The Law, Theology and Abortion

by John M. Frame

[Originally published in The Christian Lawyer / Vol. IV, No. 3 / Winter 1972, 24-27.]

The question of abortion is one which tends to frustrate the usual types of theological argumen­tation. Surely it is difficult to answer from Scrip­ture in any straightforward way. Scripture does, of course, unequivocally condemn murder. But is abortion murder? And is it murder under all circumstances? Part of our frustration stems from the fact that it is difficult, perhaps im­possible to prove from Scripture that the unborn child is a human being with the same right to life as any other human being. It is also, as I see it, impossible to prove from Scripture that he is not a human being. But now where does that leave us?

All Christians must develop some convictions on this matter. We must either support or attack the current drive for liberalized abortion laws. (“Neutrality” on this issue, in the current political climate, virtually amounts to support.) Further, with the number of abortions growing each year, we had better each ask what attitude we will take when and if someone close to us considers undergoing such an operation. But how can we decide?

We must often make decisions in cases where we do not have absolute certainty about all the relevant factors. This fact, however, does not im­ply that we should or may make such decisions arbitrarily; nor does it even imply that we must be uncertain concerning what is right. In this case, even though it is not possible to demon­strate the personhood of the unborn child, it is possible to demonstrate some propositions about probabilities, burden of proof, and the assumptions which Christians must make in ap­proaching the problem. Here, I believe, theologians have much to learn from types of argument found in legal contexts.

In this paper, I shall maintain that Scripture requires us to assume that the unborn child is a human being from the point of conception. The unborn child should be treated as a human being when questions about his life or death arise. Here is the argument:

1. There is no Scriptural proof that the un­born child is anything less than a human being from the point of conception. Exodus 21:22-25 is the only passage even alleged to furnish such proof, but it does not do that job on any reasonable exegesis. On the exegesis most favorable to that claim1 the life of the unborn child is given less value than the life of his mother. However, even this exegesis fails to show that the unborn child isless than a human being—something it must show to prove the contention in question. Furthermore, the most natural interpretation of this passage2 is even less favorable than the one just mentioned to the contention that the fetus is less than a human being.

2. There is no principle of Scripture, science or philosophy authorizing us to pinpoint a time between conception and birth at which a human being emerges from something less. Even the point of “viability,” the point of time at which a fetus becomes able to survive outside the womb, cannot be shown to have such a significance. Doubtless this point of time marks a major transition in the fetus’ life; but how can this transition be demonstrated to be a transition from subhuman to human status? How can it be proved that viability confers human rights upon a piece of tissue? How does the medical concept “viability” entail the ethical concept: “right of life”? I do not believe any plausible answers to these questions have been given. Therefore I cannot recognize viability or a fortiori any other point of fetal development as marking the begin­ning of full human rights.

3. The Scriptures do teach that the unborn child is not merely part of his mother’s body. He has a special, independent significance. God has an intimate, personal concern for such unborn human life:

For thou didst form my inward parts:
Thou didst cover me in my mother’s womb.
I will give thanks unto thee;
For I am fearfully and wonderfully made:
Wonderful are thy works;
And that my soul knoweth right well.
My frame was not hidden from thee
When I was made in secret,
And curiously wrought in the lowest parts of
the earth.
Thine eyes did see mine unformed substance; And in thy book they were all written. Even the days that were ordained for me, When as yet there was none of them.3


Before I formed thee in the belly I knew thee And before thou earnest forth out of the womb
I sanctified thee; I have appointed thee a prophet unto the nations.4

David sees even his personal sinful nature as ex­tending back to the time of his conception; “Behold, I was brought forth in iniquity; and in sin did my mother conceive me.”5 These passages do not, in my view, prove that the un­born child is an independent human being, but they do establish such a continuity between pre­natal and post-natal life that we cannot but regard the child as having his own significance, a significance going beyond the significance of any part of his mother’s body. How do we define that significance? Well, it is either independent human personhood, or else it is some mysterious status between “mother’s body” and in­dependent human personhood about which we can only speculate. At least it must be said that the significance accorded to the fetus in Scrip­ture makes his human personhood more probable than if these passages had taught otherwise. This probability is increased, moreover, by the fact that Scripture never draws any distinction between fetal existence and human personhood. Not only is it impossible to prove from Scripture that the fetus is less than a person (above No. 1), but Scripture never even says anything that would render such a con­clusion possible or probable! Scripture often speaks of unborn children in language used of persons, applying personal pronouns to them, etc.6 Even if this usage is figurative, it is significant that Scripture never speaks of them in language incompatible with their personhood, or language suggesting any less-than-fully-human status for them. Thus among the various alternatives, the one rendered most probable by the Scriptural evidence is that the unborn child is a human person.

