The Ethics of Abortion

For purposes of our discussion we will be defining ‘abortion’ as follows:

Abortion = deliberate removal (or deliberate action to cause the expulsion) of a fetus from the womb of a human female, at the request of or through the agency of the mother, so as in fact to result in the death of the fetus.

That is to say, we want to know about the morality of uncoerced, human abortion—so for our purposes abortions are voluntary, deliberate removal of a human fetus.

Mary Warren, “On the Moral and Legal Status of Abortion”, 1973

Warren defends an extremely permissive view on abortion, according to which abortion is morally permissible at any stage of the pregnancy and under any circumstances.

Warren considers the following anti-abortion argument:

1) It is wrong to kill innocent human beings.

2) Fetuses are innocent human beings.

______________________________________

3) Therefore, it is wrong to kill fetuses.

She claims that the plausibility of the premises rest on an equivocation on the term ‘human being’:

Human in the genetic sense = being a member of the biological species homo sapien.

This includes not only functioning children and adults, but also includes fetuses (even very early fetuses) and living human bodies without functioning brains (e.g. those in irreversible comas).

Human in the moral sense = being a full-fledged member of the moral community.

Warren: The moral community is the set of beings with full moral rights, and consists of all and only persons.

If ‘human being’ has the same sense in both premises then one of them is question-begging. Either the argument assumes that it is wrong to kill something merely because it is homo sapien, or the argument assumes that a fetus is a member of the moral community. Both of these claims are contentious and would require further argument.

Warren next considers whether genetic humanity is sufficient for moral humanity. She asks “What characteristics entitle an entity to be considered a person [in the moral sense]?”

Warren’s list of characteristics (not an argument!):

1. Consciousness (of objects and events external and/or internal to the being), and in particular the capacity to feel pain;

2. Reasoning (the developed capacity to solve new and relatively complex problems);

3. Self-motivated activity (activity which is relatively independent of genetic or direct external control).

4. The capacity to communicate, messages of with an indefinite number of possible contents on indefinitely many possible topics.

5. The presence of self-concepts and self-awareness.

Warren claims that:

· any being who does not possess most of 1-5 is not a human being in the moral sense.

· the more like a person a being is, the stronger is the case for regarding it as having a right to life, and the stronger its right to life is.

· there is no stage of fetal development at which a fetus resembles a person enough to have a significant right to life.

· a fetus’s potential for being a person does not provide a basis for the claim that it has a significant right to life. Even if a potential person has some right to life, that right could not outweigh the right of a woman to obtain an abortion, since “the rights of any actual person invariably outweigh those of any potential person”

The spaceman analogy: A space explorer is captured by aliens who are going to make a thousand clones of him unless he escapes. Does he have an obligation to stay? No, says Warren, even if the cloning is done quickly and does not harm him. Not even if the clones have already started to grow and will die if he escapes.

Objections to Warren

If killing fetuses is permissible because they are not full-fledged members of the moral community, then, by the same standard, killing newborns would be permissible as well. Moreover, killing any non-human animal would also be permissible. But this is not the case.

Warren’s Reply: “The deliberate killing of viable newborns is virtually never justified...because neonates are so very close to being persons that to kill them requires a very strong moral justification—as does the killing of dolphins, whales, chimpanzees, and other highly personlike creatures. It is certainly wrong to kill such beings just for the sake of convenience, or financial profit, or sport.”

Is this an adequate reply? Arguably not. Take the example of a premature birth. A six-month “premie” is certainly a “viable newborn”, given modern technology. But it is no closer to being a person than a six-month fetus that happened to stay in the womb. So, to be consistent, Warren must either say that killing the premature infant is permissible, or that aborting the six-month fetus is not.

Since Warren brings up non-human animals, let’s consider what Peter Singer would say about this. Recall that argues against making personhood a necessary condition for moral consideration (that would be “speciesist”). Instead, he proposes that having interests is what matters, and sentience (the capacity to feel pain) is both necessary and sufficient for having interests.

At what stage of development is a fetus capable of experiencing pain? Somewhere between 5 and 6 months, it is now believed.

Don Marquis, “Why Abortion is Immoral” (1989)

Marquis’ analysis of the debate:

“The pro-choicer wants to find a moral principle concerning the wrongness of killing which tends to be narrow in scope in order that fetuses will not fall under it.” The price is that they tend to be too narrow, so that infants, young children, the temporarily unconscious or the severely retarded end up in the same category as fetuses.”

An Example of an overly narrow principle: “It is always prima facie wrong to kill only rational agents”.

--This seems to be very close to the standard that Warren adopts!

