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Unit 11: Abortion

Unit Overview

In this unit we get into one of the most important and relavant issues in applied ethics. Slightly more than 50% of people in the world are women and this issue is definitional in terms of what life is like if you are a woman. Abortion was legalized in the United States in  1973, which was a huge moment in the women's rights movement. Since that time, conservative and Christian political organizations have worked tirelessly to get this decision reversed and their decades long plan came to fruition in 2022 when the Supreme Court overturned Roe v. Wade in the Dobbs ruling. Since that time abortion has been a central political issue and will continue to be so for for the foreseable future. The readings for this week include a few classics on the topic plus summaries of the Roe and Dobbs rulings. 

Readings

Mary Ann Warren’s “On the Legal and Moral Status of Abortion”

Warren’s argument against the Personhood of a Fetus

Warren does not think a fetus is a person because the fetus does not have any of the characteristics of a person. She argues that a being must at least posses one of her five criteria to be considered a person. She is not claiming to offer a definition of a person but rather that a person must at least possess one of these characteristics.

Warren’s Criteria for Moral Personhood:

  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 either genetic or direct external control);
  4. The capacity to communicate, by whatever means, messages of an indefinite variety of types, that is, not just with an indefinite number of possible contents, but on indefinitely many possible topics;
  5. The presence of self-concepts, and self-awareness, either individual or racial, or both.

She is arguing that personhood is not genetic but based rather on an individual’s mentally capacities. She says:

. . . genetic humanity is neither necessary nor sufficient for establishing that an entity is a person. Some human beings are not people, and there may well be people who are not human beings. . . . a fetus is a human being which is not yet a person, and which therefore cannot coherently be said to have full moral rights.

Even if the fetus is not a person there are however two other possible reasons one might consider abortion impermissible. The first is that the fetus might be person like enough to have a right to life and the second is that the fetus might have a right to life in virtue of being a potential person. Regarding these two possibility she says:

  • How like this paradigm, in particular how far advanced since conception, does a human being need to be before it begins to have a right to life by virtue, not of being fully a person as of yet, but of being like a person?
  • To what extent, if any does the fact that a fetus has the potential for becoming a person endow it with some of the same rights?”

(1) How much like a person is a fetus

She says:

But we must keep in mind that the attributes which are relevant in determining whether or not an entity is enough like a person to be regarded as having some of the same moral rights are no different from those which are relevant to determining whether or not it is fully a person—i.e., are no different from (1)-(5)—and that being genetically human, or having recognizably human facial and other physical features, or detectable brain activity, or the capacity to survive outside the uterus, are simply not among these relevant attributes.

Thus it is clear that even though a seven- or eight-month fetus has features which make it apt to arouse in us almost the same powerful protective instinct as is commonly aroused by a small infant, nevertheless it is not significantly more personlike than is a very small embryo. It is somewhat more personlike; it can apparently feel and respond to pain, and it may even have a rudimentary form of consciousness, insofar as its brain is quite active. Nevertheless, it seems safe to say that it is not fully conscious, in the way that an infant of a few months is, and that it cannot reason, or communicate messages of indefinitely many sorts, does not engage in self-motivated activity; and has no self-awareness. Thus, in the relevant respects, a fetus, even a fully developed one, is considerably less personlike than is the average mature mammal, indeed the average fish. And I think that a rational person must conclude that if the right to life of a fetus is to be based upon its resemblance to a person, then it cannot be said to have any more right to life then, let us say, a newborn guppy (which also seems to be capable of feeling pain), and that a right of that magnitude could never override a woman’s right to obtain an abortion, at any stage of her pregnancy.

Thus, since the fact that even a fully developed fetus is not personlike enough to have any significant right to life on the basis of its personlikeness shows that no legal restrictions upon the stage of pregnancy in which an abortion may be performed can be justified on the grounds that we should protect the rights of the older fetus. And once there is no other apparent justification for such restrictions, we may conclude that they are entirely unjustified. Whether or not it would be indecent (whatever that means) for a woman in her seventh month to obtain an abortion just to avoid having a to postpone a trip to Europe, it would not, in itself, be immoral, and therefore it ought to be permitted.

(2) Potential Personhood and the Right to Life

She says:

But what about its potential, the fact that if nurtured and allowed to develop naturally it will very probably become a person? Doesn’t that alone give it at least some right to life? It is hard to deny that the fact that an entity is a potential person is a strong prima facie reason for not destroying it, but we need not conclude from this that a potential person has a right to life, by virtue of that potential. It may be that our feeling that it is better, other things being equal, not to destroy a potential person is better explained by the fact that potential people are still (felt to be) an invaluable resource, not to be lightly squandered. Surely, if every speck of dust were a potential person, we would be much less apt to conclude that every potential person has a right to become actual.

There may well be something immoral, and not just imprudent, about wantonly destroying potential people, when doing so isn’t necessary to protect anyone’s rights. But even if a potential person does have some prima facie right to life, such a right could not possibly outweigh the right of a woman to obtain an abortion, since the rights of any actual person invariably outweigh those of any potential person, whenever the two conflict. Since this may not be immediately obvious in the case of a human fetus, let us look at another case.