4. Scientific considerations confirm this assessment of the probabilities. Geneticists tell, us that a child from the point of conception possesses a full complement of chromosomes, distinct from those of his mother:

When the sperm and egg nuclei unite, all of the characteristics, such as color of the eyes, hair, skin, that make a unique personality, are laid down determinatively.7

Because the child is thus physically distinct from his mother, her body treats him as a piece of foreign tissue and finally “rejects” this tissue at the moment of birth. This “rejection” would oc­cur much earlier than it usually does occur, were it not for the fact that the mother’s rejection processes are suppressed during pregnancy. This consideration, again, does not prove that the fetus is a human person, but it does confirm what we have already maintained (a) that the un­born child is not a mere “part of his mother’s body, (b) that if he is not an independent human person, he must have some mysterious status about which we can only speculate, and (c) that the most probable status of the unborn child suggested by the evidence is that of independent human personhood.

5. Scripture not only condemns premeditated murder, but also manslaughter—destruction of human life caused by negligence.8 In other words, Scripture requires that we exercise the most scrupulous carefulness in preserving human life.9 Even the possibility of wrongful killing is to be avoided. But considerations 1-4 above clearly indicate that such a possibility, even a probability, exists when we contemplate abortion. That probability is sufficient to deter­mine the Christian’s decision. In view of the Scriptural teaching concerning the sanctity of life, the unborn child must be given the benefit of the doubt. Even though we cannot prove that the unborn child is a person from conception, we can prove something important about the Christian’s responsibility to that unborn child. The Christian must treat the unborn child as a human being from conception onward in situations where fetal life and death are at stake. N.B.: this conclusion about the Christian’s responsibility (in contrast with our conclusions about the nature of the fetus) is a necessary con­clusion, not a merely probable one. It is the only policy that a Christian may adopt to the glory of God.

6. Further confirming this conclusion is an in­teresting recent development in legal thinking. Thomas F. Lambert, Jr., Editor-in-Chief of the Journal of American Trial Lawyers Assn. reports that in recent years there has been a trend in the courts toward allowing recovery for prenatal in­jury or death, a trend which has overturned a great many older decisions.10 This trend is not based on the view that the fetus is in some metaphysical sense a human person. Rather, it is based on the argument that the fetus should be treated as a person, an argument similar to that which we have employed. Lambert says,

The term “legal personality” should be defined in relation to the purpose at hand, in terms of con­sequences as much as essences. The fetus or child in the womb should be treated as a person/or pur­poses of tort law whenever that is necessary to prevent injustice.11

Such a procedure is often necessary to prevent injustice, Lambert argues, because prenatal in­jury does do harm not only to the mother, but also to the child. It harms that person who is being formed in the womb. And it can produce injury and loss extending into the post-natal life of that person. Prenatal injury harms a person, even if that person does not achieve his “personhood” until after the injury!12 Prenatal death, Lambert continues, also harms a per­son—even on the assumption that the fetus is not a person when killed. For prenatal death prevents a person from living (or existing!) who otherwise would have lived (existed). Thus the estate of a stillborn child has the right to recover for the injury causing that fetal death.13 The main point here correlates nicely with our previous argumentation: injustice results (in contexts dealing with injury and death) when the unborn child is not treated as a person, eventhough it is impossible to resolve the question of his metaphysical status. For the continuity bet­ween fetal life and post-natal life is such that harm to the former is harm to the latter, and thus all harm, whether to the unborn or to the born, is harm to a person.

To summarize: Steps 1 and 2 demonstrate the possibility that the unborn child is a human per­son; 3 and 4 establish the probability that he is such; and 5 and 6 establish the necessity of a certain practical policy for Christians in the light of that probability and in the light of the demon­strated continuity between fetal and post-natal life.

Does this argument imply that abortion is never justified? Not necessarily. There are cir­cumstances where human persons must be killed, and where such killing does not break the Sixth Commandment. Just warfare and capital punishment are the two examples most fre­quently adduced. But are there circumstances justifying the killing of unborn human beings? This is a difficult question.14 The apparent need to kill an unborn child to save the life of the mother is perhaps the most plausible set of cir­cumstances for a justified abortion. But is it in fact justifiable to kill one human being to save the life of another? This question is one which I cannot now resolve. At any rate, our decision even in such a case must be based on the as­sumption that the child is indeed a human being.

