Is abortion a pseudo problem?
1986
Contents
Introduction
Formulating the problem of abortion
The right to life and reasons for abortion
The concept of a morally relevant difference
The middle position
The extreme conservative position
The extreme liberal position
The relevance of time and possibility
Leglislative implications
Notes
Introduction
The problem of abortion has proven to be particularly intractable. While the same positions have been argued for with great vigour, ingenuity and subtlety, the question is still no closer to resolution. I argue that this is exactly what we should expect, for the problem of abortion is a problem without a solution. I do not mean to contend for the mild view that we have not yet discovered the solution; I mean, rather, the stronger view that there is no solution to be found. If this is so, the problem of abortion turns out to be a pseudo problem, since all genuine problems are at least theoretical capable of being solved.
To this end, I first argue, in sections 2 – 3, that whether abortions are morally permissable turns crucially on whether the fetus has a right to life. In sections 4 – 7, I take up the possible views one may hold on this matter, and argue that the only point of disagreement between the several theories concerns the relative temporal proximity to or degree of probability of actualizing some selected potential. In section 8, I argue that there is, in principle, no non-arbitrary way of resolving this disagreement, and hence that the moral status of abortion must remain indeterminate. Finally, in section 9, I consider the stance that the law should adopt in light of this finding.
Formulating the problem of abortion
The central issue in the problem of abortion is frequently cast in terms of when, if at all, the fetus1 becomes a human being. But this is not a happy way of forumulating the problem, for being such an organism has moral implications for abortion only if there is a connection between being a human being and having a right to life, and that is not something we can assume. If by "human being" is meant "member of the species homo sapiens", it is not clear that being such is necessary or sufficient for having a right to life. We cannot say it is necessary, for we cannot properly exclude extraterrestrials (should they exist) or the higher nonhuman animals such as chimpanzees and dolphins from having a right to life in this way. Nor can we confidently say it is not uncontroversially true that all members of the species homo sapiens have a right to life. Since the rights of children differ from teh rights of adults, it is not implausible to suggest that even if fetuses are (very small) human beings, their rights will be somewhat different from the rights of both children and adults. And why, one may ask, should they be supposed to include a right to life? This is not to say that fetuses do not or could not have a right to life equal to that had by any innocent adult member of a species; it is only to say that we cannot properly infer that right from membership in the human species.
The term "human being", however, is ambiguous: it can be alternatively understood to mean "person", where this refers to an organism which has rationality and self-consciousness. But this understanding will not enable us to properly cast the problem of abortion in terms of whether the fetus is a human being either, for while being a person is a sufficient condition for having a right to life, it is not uncontroversially a necessary condition. It is not clear that potential persons do not have a right to life, and formulating the problem in this way begs the question against that important view.
For these reasons, I think it is best to start by asking directly whether the fetus has a right to life. I now want to explore what one is committed to by the asserting or denying that the fetus has such a right.
The right to life and reasons for abortion
To say that an olrganism has a right to life implies two things:
- It is prima facie wrong to kill that organism, i.e. wrong to kill it in absence of some countervailing reason and
- It is wrong to kill it for its own sake.
If we say that the fetus has a right to life equal or superior2 to that of any full-fledged human being, it will be difficult to argue that abortions can be justified in many circumstances. For since the fetus is surely innocent, if it does have such a right, we can kill it only in only those very few and special circumstances in which we can kill an innocent human being. We cannot kill it for the sake of convenience (whether this be of the order of not wanting to delay a trip to Europe or not wanting to have another family member to care for), or even if its continued existence will cause the woman substantial distress or endanger her health.3 At most, abortion will be justified only when the woman's life is in jeopardy, and even that is problematical. If one accepts the principle that while it is not always wrong to let an innocent human being die, it is always wrong to kill such a being, then, on the supposition that hte fetus has a right to life equal or superior to such a being, one is committed to saying that we cannot kill the fetus to save the life of the mother. If the fetus will live and the mother die if nothing is done, we must let the mother die, and if both the fetus and the mother will die if nothing is done, we must let both die.
If we reject that principle, as I think we should, there does not seem any moral obstacle to killing one of the parties involved in the latter case, for noone's lot is thereby made any worse. But it is not clear that it should be the fetus that should be killed. Indeed if the fetus has a right to life superior to that of the mother, it should generally not be. If the fetus has a right to life equal to that of the mother, we can generally favour the mother, for her death will likely adversely affect the lives of others in a way in which that of the fetus will not. But if this is not so in any particular case, fairness would seem to dictate randomizing the decision as to who is to die. The moral legitimacy of killing the fetus is even less clear in those cases where the fetus will live but the mother will die if nothing is done. For to kill the fetus in such a case we would have to subscribe to the principle that we can take the life of an innocent human being where the mere continuing existence of that organism (as opposed to any action on its part, malevolent or otherwise) is incompatible with our own. And that is obviously not true.