Warren’s Potential Person Thought Experiment

The following thought experiment is supposed to show that potential persons do not have a right to life. She says:

Suppose that our space explorer falls into the hands of an alien culture, whose scientists decide to create a few hundred thousand or more human beings, by breaking his body into its component cells, and using these to create fully developed human beings, with, of course, his genetic code. We may imagine that each of these newly created men will have all of the original man’s abilities, skills, knowledge, and so on, and also have an individual self-concept, in short that each of them will be a bona fide (though hardly unique) person. Imagine that the whole project will take only seconds, and that its chances of success are extremely high, and that our explorer knows all of this, and also knows that these people will be treated fairly. I maintain that in such a situation he would have every right to escape if he could, and thus to deprive all of these potential people of their potential lives; for his right to life outweighs all of theirs together, in spite of the fact that they are all genetically human, all innocent, and all have a very high probability of becoming people very soon, if only he refrains from acting.

“Regardless of how he got captured, he is not morally obligated to remain in captivity for any period of time for the sake of permitting any number of potential people to come into actuality, so great is the margin by which one actual person’s right to liberty outweighs whatever right to life even a hundred thousand potential people have. And it seems reasonable to conclude that the rights of a woman will outweigh by a similar margin whatever right to life a fetus may have by virtue of its potential personhood.”

“Thus, neither a fetus’s resemblance to a person, nor its potential for becoming a person, provides any basis whatsoever for the claim that it has any significant right to life. Consequently, a woman’s right to protect her health, happiness, freedom, and even her life, by terminating an unwanted pregnancy will always override whatever right to life it may be appropriate to ascribe to a fetus, even a fully developed one. And thus, in the absence of any overwhelming social need for every possible child, the laws which restrict the right to obtain an abortion, or limit the period of pregnancy during which an abortion maybe performed, are a wholly unjustified violation of a woman’s most basic moral and constitutional rights.

So, here is Warren’s argument:

  1. If potential people had rights then the space explorer in my example would be obligated to let the aliens kill him.
  2. The space explorer is not obligated to let the aliens kill him.
  3. So, potential people do not have rights.

What are we to make of this argument? It is pretty obvious that the space explorer doesn’t have an obligation to sacrifice his life for the potential persons. The question is whether the example is actually analogous to the case of a fetus. Her example seems to show that the rights of actual persons outweigh the rights of potential persons but the question is whether a fetus is a potential person in the same way that the clones are potential persons. And, I think the answer is that they are clearly not. A fetus already exists whereas the potential people in Warren’s example may or may not come into existence. To me it makes more sense to call the fetus an immature person rather than a potential person. Although what you call the fetus doesn’t matter as long you distinguish the fact that the clones are not actually in existence. They may or may not come into existence, whereas the fetus is already in existence and needs to merely develop.

To summarize, here is a reconstruction of Warren’s master argument:

  1. If fetuses have a right to life then it is because a) they are persons b) their similarity to beings that do have a right to life or c) their potential personhood.
  2. Fetuses are not persons as they fail my five point personhood criteria test.
  3. Based on their actual characteristics they are more like guppies then humans, which means their right to life is only as strong as the right to life of a guppy.
  4. Potential person hood does not give anything a right to life.
  5. So, fetuses do not have a right to life.

Arguments against Infanticide

One of the problems with arguments for abortion based on the fetus not being a person is that they seem to also justify infanticide, which is a prima facie problem for such arguments. At the end of her paper Warren attempts to address this issue. Despite offering some arguments she concludes that infanticide is not murder, the killing of a person. The two main things she says is that an infant is different from a baby because:

  • A newborn is more like a person than a fetus
  • The newborn could be given up for adoption

She further says something a bit strange which is that it is wrong because as a society we would prefer to pay taxes to support orphanages and mental institutions (in the case of the mentally retarded). She says, “So long as most people feel this way, and so long as our society can afford to provide care for infants which are unwanted or which have special needs that preclude home care, it is wrong to destroy any infant which has a chance of living a reasonably satisfactory life.” She seems to slip into an extreme form of cultural relativism here, which I doubt she actually intended to do.

This is also pretty interesting and makes me wonder how this figures in with the rest of her argument:

Indeed, if and when a late-term abortion could be safely performed without killing the fetus, she would have no absolute right to insist on its death (e.g., if others wish to adopt it or pay for its care), for the same reason that she does not have a right to insist that a viable infant be killed.

Concluding her discussion of infanticide she says, “It remains true that according to my argument neither abortion nor the killing of neonates is properly considered a form of murder.”

She also briefly addresses an issue that we will look at more in Peter Singer’s “Unsanctifying Human Life.” She says:

In the second place, the argument implies that when an infant is born with such severe physical anomalies that its life would predictably be a very short and/or very miserable one, even with the most heroic of medical treatment, and where its parents do not choose to bear the often crushing emotional, financial and other burdens attendant upon the artificial prolongation of such a tragic life, it is not morally wrong to cease or withhold treatment, thus allowing the infant a painless death.”

The belief that moral strictures against killing should apply equally to all genetically human entities, and only to genetically human entities, is such an error. The overcoming of this error will undoubtedly require long and often painful struggle; but it must be done.”

In summary, her main argument is that fetuses do not have a right to life because:

  1. they are not persons (remember Warren’s five criteria test)
  2. they are not like persons (they are like guppies)
  3. potential personhood does not give something rights

And, her account does not countenance the killing of (neonates) newborn children as murder.