Now even if our argument is faulty, the Christian should beware of supporting those movements currently urging the liberalization of abortion laws. Even if the unborn child is, in the final analysis, “only” a part of his mother’s body, the Christian cannot support the view that this fact gives the mother absolute control over the child, to treat it according to her whim. We cannot treat even our own bodies just as we like; for our bodies are God’s, not our own.15 The argument that a woman has the right to do anything she pleases with her own body breathes a spirit of rebellion against God.

Finally, let me quote the conclusion of a com­mittee report which I helped prepare, submitted for study to my denomination:

We conclude, therefore, that the Christian should regard the unborn child as a human person made in the image of God. Such a regard for the unborn child will involve rejection of abortion, except possibly to save the life of the mother. On the basis of this concern, the Christian should use his in­fluence to promote legislation which will protect unborn human life.


Adoption of these general principles, however, does not excuse the Christian from a rigorous self-examination as to the motive of his heart in making decisions in these matters, nor does the adoption of these principles automatically justify any act allegedly performed in accord with them.


Further, in counseling with those facing difficult decisions in these matters, the Christian must not use his general principles as a way to avoid wrestling with a particular case. The agonies of those contemplating abortion must be shared, entered into, understood, if truly loving counsel from the Word of God is to be given.16



1 Lange,  J.P.,  Exodus (Grand  Rapids,  Zondervan, 1960), 90

2 Keil, C F. and Delitzsch, F., Biblical Commentary on the Old Testament (Grand Rapids, Eerdmans, 1959), II, 134-136.

3 Psalm 139:13-16

4 Jer. 1:5

5 Psalm 51:5

6 CF. above-quoted passages.

7 Ratner, H., M.D., Report (April, 1966).

8 Num. 35:9-34. Note especially verses 26-27

9 Note the exposition of the Sixth Commandment in the Westminster Shorter Catechism, Q. 68, and in the Westminster Larger Catechism, Q. 135.

10 Lambert, T.F., Jr., “Legal Rights of the Fetus,” The Christian Lawyer, (Fall, 1968); reprinted in Spitzer, W.O. and Saylor, C.L. ed., Birth Control and the Christian (Wheaton, 111., Tyndale House 1969), 369-414, with some revision. I shall refer to the latter source.

11 Ibid., 378

12 Ibid., 376-386

13 Ibid., 386-391

14 More difficult, I think, than Mr. Lambert makes it out to be in the article cited above. For although he advocates treating unborn children as persons “for purposes of tort law” in certain cases, he also ad­vocates a considerable liberalization in abortion laws (Ibid., 400-414). But are these two positions con­sistent? Now of course there is no a priori reason why an entity (e.g. a corporation) should not be treated as a person for some purposes and as a non-person for others. The job of the jurist is not to develop a philosophical metaphysics but to maximize justice in concrete situations. But in the case before us: if the killing of a fetus is a form of harm which deprives a person of existence and which therefore entitles that person’s estate to compensation, why should not criminal law as well as tort law recognize such killing as the destruction of a person? Such recognition would not necessitate that all abortion, or any abor­tion, be made a capital offence (see Ibid., 412). One could, in the absence of other considerations, even argue that at least some abortion is justifiable homicide. But in weighing the difficult questions of morality and legality, one could not dissolve the dif­ficulty by claiming that the fetus is less than a person. Since Mr. Lambert appears to make use of this premise, it would appear that he has oversimplified the issue considerably and overlooked the im­plications of his own argument from tort law.

15 1 Cor. 6:12-20 (cf7:4f).

16 Report of the Committee to Study the Matter of Abortion,” delivered to the 38th General Assembly of the Orthodox Presbyterian Church (May 24-28, 1971, Wilmington, Del.) The majority report, quoted here, was signed by Rev. John M. Frame, Rev. Robert L. Malarkey, and Joseph Memmelaar, M.D. There is also a minority report signed by the Rev. Paul Woolley.
*Mr. Frame is Assistant Professor Systematic Theology at Westmister Theological Seminary, Chestnut Hill, Pa. He holds a B.A. degree from Princeton University and an M.A. from Yale University.


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