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Personhood and Dignity: The Cox Case

December 19, 2023

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By now you have likely heard of the case of Kate Cox, whose lawsuit against the State of Texas has made national headlines. Cox’s unborn daughter received a fetal diagnosis of Trisomy 18, also known as Edwards’ Syndrome. Cox sued the State of Texas for legal permission to obtain an abortion.  

Eventually diagnosed with Trisomy 18 through amniocentesis, sonograms had already revealed that her baby girl had several anatomical markers of children with this genetic condition, including clubbed feet, irregular heart development, and protrusion in the abdomen. Meanwhile, Kate was at increased risk for various ailments mothers of trisomy babies experience, including increased risk of gestational diabetes and hypertension.

Cox herself articulated her reasons for wanting an abortion:

“It is not a matter of if I will have to say goodbye, but when. I do not want to continue the pain and suffering that has plagued this pregnancy. I do not want to put my body through the risks of continuing this pregnancy. I do not want to continue until my baby dies in my belly or I have to deliver a stillborn baby or one where life will be measured in hours or days. . . . I do not want my baby to arrive in this world only to watch her suffer a heart attack or suffocation. I desperately want the chance to try for another baby and access the medical care now that gives me the best chance at another baby.”

A lower court in Texas ruled in Cox’s favor, only to be overturned by the Supreme Court of Texas, which held that Cox’s doctor’s “good faith belief” did not meet the standard under Texas law that Cox’s doctor must express her “reasonable medical judgment” that Cox’s pregnancy was “life-threatening” or posed “a serious risk of substantial impairment of a major bodily function.” (In such cases, a pro-life physician presumably could, intending to save the life of the mother, induce labor of an unborn child with the undesired but foreseeable side-effect that the baby would likely not survive.)

Cox has since gone out of state to obtain an abortion, presumably a dilation and evacuation procedure.  

I personally can empathize with the pain that Kate Cox and her husband Justin are going through, for my wife and I are also parents of a Trisomy 18 baby.

It was New Year’s Eve 2020, when the doctors diagnosed my unborn son with Trisomy 18. My baby boy had several anatomical markers for Trisomy 18: clubbed feet, omphalocele, heart defect, intrauterine growth restriction, and more. Bosco Joseph Paul Cooper was stillborn into my wife’s arms on April 20, 2021.  

I thus understand well the pain that the Coxes are going through because I’ve been there. So does my wife, whose powerful testimony can be read here. But I cannot agree with their framing of the issue. Nor can I agree that they have a moral or legal right to contract the killing of their child.

The personhood and therefore dignity of the baby does not hinge upon its physiological dependency.

The framing of the issue seems initially one to which any conscientious person would be sympathetic. Kate identifies real goods that she seeks to obtain by means of an abortion: bodily comfort and health, future fertility and children, and freedom from emotional suffering.  

But suppose a hypothetical in which a mother sued Texas for permission to abort her four-year-old child, who had been sick for about five months and was diagnosed with an extremely life-limiting and very often fatal genetic condition. And suppose that caring for the child had been, and would continue to be, acutely physically and emotionally taxing in a way that posed some risk to future fertility. Most of us would agree that it would be morally insane eugenicism for her to contract the killing of her child in that instance.  

So what is different between the cases? Not that the four-year-old and the unborn child are not fully human. That is simply scientifically and philosophically false. The question is one of personhood. The principal difference of the real case from my hypothetical is that Kate’s child is physiologically dependent upon her in a particular way that all unborn children at twenty weeks gestation are.  

But the personhood and therefore dignity of the baby does not hinge upon its physiological dependency. As Christopher Kaczor has argued, this is evident when we consider the case of conjoined twins Mary and Jodie. They were conjoined at the abdomen, and Jodie (the “stronger” twin) had developed functioning lungs and heart while Mary (the “weaker” twin) had not, making Mary physiologically dependent upon Jodie to oxygenate her blood. Surgery was eventually performed to separate Mary and Jodie in a way that led to Mary’s death. Yet, it was indisputable that Mary was a distinct person and that the surgery led to the death of a person, even though she was physiologically dependent upon her sister.  

