrong - even if only minimally so, to destroy it?"

To examine the premises of Tooley's property some examination of the language is required.

Enduring: lasting or continuing, from endure – to harden or strengthen; intransitively to persist or hold out, and transitively sustain; and also to undergo , bear , support or as a property of not giving way. The concept of suffering without resistance, to submit and tolerate and to permit.

Subject: Philosophically this is the substance in which accidents or attributes inhere and could also be a thing having real independent existence. Its prime meaning was as one who is under the domination of a monarch or reigning prince (or spiritual lord), owing allegiance to a government or ruling power; subject to its laws and enjoying its protection. Bound by allegiance the subject was an inferior, dependent, subordinate; owing obedience to another and at law it was understood as "A thing over which a right is exercised." (Oxford Universal Dictionary, 3rd Ed. Rev 1964, p p. 2057-2058),

Non-Momentary: as being not short lived but also not recurring at every moment,

Interests: is the relation of being objectively concerned in something, by having a right or title to; a claim upon or a share in or a legal concern in something , including property or to spiritual privileges or a claim in anything or of any pecuniary interest. This interest extends to the relation of being concerned or affected in respect of advantage or detriment especially an advantageous relation or of mattering. It also can carry the capacity to be damaged.

By its process of development a foetus will be enduring and by definition it must be a thing over which a right is exercised, even if that involves termination prematurely by the host or third party. Some philosophers might argue that the foetus need not be a subject of consciousness or a person. That must be rejected on all the grounds herein. The host and foetus are necessarily subordinate and dependent to varying degree and all parties concerned including the foetus within normal English usage are capable of possessing non-momentary interests.

The question of a subject as the substance in which accidents or attributes inhere is found to be consequential. The attribute of being a rational functioning adult is consequent upon an uninterrupted sequence of dependent development proceeding from the production of a genetic code consequent on fusion of the gametes. The attributes of the individual are contained within the genetic information of the zygote and achievement or maximization of potentiality for being is consequent on the correct development of a dependent subject. At every stage of its being it is in fact a subject over which rights are exercised.

Degree is admissible only consequent to moral relativism which necessarily entails the partiality of moral and ethical rights consequent to a variable legal and causal structure. The argument that a human is more sophisticated than a chimp who is more sophisticated than a cat is not to be confused with moral relativism. From this argument Nazi Germany was perfectly correct in the exercise of its prerogatives by power.

Abortion and Social Decision Making

Abortion and infanticide amongst the Greeks led to an experiment amongst the Greeks on Lesbos. The feminist elimination of the male became an aberration which, according to legend, Hercules solved by slaughtering the Lesbians. The Chinese proverb would have it that "what has happened once will surely happen again." The division of a society on sexist lines as opposed to the division of functions within that society on sexist lines is an aberration not tolerated in human history and one which ultimately involves violence.

In the future foeticide from test tube production for spare parts or even under contract by individuals will become a significant issue. The allocation of such resource by monetary factors will occur. The ultimate expression of this will occur as cloning, complicating even more the moral debate.

Once it becomes permissible to destroy a potential being, that is, a fertilized ovum, (whether or not it may be split into identical subdivisions) on grounds other than the physical survival of the mother, then the long term welfare of that society is imperilled and ultimately that society will forfeit its right to exist.

The historical and current observations mentioned above concerning the motivations for abortion indicate that the social disintegration and self interest which precipitates the demand for abortion limits social cohesion requiring absolute coercion. The consequent limitations to utility and welfare are significant. Such conditions are short lived.

As Sumner says,

“A system that permits each individual agent to aim at maximizing utility in each individual case will not itself maximize utility in the long run.” (Sumner p.193).

As he points out, this provides utilitarians with a prima facie reason for abiding by social rules when doing so may cost utility in the particular case “for they therefore contribute to the strengthening of an efficient system” (ibid).

He rightly points out that “a utility maximizing social morality will contain no absolute duties and no absolute rights” (ibid).

Sumner sees an indirect utilitarian theory of right as promising to avoid the rigidity of absolutism and the exploitation of the individual by direct appeal to utility. It would also avoid the indeterminacy of intuitionism. Thus the essential protection of the integrity of individuals is assured. "Rights can be taken seriously without being treated as morally basic” (ibid).

