Warren – On the Moral and Legal Status of Abortion


  • Paper has three basic parts

◦                     Criticism of Thomson

◦                     Argument against a fetus’s right to life based on being a potential person

◦                     Discussion of how her account relates to infanticide

Argument Against Thomson

“It is only in the case of pregnancy due to rape that the woman’s situation is adequately analogous to the violinist case for our intuitions about the latter to transfer convincingly. The crucial difference between a pregnancy due to rape and the normal case of an unwanted pregnancy is that in the normal case we cannot claim that the woman is in no way responsible for her predicament; she could have remained chaste, or taken her pills more faithfully or abstained on dangerous days, and so on. If on the other hand, you are kidnapped by strangers, and hooked up to a strange violinist, then you are free of any shred of responsibility for the situation, on the basis of which it would be argued that you are obligated to keep the violinist alive. Only when her pregnancy is due to rape is a woman clearly just as nonresponsible.”

Revised Violinist Case

  • This example is supposed to be similar to actual case of consensual sex
  • “Suppose, then, that violinists are peculiarly prone to the sort of illness the only cure for which is the use of someone else’s bloodstream for nine months, and that because of this there has been formed a society of music lovers who agree that whenever a violinist is stricken they will draw lots and the loser will, by some means, be made the one and only person capable of saving him. Now then, would you be obligated to cooperate in curing the violinist if you had voluntarily joined this society, knowing the possible consequences, and then your name had been drawn and you had been kidnapped? Admittedly, you did not promise ahead of time that you would, but you did deliberately place yourself in a position in which it might happen that a human life would be lost if you did not. Surely, this is at least a prima facie reason for supposing that you have an obligation to stay in bed with the violinist. Suppose that you had gotten your name drawn deliberately; surely that would be quite a strong reason for thinking that you had such an obligation.”


  • “ . . . the moral right to obtain an abortion is not in the least dependent upon the extent to which a woman is responsible for her pregnancy. But unfortunately, once we allow the assumption that a fetus has full moral rights, we cannot avoid taking this absurd suggestion seriously.”
  • “Once we allow the assumption that a fetus has full moral rights it becomes an extremely complex and difficult question whether and when abortion is justifiable. Thus the Thomson analogy cannot help us produce a clear and persuasive proof of the moral permissibility of abortion. Nor will the opponents of the restrictive laws thank us for anything less; for their conviction (for the most part) is that abortion is obviously not a morally serious and extremely unfortunate, even though sometimes justified act, comparable to killing in self-defense or to letting the violinist die, but rather is closer to being a morally neutral act, like cutting one’s hair.”


“The basis of this conviction, I believe, is the realization that a fetus is not a person, and thus does not have a full-fledged right to life.”

Her basic criticism of Thomson:

  • The violinist case, and even the revised violinist case in which we are agreed to remain hooked up to the violinist, are totally dis-analogous to pregnancy because a violinist has a right to life and a fetus does not.

“All we need to claim, to demonstrate that a fetus is not a person, is that any being which satisfies none of (1)-(5) is certainly not a person.”

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.

Exercise: Discuss with your partner, “What is the problem with this account of personhood?”

“. . . 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.”

Examples – brain dead, mentally disabled

“ . . . a fetus is a human being which is not yet a person, and which therefore cannot coherently be said to have full moral rights.”

Claim about moral reciprocity:

  • “To ascribe full moral rights to an entity which is not a person is as absurd as to ascribe moral obligations and responsibilities to such an entity.”
  • No argument is made for this claim
  • Sadly Kant seems to have held a similar view
  • However, more recent Kantians (Tom Reagan) make the distinction between moral patients and moral agents
  • Examples of moral patients include children and animals (according to Reagan), but children are undeniable counterexamples to this calim

Two Questions:

“(1) 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 vet, but of being like a person? and

(2) 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

“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

“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 ease.”

Warren’s Potential Person Thought Experiment

“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.”

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.

Exercise: Discuss with your partner “Are the potential people in Warren’s example analogous to the way in which a fetus is a potential person?”

Clearly not

  • A fetus is already existing
  • But the potential people in Warren’s example may or may not come into existence

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

However, it seems that all the arguments that justify abortion also justify infanticide, which is a prima facie problem for Warren. Despite offering some arguments she concludes that infanticide is not murder, the killing of a person.

1)   A newborn is more like a person than a fetus

2)   The newborn could be given up for adoption

3)   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) “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.”

“But there is an obvious and crucial difference between the two cases: once the infant is born, its continued life cannot (except, perhaps, in very exceptional cases) pose any serious threat to the woman’s life or health, since she is free to put it up for adoption, or, where this is impossible, to place it in a state-supported institution.”

“In contrast, a pregnant woman’s right to protect her own life and health clearly outweighs other people’s desire that the fetus be preserved-just as, when a person’s life or limb is threatened by some wild animal, and when the threat cannot be removed without killing the animal, the person’s right to self-protection outweighs the desires of those who would prefer that the animal not be harmed. Thus, while the moment of birth may not mark any sharp discontinuity in the degree to which an infant possesses a right to life, it does mark the end of the mother’s absolute right to determine its fate. 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.”