Or again, consider a case that philosopher Peter Singer discusses, that of Trisha Marshall who was seventeen weeks pregnant when she was shot in the head after attempting a home invasion. She was declared “brain dead,” but her heart was still beating, and a respirator supported her in the ICU until the baby was born. The hospital and attending physicians correctly treated baby Darious as a distinct person deserving of dignity and respect, despite his physiological dependency and the “death” of his mother (supposing a brain-death definition of death).

In short, physiological dependency makes no difference as to the moral status of any unborn child, including Kate’s.  

The idea that physiological dependency equates to nonpersonhood is a performativist vision of personhood. On this view, personhood depends upon a subject’s immediate capacity to perform some action. Some performativists draw the line at “feeling pain”; others at “viability”; still others at some higher level of cognitive functioning (suggesting, in eugenicist and neo-pagan fashion, that humans with cognitive-limiting genetic conditions can never be persons).

But all these lines are arbitrary because one is a person just in virtue of being a particular kind of being, one with a rational nature. At the moment of conception, all humans are such beings, radically distinct from other things in nature because of the kind of thing that they are (which is to say, they are not things at all).

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Again, let us return to our hypothetical severely disabled four-year-old case, and let’s say he were to be contract killed by means of large metal arms that would grab and pull apart his limbs, and a vacuum tube that would suction his organs down the drain. What sane person would consider that a compassionate fate?

But dilation and evacuation (D&E) abortions do something like that on a smaller scale in the womb. The abortionist reaches into the womb through the vaginal canal with a long metal tool, clamps the fetal body parts, and pulls them apart, removing them piece by piece, including the baby’s head, which must be crushed to be removed.  

Doubtless neither Kate nor Justin wanted their baby to suffer a heart attack or suffocation. Neither did my wife nor I. But it simply does not follow that violently dismembering a baby of five-month gestational age with Trisomy 18 in the womb is the compassionate alternative to bringing him to term, even when a form of suffering arising from his genetic condition is foreseeable.

I do not cast any aspersion upon the Coxes nor do I call for any criminal penalties. In fact, absent some further information we don’t have, my assumption is that the abortion industry is using Kate’s tragic situation to advance their own political agenda, and accordingly have not explained to them the gruesome reality of a D&E abortion, instead making a vague Orwellian promise of “medical care.”

The real villains here are the depraved elites who have for generations pushed evil in the guise of good as the solution to the problem of evil.  

When Thomas Aquinas considered which arguments to raise against the existence of God, he only thought two were worth mentioning. (This was not because he was hasty or shy about raising objections to himself. In the Summa Theologica, he raised over 10,000!). Of interest to us is the argument from evil. An omnibenevolent God does not will evil. And an omnipotent God could prevent it. But evil exists. Therefore, the argument goes, God does not exist. Aquinas answers thus: God, in his infinite goodness, wisdom, and power, is so good, wise, and powerful that he can bring good even out of evil.  

A number of upshots are apparent. One is that only a being of infinite goodness has the capacity to do this, in the mystery of his eternal providence. It follows that finite beings cannot bring good out of evil. And therefore, they ought never to will evil for the sake of some good (Romans 3:8).

Proabortion logic, without fail, proposes that human beings can rightfully will evil that good should come about. It is essentially a practically godless logic because it rejects the moral order that God established and humble reliance upon his assistance in the face of affliction.

As St. Augustine taught, God allows us to be afflicted for two reasons: our punishment and/or our perfection. Whether those afflictions ultimately become the occasion of our condemnation and damnation or our salvation and glorification depends on if we respond to them as he asks us to: by adhering to his law by means of the grace he gives us to fulfill it.