The indeterminacy of intuitionism has been evident in the field of jurisprudence for some time as outlined previously in the statement concerning the jurisprudence following on moral and ethical concerns of jurisprudence following on from the Wolfenden Report. Intuitionism however has only occurred because of the introduction of relativism and is not problematic in absolutism. The rigidity of absolutism is only a problem if the moral structures are defective or misinterpreted. Direct appeals to utility do exploit the individual and so any utilitarian theory of right must be indirect or the individual suffers. Rights have no absolute meaning in direct or indirect utilitarianism but in direct utilitarianism they have little meaning at all.

The elimination of the rights allocated to the foetus under Utilitarianism and Hedonism are not limitable to the foetus. There is no logical reason why relativism should not destroy systematically any other category of the human species by the same moral principles. That this is so is acknowledged by Sumner in his attempt at avoiding the exploitation of the individual attendant upon utilitarianism without giving up relativism and utilitarian theory conseq uentially.

For Sumner utilitarianism is the foundation for a moderate view of abortion. A direct utilitarian theory of the good conjoined with an indirect theory of the right can serve as the deep structure for moral rules that allocate particular rights and duties.

The exact mechanism Sumner proposes for the conjunction of a direct utilitarian theory of the good with an indirect theory of the right as the structure for moral rules that allocate particular rights and duties is a little unclear.

A moderate view of abortion based on utilitarianism can only be achieved by producing a distinction of primary and secondary moral status to objects and in this way resolve the status of a foetus to that of a secondary object with secondary rights. This line is developed also by Tooley. In this way objection to any extension of criminal or torts law to a foetus, or indeed, any legally defensible right may be sustained.

But this is absurd as the utilitarian protection of a social entity can only be obtained by extending equal status to the foetus as an essential element of the society as potentiality for being. The moral and ethical concerns of jurisprudence have been examined and the concerns of protecting the vulnerable within the law ensuring a moral and actual equality before the law does not depend on any antecedent theory of right for its operation. David Humes' attack on the fiction of the mutual agreement and voluntary association and the pointing out of the function of violence in the change and creation and breakdown of kingdoms and governments (included in Jeremy Waldron's Nonsense upon Stilts, Methuan, London 1987, p.19 (from Hume's Of the Original Contract) was rightly seen by Waldron not to limit the respect accorded to human rights in virtue of the human nature.

“The fact that power has been based on violence all along and not contract may damage the theory of political obligation, but it does nothing to refute the claim that power should now be exercised in a morally responsible way. There was no other way in which the social contract could survive as an important political idea” (ibid p.20).

The assertion of the rights of the female over her own body are in essence an assertion of egoism and individualism where individualism is as an extension of a modern liberal theory of rights which takes justification-to-the-individual to its absolute extent over the other modes of social legitimacy such as justification-to-a-community or justification-to-a-people throughout-its-history (as Waldron identifies these at page 183).

For Waldron:

"The issues that this raises are complicated ones. Certainly a model of justification in politics is inadequate if it focuses only on the individual interests of those immediately involved"(ibid).

But "a theory of rights cannot possibly be a comprehensive moral theory." By its very nature a theory of rights is an individualistic theory. Rights purport to secure goods for the individual: that is an elementary consequence of their logical form.

A right is always somebody's right, and we never attempt to secure things as a matter of right unless there is some individual or individuals whose rights are in question (ibid p.185).

Waldron goes on to state that:

“The most plausible recent analysis of the rights idiom presents a right as the assertion of a justificatory relation between the interests of an individual and the imposition of social duties.”

The link between interest and duty is individualistic. A resort to Individualism and Egoism in a theory of right is a recipe for social disaster (contrary to Gauthier’s Morals by Agreement). Waldron rightly isolates Hegel’s attack on Kant's contractarian account of marriage.

“Marriage, he said, is not a contract between individual self-subsistent units; and as a moral institution it will be wrecked if men and women come to regard it like that. Even though it is based on an agreement, it is, Hegel said, precisely a contract to transcend the standpoint of contract that is to transcend the stand point of an individual making claims about his or her rights” (ibid. p. 188).

In ideal family situations relations are governed in large part by spontaneous affection as Sandel points out in Liberalism and the Limits of Justice as quoted by Waldron. “Individual rights and joint decision procedures are seldom involved, not because injustice is rampant but because their appeal is pre-empted by a spirit of generosity in which I am rarely inclined to claim my fair share” (ibid).