Note on the term “prima facie”: This is latin for “at first glance” or “ on the face of it”. If I have a prima facie reason to believe something, then I should presume it is true unless I have other evidence to the contrary that overrides the prima facie reason. If a type of action is prima facie wrong, what this means is that the type of action is wrong in most cases, with exceptions in special circumstances that would justify the action.

On the other hand, the anti-abortionist wants to find a moral principle so broad that even fetuses at an early stage will fall under it. These principles are often too broad. For example: “It is always prima facie wrong to kill something that is genetically human”, which seems to entail that it is wrong to “end the existence of a living human cancer cell culture.”

If the anti-abortionist tries to fix the problem by adopting the principle that “It is always prima facie wrong to kill a human being” then they simply beg the question against the pro-choicer when they get to the next premise, “Fetuses are human beings”. (The pro-choicer will deny that fetuses are human beings in the moral sense).

Likewise, it is question-begging for the pro-choicer to adopt the principle “It is always prima facie wrong to kill only human beings" (why assume that fetuses aren’t human beings?)

There seems to be no non-question-begging way in which either side can establish a definition of moral personhood that suits their interests.

The solution: An analysis of the wrongness of killing. “If we merely believe, but do not understand, why killing adult human beings such as ourselves is wrong, how could we conceivably show that abortion is either immoral or permissible?”

What primarily makes killing wrong is neither its effect on the murderer nor its effect on the victim’s friends and relatives, but its effect on the victim.

The effect: “The loss of one’s life deprives one of all the experiences, activities, projects, and enjoyments that would otherwise have constituted one’s future”.

“...what makes killing any adult human being prima facie seriously wrong is the loss of his or her future.”

Killing is wrong because it results in the loss of a future of value (like ours).

Points in favor of the analysis (according to Marquis):

· It explains why killing is regarded as one of the worst of crimes: it deprives the victim of more than perhaps any other crime.

· People who are dying believe it is bad because it is a loss of a future of value. It makes sense that killing is fundamentally wrong for the same reason that death is bad.

· Implies that it would be wrong to kill non-humans that have “a future like ours” (a future of value), such as certain animals or intelligent extra-terrestrials.

· Unlike “sanctity of human life” theories, does not entail that active euthanasia is always wrong. Whether it is wrong depends on the expected value of the future of the patient.

· Unlike personhood theories (e.g. Warren’s), it straightforwardly entails that killing children and infants is wrong, and for the same reason it is wrong to kill anyone else.

Marquis’ position in a nutshell:

“The future of a standard fetus includes a set of experiences, projects, activities, and such which are identical with the futures of adult human beings and are identical with the futures of young children...it follows that abortion is prima facie seriously wrong.”

Rival theories as to why killing is wrong

(1) Desire account: What makes killing wrong is that it prevents us from fulfilling our desires. [This might be attractive to the pro-choicer because fetuses don’t have desires].

Can support abortion only if having desires is a necessary condition for having the right not to be killed. But it isn’t a necessary condition: the depressed, the temporarily unconscious provide counterexamples.

Worse, it puts the cart before the horse: we desire life because we value it, not the other way around.

(2) Discontinuation account: What makes killing wrong is the discontinuation of a life of value. [Might be attractive to the pro-abortionist on the assumption that a fetus does not yet have a life of value].

When considering whether it is wrong to kill someone in a case of euthanasia, the person’s past (even immediate past) is irrelevant: only the future matters. “This being the case, it seems clear that whether one has immediate past experiences or not does no work in the explanation of what makes killing wrong.”

Objection: Killing a person may be wrong because a person has a future of value. But it doesn’t follow that killing a merely potential person, such as a fetus, is wrong.

Marquis: “This argument does not rely on the invalid inference that, since it is wrong to kill persons, it is wrong to kill potential persons also. The category that is morally central to this analysis is the category of having a valuable future like ours; it is not the category of personhood.”

A standard fetus has a valuable future like ours: whether it is a “person” or a “potential person” is beside the point.

Discussion:

Is there a way that Marquis can make exceptions in the “hard cases”, such as pregnancy due to rape or incest, or where the life of the mother is in jeopardy?

Is there a problem in determining which things can be said to have a future? E.g., do zygotes have a future?

Thought experiment

(from Michael Tooley’s “Abortion and Infanticide”)

Suppose there is a drug that can be injected into kittens to cause them to grow into cat people.

Abbreviations

PCP = potential cat person

PHSP = potential homo sapiens person

CP = cat person

HSP = homo sapiens person

Tooley’s argument

1. It is morally okay not to inject the kittens.

2. There is no morally relevant distinction between actions and omissions (The Moral Symmetry Principle, a.k.a. doctrine of negative responsibility)

3. Therefore, it is okay to neutralize the development of a PCP once you have injected the kitten (e.g. to stop the process by killing the kitten).