On the other hand, if we merely say that the fetus has a right to life inferior to that of any full-fledged human being, we can adopt a more liberal policy on abortion. How liberal will depend on how inferior the right to life is deemed to be: if it is regarded as only mildly inferior, abortion will still only be permissable in a few circumstances, whereas if it's regarded as dramatically diminished, abortions may be permissible in virtually all. Thus before an inferior right theory will yield to any helpful guidance on the problem of abortion, its proponent must nonarbitrarily specify the strength of that right in such a way that we will know which reasons for abortion it will cancel, and which it will not. Whether it is possibile to do this is a matter I will return to in section 8.
Finally, if we say that the fetus has no right to life, there is a strong presumption in favour of abortion on demand. For a woman certainly has a right to control her body, and if the fetus has no right to life, her right would seem to carry the day. This seem sto be unassailable with respect to early term abortions; I also think it is true for late term ones, as well, but that matter is more complex, and I will return to it in section 9.
It thus emerges, if the above is a right, that hte morality of abortion depends wlargely or wholly on whether the fetus has a right to life, and if so, of what strength. I now turn to this question.
The concept of a morally relevant difference
Deciding whether and when a fetus has a right to life is inextricably bound up with a search for some morally relevant difference. What conditions must be satisfied in order for us to regard x as a necessary, sufficient or necessary and sufficient condition for ascribing a right to an organism? There are, I think, two. First, subscribing to x must not entail any unacceptable consequences. Now certainly there will be disagreements over whether something constitutes an unacceptable consequence. For example, a conservative will regard the consequence that a fetus has no right to life as unacceptable; a liberal will simply regard the consequence that it does; and so on. While this increases the difficulty in performing a reductio ad absurdum of the moral relevance of x, it does not make it impossible, for there are a sufficient number of consequences no one wants to embrace.
But satisfying this condition is not enough. To avoid the charge of arbitrariness, a second must be satisfied: there must be some connection between x and the right in question. Sometimes this connection can be supplied by telling a casual story. For example, on can hold up age as a morally relevant determinant of the right to handle firearms in an appropriate way. At other times, however, it is not possible to connect the right with the difference causally. For exmaple, we ascribe a prima facie right not to suffer to any organism which has a capacity to suffer, and here the link is not causal, but rather consists in the fact that the organisms dislike pain. But, causal or non-causal, some connection must be made out if the difference is not to be arbitrary.
I now want to apply this analysis of a morally relevant difference to the problem of ascribing a right to life to the fetus. Everyone must agree that a full-fledged conscious human being has a right to life. The question is: When and in what way does the organism gain that right?
One may say that the right to life emerges at conception, or at some stage after conception but before birth, or only at some time after birth. Whichever position one holds, one can say that a right to life, equal or superior to that of a full-fledged human being, suddenly comes into being at that chosen time, or that it gradually begins to shade into existence at that time, starting as a weak right to life and getting stronger. Proponents of each position may also hold that there is a threshold stage, i.e., a period during which the rights status of hte fetus is indeterminate, immediately preceeding the emergence of the right to life. I shall call the position according to which a fetus has a right to life sufficient to cancel some reason for abortion (however weak) from conception onwards the extreme conservative position; I shall call the position according to which a fetus does not have a right to life sufficent to cancel any reason for abortion at any stage of its development the extreme liberal position; and I shall call the position according to which a fetus does not have a right to life capable of cancelling any reason for abortion up to a certain stage of development, but does have a right sufficient to cancel some reason for abortion after that stage the middle position. These are the only realistic positions on abortion4, and I shall argue that none of them can draw its necessary discriminations in a way that simultaneously satisfied both conditions of a morally relevant difference stated earlier. If so, the problem of abortion turns out to be a problem that does not have a solution: any position we adopt will saddle us with either repugnant consequences or moral arbitrariness. I shall begin by considering the middle position.