The existence of rights is merely to generalize the security of the individual in the event of a deterioration in relationships of agreement.

From Waldron's proposition that “A human right is a moral position in relation to a particularly important type of individual interest,” (ibid p.179) some idea can be obtained of the moral position of the liberal view of abortion.

The individual interest here given pre-eminence is that of the female over the alleged non-interest of the foetus and the other par ties.

The destruction of the extended family and the consequent alteration of the family relationships and the relative position of the child in the structure as outlined previously have led to an increasing preoccupation with individual rights and more particularly the perversion of the male/female relationship. The increasingly transient relationships have led to the necessity to assert the pre-eminence of the rights and interests of a female over her foetus and the urge to destroy that foetus.

Rights theory has been attacked on the grounds of egoism by Bentham and Burke who commented that the object of the Declaration of Rights seemed to be to reinforce the selfish and dissocial passions whereas, they argued, the prime need of any society was their restraint and discipline. (pp. 48 and 105 as quoted by Waldron at p.190) and Marx asserted that the rights of man were ‘nothing but the rights of …. egoistic man, man separated from other men and the community …. The right of selfishness’”(ibid p. 190).

Marx's solutions seemed to produce an aberration which destroyed the rights generally and on Utilitarian Theories of the Good of the State destroyed many basic human relationships and productivity, reserving to the State the right to destroy on grounds of Utilitarian relativism.

Bentham and Burke seem to have understood the dissocial aspect of unrestrained conduct. Nowhere has the charge of egoism as an abuse of the concept of rights theory been more aptly placed than on the issue of abortion.

It is in the degeneration of the position of the female in the extended family and the absence of the conditions of security and well being and the freedom arising from loving concern which appears to be continually responsible for the position.

Where relativism is applied to morality and rights theory a conflict occurs in the pursuit of the good.

Utilitarian relativism has shown that people will increasingly disregard group welfare in decisions where choices involve maximizing individual welfare, (except in extreme cases in war). The choices of the individual have to be within a supportive and controlling group to preserve the long term survival of the group.

It appears that up to 97% of abortions in the United States are for reasons of convenience. Only 3% are for reasons of protecting the life of the mother, rape or incest. Approximately 55 million foetuses will be aborted worldwide in 1989 or about nine induced abortions for every twenty live births. That figure is increasing yearly at exponential rates.

A major factor in abortion amongst Chinese and Indians and Asians in Britain is on the grounds of sex selection. By ultrasound techniques the sex of the foetus can be determined and within limited family planning the boy achieves a perceived relative value and the female foetuses are aborted. The long term effects of this on a balanced society are obvious and cannot be tolerated. They are importing this behaviour into the western countries to which they emigrate.

The concepts of brain activity on the part of a human being as determinant of life would now rule that a foetus has separate brain wave activity from seven weeks and therefore life. (Ronald S Toth, Plain Truth Magazine, Oct. 1989, p. 18-20). From its genetic structure it is an individual entity prior to this date and is dependent upon the female for development and support. Biblical definition demands that it is by the production of blood in the zygote that it has life. It is dependent upon the society for protection and regulation of conduct related to it as every other individual is regulated and just as entitled to receive due consideration and protection of its interests. The foetus is not responsible for a fragmented and self interested society.

The result of individual maximization of wants within an increasingly fragmenting social and family structure is:

an increasingly ageing populace, motivated by self interest, less able to take care of itself and therefore dependent upon immigration for services and increasingly dependent upon financial usury without labour input due to increasingly physical dependence. Such a society cannot survive and does not deserve to survive. “Strangers have devoured his strength and he knoweth it not. Yea, grey hairs are here and there upon him, yet he knoweth not.” (Hosea 7:9).

It is thus that the killing of potentiality of being in the weak and vulnerable cannot be tolerated in any society. It is thus that the greatest sages in the world's history have universally condemned the practice.

For the precondition 'If it is impermissible to kill persons' it must be accepted in view of the historical analysis given that it is impermissible. However, from the forgoing analysis of the foetus and the moral and ethical concerns of jurisprudence it is equally impermissible to kill potential persons.

It is the responsibility of the family to protect the life of the nation. God will raise up our salvation: Messiah will return to save those that eagerly await him. Until that time the Church is tested and tried and refined in the fires of persecution. Any child who threatens the life of a parent forfeits his or her own life as seen in the above texts. This is also examined in the paper Law and the Sixth Commandment (No. 259).