4. CPs have the same rights as HSPs.

5. PCPs have the same rights as PHSPs.

6. Therefore, it is okay to neutralize the development of a PHSP—abortion is morally permissible.

How might Marquis respond to Tooley’s argument? Notice that PCPs are not merely potential persons, they are also things with futures of value.

Judith Jarvis Thomson, “A Defense of Abortion” (1971)

Thomson assumes, just for the sake of argument, that the fetus is a person from conception. She then tries to show that, even given that the fetus has a right to life, it does not follow that abortion is morally impermissible.

The anti-abortion argument:

(1) All fetuses are persons.

(2) Every person has a right to life.

(3) Therefore, every fetus has a right to life.

(4) Therefore, abortion is wrong.

For the sake of argument, Thomson assumes that (1) and (2) are true. She then argues that (4) does not follow from (3). From the fact that something has “a right to life” it does not follow that it is wrong to kill it. This much is easy to see, since most of us agree that it is not wrong to kill in self-defense.

This suggests that (4) needs to be qualified “except to save the life of the mother”.

But Thomson argues that the gap between (3) and (4) is much wider than this. Along these lines, one suggestion is that a mother has a right to decide what happens in and to her body, and that this might outweigh the fetuses right to life. (Notice that this does not assume that the fetus is literally part of the mother’s body).

But the anti-abortionist can simply respond that the right to life is the strongest and most fundamental right there is, and so outweighs the mother’s right to decide what happens to her body.

But Thomson does not argue that the mother’s right over her own body outweighs the fetuses right to life. Instead, she argues that the right to life has been misunderstood. Once it is understood correctly, it will be seen that (4) does not follow from (3).

Thomson proposes a thought experiment:

"You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinist's circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, 'Look, we're sorry the Society of Music Lovers did this to you—we would never have permitted it if we had known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, it’s only for nine months. By then he will have recovered from his ailment, and can safely be unplugged from you.' Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still? What if the director of the hospital says. 'Tough luck. I agree. but now you've got to stay in bed, with the violinist plugged into you, for the rest of your life. Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person's right to life outweighs your right to decide what happens in and to your body. So you cannot ever be unplugged from him.' I imagine you would regard this as outrageous."

Thomson concludes that (i) it is not true that the violinist has a right to your body, and so, by analogy (ii) it is not true that a fetus that is a product of rape has a right to your body, but (iii) there is no easy way for the anti-abortion argument to be amended to account for this. Saying that those who are products of rape have no right to life or have less of one “has a rather unpleasant sound” (meaning it is discriminatory in a bad way), not to mention it is ad hoc.

The solution, according to Thomson, is not that certain fetuses have less of a right to life or none at all; the solution is that having a right to life simply does not entail having the right to someone else’s body. This means that the argument is invalid; the conclusion (4) does not follow from the premises.

So what does the right to life consist in? One suggestion:

(a) the right to be given at least the bare minimum one needs for continued life

Objection: Sometimes the bare minimum is something you have no right to. (Violinist example).

(b) the right not to be killed

Objection: Sometimes you can be killed by being deprived of something you have no right to. (Also, there is self-defense)

She concludes, “the right to life consists not in the right not to be killed, but rather in the right not to be killed unjustly.” True, but not very informative.

We never have the right to someone else’s body unless that right has been extended to us. (Henry Fonda example)

Thomson’s Thesis: In cases where the right to use the mother’s body has not been extended to the fetus, abortion does not violate the fetuses right to life.

In what cases does the fetus have the right to use the mother’s body?

Rape? Clearly Not.

Sex using birth control? No...

" ... suppose it were like this: people-seeds drift about in the air like pollen, and if you open your windows, one may drift in and take root in your carpets or upholstery. You don't want children, so you fix up your windows with fine mesh screens, the very best you can buy. As can happen, however, and on very, very rare occasions does happen, one of the screens is defective, and a seed drifts in and takes root. Does the person-plant who now develops have a right to the use of your house? Surely not--despite the fact that you voluntarily opened your windows, you knowingly kept carpets and upholstered furniture, and you knew that screens were sometimes defective."

Implicit Argument:

1) The fetus has the right to use my body only if it is reasonable to hold me responsible for my pregnancy.

2) If I tried to prevent pregnancy through the use of contraception, then it is not reasonable to hold me responsible for my pregnancy.

___________________________________________________

3) Therefore, if I tried to prevent pregnancy through the use of contraception, then the fetus does not have the right to use my body.

Ordinary consensual sex without contraception?

If the room is stuffy, and I therefore open a window to air it, and the burglar climbs in, it would be absurd to say, 'Ah, now he can stay, she's given him the right to the use of her house, for she is partially responsible for his presence there, having voluntarily done what enabled him to get in, in full knowledge that there are such things as burglars, and that burglars burgle.