The middle position
Any proposed cutoff point may isolate a certain property as morally relevant for two reasons: the claim may be either that it is morally significant in itself, or that the possession of it, while not morally significant in itself, gives the organism a potential for some other property which is in itself morally significant. To illustrate this difference, suppose one were to cite the possession of a functioning brain as a morally relevant difference in human fetal development. On both views the fetus would have a right to live once it had a funcitioning brain as a morally relevant difference in human fetal development. On both views the fetus would have a right to life once it had a functioning brain, but the reason why would differ. On the first view, the fetus would have it just because it has such an origin; so even if that organ did not give it potentiality for anything else, that would make no difference. On the second, the fetus would not have it just because it has such an organ, but rather because having such an organ gives the fetus a potential for something else (say, rational thought of a certain complexity).
Neither rationale, however, will allow us to find some problem free midway position. If we cite some property as morally relevant in itself, we will be forced to make waht most regard as odd judgments about non-human organisms. It is generally acknowledge that mere difference of species could no more justify giving one organism preferential treatment than could mere difference of skin colour or sex. Thus, one hwo ascribes a right to life to the fetus on the basis of some characteristc must be prepared to ascribe an analgous right to life to any nonhuman organism possessing such a property. And since the human fetus is, potentially apart, a fairly rudimentary type of organism right up to the time of birth—it does not possess any candidates for morally relevant properties that non-human organisms even quite low on the evolutionary chain lack—singling out some prperty as in itself sufficent to bestwo a right to life on the organism will force us to radically change our moral attitudes towards non-human organisms.
Thus, insofar as we confine our attention to properties of the fetus alleged to be morally significant in themselves, the attempt to find a morally relevant cutoff point will entail counter intuitive consequences. But, one may reasonably suggest, we should not so confine our attention, for to do so ignores one crucial thing that fetuses typically possess that non-human organisms do not: the potential for a particular sort of complex development. Accordingly, the suggestion may run, the appropriate sort of properties to look for as being morally relevant are those that are valued not in themselves but for the sake of their potential. We must now see if this appeal to potential will help on to adopt the middle position.
To say that an organism, A, has a potential to develop some property, P, is to also say that the organism does not yet have that property; on cannot have a potential for something that one already has. Thus, to ascribe potentials to organisms is to ascribe a certain capacity for acquiring a certain property. Now there are two ways in which we can ascribe such a capacity:
- We can say that A has a potential for P if A already has certain structures, S2, which given favourable conditions, will result in A actually having P. I shall refer to this sense of potential as the "strong sense".
- We can say that A has a potential for P if A has certain structures, S1, which, given favourable conditions will result in A actually having structures S2, where S2 designates structures which, given favourable conditions will result in A actually having P. I shall refer to this sense of potential as the "weak sense".
An example will make these two ways of describing potentials clear. Suppose one were to say that the potential for rational thought of a certain complexity marks a morally relevant difference inthe developmental sequence of a human fetus. If one ascribes this potential in the strong sense, then the claim is that the fetus has a potential for rational thought when, but not before, the brain is fully formed. But if one ascribes itin the weak sense, then a fetus has a potential for rational thought at conception; for at conception the fetus possesses certain genetic structures which, given favourable conditions, will result in its having a fully formed brain at some subsequent time.
It should thus be clear to anyone who wants to support a middle position in the abortion debate, and yet who does not want to make certain judgments about non-human organisms, must not only appeal to the potentiality of the fetus, but also insist that it is the strong sense of potential that is relevant.
Now there are only two differences between an organism that has the potential for P in the wweak sense and one that has it in the strong sense. The first is the time when the organism will actually come to have P. Since an organism that has a potential for P in the strong sense if further developed than on which has the same in the weak sense, it will actually have P sooner than the other. The second is the degree of probability with which the organism will actually come to have P, other things being equal. Since an organism that has the potential for P in the strong sense is closer to actually having P than one which merely has the potential in the weak sense, there is less time for things to go wrong to prevent it from realizing its potential. So, other things being equal, it has a higher probability of actually coming to possess P. (Other things, of course, are not always equal, but we can suppose for the sake of argument that they are.) Thus, a middle theorist has to argue for the moral relevance of either a particular proximity to, or degree of probabilityt of actualizing, some selected potential. Whether a theorist can do this will be discussed in section 9, but if he or she cannot, the consequences are clear: he can save his theory from collapsing into that of the extreme conservative only by either embracing repugnant consequence or insisting on a morally arbitrary stipulation.