The National Responsibilities under the Sixth Commandment

The responsibility to provide life

With the concept of the legal control of life, we also have the concept to provide life or to make alive.

Deuteronomy 32:39 See now that I, even I, am he, and there is no god with me: I kill, and I make alive; I wound, and I heal: neither is there any that can deliver out of my hand. (KJV)

God has no god with Him; rather He alone is God and gives life and takes life. His hand takes hold on judgment. Thus the taking of life in the creation from the fall is rectified by the giving of life in the resurrection (see the papers Doctrine of Original Sin Part 1 The Garden of Eden (No. 246); Doctrine of Original Sin Part 2 The Generations of Adam (No. 248) and The Resurrection if the Dead (No. 143)). God is thus subject to His own laws and makes restitution for any actions He has made, or ordered, in the process of the creation.

1Samuel 2:6 The LORD killeth, and maketh alive: he bringeth down to the grave, and bringeth up. (KJV) (cf. Isa. 43:13).

Yahovah-elohim breathed the breath of life into Adam’s nostrils (Gen. 2:7). So also through the same elohim we receive the breath of the Holy Spirit (cf. John 20:22-23).

God sentences people to death for sin and breach of the law. Hence, we see that breach of the sixth commandment carries the death penalty, which is the sanction in every single instance of the commandments of God. The ultimate penalty for breach of the law is death, from the first commandment to the tenth commandment (Ex. 22:22-24; Deut. 24:14-17). The commandments are based on restitution and restoration, but the penalty for repeated violation and refusal to obey is death in every instance.

The nation has an obligation to keep alive the native born, the strangers and the aliens in its lands.

Leviticus 19:9-10 And when ye reap the harvest of your land, thou shalt not wholly reap the corners of thy field, neither shalt thou gather the gleanings of thy harvest. ¹⁰And thou shalt not glean thy vineyard, neither shalt thou gather every grape of thy vineyard; thou shalt leave them for the poor and stranger: I am the LORD your God. (KJV)

The law provides for the protection of disabled persons from assault and from being improperly taken advantage of.

Leviticus 19:14 Thou shalt not curse the deaf, nor put a stumbling block before the blind, but shalt fear thy God: I am the LORD. (KJV)

(Sixth Commandment The Law of God, Vol. 1, p. 133).

The Provisions of the Law of God on abortion and murder

Abortion

Abortion is a breach of the sixth commandment except on one ground. That ground is where another law is breached: when the child threatens the life of the parent, then the child is put to death.

This is a reflection of the fifth commandment, and the sixth follows from the fifth and interprets it. Thus the child cannot be allowed to kill the parent; this would be logically consistent with the Laws of God. The first five commandments relate to the responsibilities of the individual to God and the family in the society, as creator and parents. The last five commandments relate to the interaction with that society. No child can damage or cause the death of its parent with impunity.

Exodus 21:15 And he that smiteth his father, or his mother, shall be surely put to death. (KJV)

Abortion is thus permitted within the Law of God to save the life of the mother.

Damages in miscarriage

The punishment for miscarriage induced by violence is according to claims in damages, as directed to and by a court of the land.

Exodus 21:22-25 If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. ²³And if any mischief follow, then thou shalt give life for life, ²⁴Eye for eye, tooth for tooth, hand for hand, foot for foot, ²⁵Burning for burning, wound for wound, stripe for stripe. (KJV)

Refusal to come before the court, and the creation of mischief that follows it, is to be determined according to punitive damage. Thus both parties are to be bound by the court and its decisions, and any mischief caused by either party in retribution is punished in retribution according to the damages inflicted. This is in accordance with the law that states: “you shall not revile the elohim or the ruler of the people.”

Murder

Unauthorised taking of life is murder. The law specifies the specific instances and circumstances where a person may be put to death. All unauthorised taking of life is murder; thus the sixth commandment, “You shall not kill,” is properly understood as meaning, “You shall not murder.”

The taking of life is not only sanctioned, it is mandatory under the law in certain instances, as shown above. Moreover, the types of crimes require certain levels of the application of the law. A breach of the sixth commandment requires the death penalty, whereas only repeated and wilful breaches of some other commandments incur the death penalty; however, they do all attract the death penalty in the final instance (cf. Num. 15:32-36). (cf. ibid, p. 146).

PO Box 369, WODEN ACT 2606, AUSTRALIA