Objection: A fetus is innocent, not a burglar trying to do you harm. But, Thomson would say, this makes no difference: I have the right to eject an innocent person from my home, if that person falls through my window. At this point it may be objected: getting pregnant due to voluntary, unprotected sex is not like having a person stumble into your home or fall through your window. It is more like having someone over because you invited them into your home…

Thomson recognizes that not all moral obligations stem from rights. For example, if a child finds a chocolate bar, then his sister has no right to it, but decency requires that he share it with her anyway. Likewise, in some cases, it would be wrong to abort because it would be “indecent”.

When is it indecent? Thomson doesn’t say, just gives an obvious example: A woman wants to abort at seven months so that she can go to Europe.

But, argues Thomson, making decency a legal requirement in effect requires us to be “Good Samaritans”. Thomson notes that “no one in any country in the world is legally required” to be a Good Samaritan, except in the case of pregnancy. In fact, no one is even required to be a Minimally Decent Samaritan.

Thomson: Abortion is permissible in many cases, but this does not mean we have the right to secure the death of the fetus. "The desire for the child’s death is not one which anybody may gratify, should it turn out to be possible to detach the child alive." In Thomson’s view, the death of the fetus is a necessary side-effect of abortion, but is not a legitimate goal of abortion. Were it possible to remove a fetus without killing it, then it must not be killed.

Discussion:

Pro-choice lobbies are concerned about laws and policies that may implicitly recognize the fetus as a person (e.g. criminalizing the harming of a fetus by an attacker, or extending federal funds to poor women for prenatal care on the grounds that the funding is for “low-income children”.) Would such laws and policies be cause for concern for Thomson? What about a personhood theory?

Do we share Thomson’s intuition about the case of the violinist?

Is Thomson’s view about rights compatible with Marquis’ theory of the wrongness of killing?

When is it “indecent” for a woman to have an abortion?

Abortion and Implicit Consent

Let’s assume, for the sake of argument, that a fetus must have the consent of the mother in order to have the right to use her body. Under what conditions does the fetus have the consent of the mother?

Explicit Consent: The mother-to-be declares, “I, ___________, hereby give this fetus the right to use my body for the purpose of growing into a viable infant until I give birth to it. I am fully aware of what this will involve.” In general, giving explicit consent to something means making a public, un-coerced and informed statement in which one recognizes certain rights and responsibilities that would not otherwise exist. This is what we do when we sign a contract. This is not what we do when we decide to have a child. If women give consent to fetuses, it is not explicit consent.

Implicit Consent: If you voluntarily enter a restaurant or a bar, then you are subject to certain “rules of the house”. You might be required to dress in a certain way, refrain from shouting, etc. If you fail to follow these rules, you may be expelled. The fact that you are there of your own free will is interpreted as an agreement on your part that you will obey the house rules. In other words, you have implicitly given your consent to be subject to those rules. Similarly, if you enroll in a class, then you are subject to certain requirements necessary for getting a passing grade (usually detailed in the syllabus). At no point do you say, “I hereby agree to the terms of this syllabus.” You have already given your implicit consent by staying enrolled in the course.

Depending on what nation, state and county you live in, you will be subject to different laws. Citizens do not give explicit consent to obey the laws, but it is arguable that they give implicit consent. For example, suppose Smith lives in a county where pornography is illegal. He could easily move to a different county, but he chooses not to. If Smith is caught displaying pornography, he could be fined. If he complained to the judge, “I never agreed to obey your pornography law”, the judge could retort, “No one forced you to live here, did they?”

The above examples of implicit consent all have two things in common: (i) the consenting person makes a voluntary choice to engage in a certain type of activity, (ii) the activity in question is generally understood to entail certain responsibilities. Because the person involved, like most other people, understands that certain responsibilities come with the activity, there is no need for the individual to explicitly agree to take on the responsibilities—they take them on automatically.

What has this got to do with abortion?

In a typical case of unwanted pregnancy, the pregnant woman

(A) Engaged in an activity (sexual intercourse) that is known to cause pregnancy, and in fact is the usual way in which people get pregnant.

(B) The now pregnant woman knew this at the time.

(C) Either (i) she was not using birth control, and she knew this, or (ii) She was using birth control, but she knew that birth control sometimes fails.

(D) The woman voluntarily chose to have sex.

For Discussion

In a case where all of these conditions are met, has the woman given implicit consent to give birth to a child?

Notice the following: In the uncontroversial examples of implicit consent, it was generally understood that the activity entailed certain responsibilities. But in the case of unwanted pregnancy, there is widespread disagreement about whether unprotected voluntary sex entails being responsible for the life of a fetus. On the other hand, It could be argued that there being a “general understanding” is not necessary for implicit consent…