The extreme conservative position
The extreme conservative claims that the fetus has the right to life at all stages of its development from conception onwards. But if we go on to ask what justification can be providied for such a view, difficulties immediately arise. It dos not seem possible to ascribe such a right just in virtue of the humanity of the zygote, for that presupposes (what is false) that being of th ehuman species is in itself a morally relevant feature. Thus the extreme conservative might ascribe the right on the basis of some other property or set of property than the zygote possesses. But, as we ground in the last section, it does not seem plausible to cite any property the zygote possesses as morally relevant in itself, for that entails counter-intuitive consequences about the proper treatment of non-human organisms. So, the potentiality of the zygote must be appealed to. But now, since some human organisms lack any sort of potentiality which would set them apart from fairly rudimentary non-human organisms, it becomes apparent that an extreme conservative cannot claim that all human zygotes have a right to live. For that would either involve the repugnant consequence of ascribing equal rights to quite primitive non-human organisms, or appealing to a morally arbitrary difference—difference in species. For the same reason, an extreme conservative cannot claim that all human organisms past the zygote stage have a right to life. What humans will lack such a right will depend on the potential the extreme conservative selects as relevant, but it is clear that there will be some human fetuses, neonates, children and adults who are so genetically defective that an extreme conservative must deny them a right to life. And, unless the extreme conservative can argue that once one has a right to life one does not lose that right even if he or she permanently loses the property in virtue of which the right is ascribed, the extreme conservative is committed to denying a right to life to certain mature human beings who, through misadventure, age or disease have lost the property in question.
This may be upsetting to some extreme conservatives, but it does not spell the end of the theory. It is perfectly coherent to say that only—but all—those fetal organisms which have some selected potential have a right to life and to accept the above consequences. But the appeal to potentiality has further implications that make it more repugnant. If what makes it wrong to destroy a non-defective fetus is the fact that we thereby prevent an organism of a certain complexity from coming into existence, there is a strong presumption that it is wrong to practice contraception and for a fertile woman to be celibate, for these do exactly the same. A full-fledged member of the species is equally prevented from coming into existence by being aborted or never conceived, and it surely could not matter to that potential or possible person which was the reason. If the wrongness of contraception and celibacy does indeed follow from the extreme conservative position, I think we can safely treat them as unacceptable consequences. For while on may, for various reasons, wish to claim we have an obligation not to use contraception and an obligation to bring as many people as possible into existence, no one wants to say that these obligations are as stringent as the obligation to refrain from abortions. They are never regarded as serious sins, or as difficult to override by contingenices of circumstance: it is absurd to say that the obligation not to use contraception or be celibate cannot be set aside because of hte mental or physical well-being of a woman. However, since the same ground on which the extreme conservative ascribes a right to life on the fetus gives rise to the presumption that we have an obligation not to engage in these practices, this is exactly what he must maintain—unless, of course, he can provide some morally relevant difference between abortion and these practices. Can he do this?
Let us take the case of contraception first. At first sight, it might seem easy to distinguise it morally for abortion. Fetal organisms from the zygote stage onwards, on may claim, are potential persons whereas eggs and sperm are not, and this, one may go on to say, is sufficient to marke the difference in question. But it is not clear that eggs and sperm are not potential persons, or, for that matter, that zygotes are.5 John Woods defines a potential F as follows:x is a potential F if only if there is some distinct property G such that x has G, and such that if x is maintained in healthy and biologically normal G-hood for as long as it can remain a G, it will, if its development is not arrested, cease to be a G and become an F.6
This definition will indeed allow us to say that zygote is a potential person bug eggs and sperm are not. The problem is that all sorts of things which we would normally regard as potential Fs fail the test. We normally would say that a person with particular hand-eye coordination and game sense is a potential tennis champion, lemon crystals potential lemonade, and apple blossoms potential applies. Thus if the "only if" is to be justified, we must weaken the definition to allow for the addition of some essential components to G in order to yield an F, e.g., tennis instruction, water, pollen. But if we do so weaken the condition, then it is not clear why eggs and sperm cannot be potential persons. For a sperm, when suitably mixed with an egg, will, if its development is not arrested, become an actual person.
On the other hand, one cannot simply say that x is a potential F if x has G, and if G is cojoined with H, I, J, etc., then x will become an F, other things being equal. For on this account lemon crystals are potential poison, a brick a potential church and all of us potential mass murderers. But we would not normally regard any of these things as a potential F, but rather as possible F or part of a possible F. To avoid this, it is typically stipulated that for x to be a potential F the G in question must, in the normal course of events, either develop by itself into an actual F or combine with H, I, J, etc. to do so.
The phrase "in the normal course of events", however, is ambiguous. It can be understood as a purely statistical
The extreme liberal position
The relevance of time and probability
Legislative implications
Notes- I use the term fetus to refer to any fetal organism from conception onwards. It thus encompasses the zygotal stage (first five weeks), the embryonic stage (next four weeks) and the fetal stage proper (the remaining weeks before birth).
- While there are many writers who have defended the view that the fetus has a right to life equal to that of the mother, I knowof noone who has seriously advocated that the fetus' right is superior. But, as Michael Tooley has argued ("A Defense of Abortion and Infanticide", in The Problem of Abortion, ed., Joel Fienberg (Belmont, Calif.: Wadworth, 1973, page 53, n.3), the theory is supported by two considerations which cannot easily be dismissed. First, it is reasonable to suppose that whatever gives a full-fledged human being right to life is something which is necessary for a worthwhile life. But if so, then an organism which actually has that property or set of properties has had a chance at a worthwhile life, whereas one who has only got it potentially has not. So on the principle that, other things being equal, it is only fair to give those who have had less of a thing preferential treatment over those who have had more, the fetus ought to be granted a superior status to that of a full-fledged human being. Second, the fetus typically has a greater life expectancy than do more developed beings, nad having that is often regarded as giving an organism preferred status. It is a common claim that in allocating scarce medical resources, children should be weighted more heavily than adults. But if so, we again get the presumption that the right to life of the fetus is stronger than that of adults.
- Contrary to Judith Jarvis Thompson, "A Defence of Abortion", Philosophy and Public Affairs, 1, No. 1 (1971), pp. 47 – 66. Thompson's views are well criticized by (amongst otehrs) Baruch Brody, Abortion and the Sanctity of Life: A Philosophical Perspective (Cambridge, Mass.: The MIT Press, 1975), chapter 1. Brody argues for views on the relation between the right to lifea nd reasons for abortion similar to those expressed here.
- As opposed to the only logically possible ones. It is logically possible to hold that the fetus alternates between having a right to life and not during fetal development, e.g., that it has a right to life from conception until when it is an embryo, lacks such a right until it is a fetus, and then gains that right again. But such accounts are not serious contenders for our moral allegiance.
- In developing these claims I profited from Joel Fienberg, "The Right of Animals and Unborn Generations", in Today's Moral Problems, ed. R.A. Wasserstrom (New York: Macmillan, 1979, 2nd edition), pp. 568 – 601, especially the appendix "The Paradoxes of Potentiality".
- Engineered Death:Abortion, Suicide, Euthanasia and Senecide (Ottawa: University of Ottawa Press, 1978), p. 44.
- Edward A. Langerak, "Abortion: Listening to the Middle", Hastings Center Report, 9. No. 5 (October 1979), p. 26. See also p. 28, n. 11.
- This is argued by Paul Ramsey, "The Morality of Abortion", in Problems Moral, ed., James Rachels (New York: Harper and Row, 1975, 2nd ed.), p. 40.
- See, for example, John T. Noonan, "An Almost Absolute Value in History", in The Morality of Abortion, ed., John T. Noonan, Jr. (Cambridge, Mass.: Harvard University Press, 1970) and Edward A. Langerak, op. cit.
- I shall formulate the extreme liberal theory in terms of this property, but waht I say will apply mutatis mutandis to formulations in terms of any other property.
- The rationale for typing the right to life beings which have a concept of self is spelled out in more detail by Tooley, op. cit., section III.
- Op. cit., pp. 63 – 64.
- Op. cit., sec. IV.
- Op. cit., p. 26.
- These judgments find rational supportin social utility. According a right to life to full-fledged human beings contributes enormously to the security of such beings, whereas witholding it from germ cells enables us to avoid socially disastrous policies. But these judgments form no essential part of my argument. If we could make either or both of them, that would do nothing to make the question of whether and when the fetus has a right to life any easier to decide.
- Subject to my argument in the next section that there are no considerations which would enable us to say that late term abortion on demand is wrong, even though the fetus has no right to life. But even if that argument is unsound, we will find that the issue is of no great practical or philosophical importance.
- This position is advocated by John Woods, op. cit., ch. 4, sec. 5.
- "Abortion and the Law", Journal of Philosophy 68, no. 12 (June 17, 10\971), p. 362.
- I use the term fetus to refer to any fetal organism from conception onwards. It thus encompasses the zygotal stage (first five weeks), the embryonic stage (next four weeks) and the fetal stage proper (the remaining weeks before birth).