“It remains true that according to my argument neither abortion nor the killing of neonates is properly considered a form of murder.”

“In the first place, it implies that when an infant is born into a society which-unlike ours-is so impoverished that it simply cannot care for it adequately without endangering the survival of existing persons, killing it or allowing it to die is not necessarily wrong-provided that there is no other society which is willing and able to provide such care. Most human societies, from those at the hunting and gathering stage of economic development to the highly civilized Greeks and Romans, have permitted the practice of infanticide under such unfortunate circumstances, and I would argue that it shows a serious lack of understanding to condemn them as morally backward for this reason alone.”

“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.”


Her argument against Thomson is just the assertion that fetuses do not have a right to life because they are not persons.

Fetesus do not have a right to life because

a) they are not persons (remember thomson’s five criteria test)

b) they are not like persons (they are like guppies)

c) potential personhood does not give something rights

Her account does not countenance the killing of (neonates) new born children as murder

Singer – Unsanctifying human life


Thesis: The life of a human being is not sacred (does not posses some very special value


Specieism: Discrimination on the basis of species


Example 1: The strange value people place on a human life:

Baby born with severe down’s syndrome, intestinal obstruction, and congenital heart condition. Mother didn’t want an operation to save the child’s life, but a local child welfare agency got the state involved and forced her to.


“This case, then, shows how much some people are prepared to do in order to ensure that a human infant lives, irrespective of the actual potential mental capacities of the infant, its physical condition, or the wishes of the mother.”


Example 2: The strange lack of value people place on non-human life


“The researchers confined sixty-four monkeys in small cubicles. These monkeys were then given unlimited access to a variety of drugs, through tubes implanted in their arms. They could control the intake by pressing a lever. In some cases, after the monkeys had become addicted, supplies were abruptly cut off. Of the monkeys that had become addicted to morphine three were “observed to die in convulsions” while other found dead in the morning were “presumed to have died in convolsions.” Monkeys that had taken large amounts of cocaine inflicted severe wounds upon themselves, including biting off their fingers and toes, before dying convulsive deaths. Amphetamines caused one monkey to “pluck all of the hair off his arms and abdomen.” In general, the experimenters found that “The manifestations of toxicity . . . were similar to the well-known toxicities of these drugs in man.” They noted that experiments on animals with addictive drugs had been going on in their laboratory for “the last 20 years.”

Both examples are un-exceptional.

“Can it be right to make great efforts to save the life of a mongoloid human infant when the mother does not want the infant to live, and at the same time not be wrong to kill, slowly and painfully, a number of monkeys?”

One possible objection: But we gain useful scientific knowledge that helps us prevent greater suffering.


Singer’s Response: Would we perform the same experiment on mongoloid humans if we knew it would prevent suffering?

Legitimate discrimination vs. Illegitimate Discrimination

We can treat species differently based on their different relevant respects i.e. We do try to teach humans to read but not dogs.

But to suggest that certain races should not be taught to read would be racism. “Race has nothing to do with the extent which a person can benefit from being able to read.”

How do severely retarded humans compare with dogs, pigs, monkeys, and apes? It seems that these animals posses greater mental and emotional capacities than some severely retarded human beings.

“If we are prepared to discriminate against a being simply because it is not a member of our own species, although it has capacities equal or superior to those of a member of our own species, how can we object to the racist discriminating against those who are not his own race?”

Biological vs. Dictionary definition of Human


Three solutions

1)   Hold constant our attitudes to members of other species, and change our attitude toward members of our own species so that we consider it legitimate to kill retarded human infants in painful ways for experimental purposes even when no immeadiately useful knowledge is likely to be derived from these experiments; and in addition we give up any moral objections we may have to rearing and killing these infants for food.

2)   While holding constant our attitudes to members of our own species, we change our attitude toward members of other species, so that we consider it wrong to kill them because we like the taste of their flesh, or for experimental purposes even when the experiment would result in immediately useful knowledge; and moreover we refuse to kill them even when they are suffering severe pain from some incurable disease, and are a burden to those who must look after them.

3)   We change our attitudes to both humans an non-humans, so that they come together at some point in between the present extremes.


“We have to change our attitudes in both directions. We have to bring non-humans within the sphere of our moral concern, and cease to treat them purely as a means to our ends. At the same time ice we realize that the fact that severely and irreparably retarded infants are members of the species homo sapiens is not in itself relevant to how we should treat them, we should be ready to reconsider current practices which cause suffering to all concerned and benefit nobody.”

Within current medical practice doctors often withhold treatment to infants because it would prolong their life and cause them more suffering. This is okay given the current laws but it would be better to change the laws. The current practice of letting die could be made more humane by allowing the child to die painlessly. This is what we do for animals, so why not for humans.

Killing vs Letting Die

Singer argues that letting die is the same thing as killing.


Why not euthanize babies born with spina bifida?

“Virtually all will be paralyzed from the waist down, and incontinent because of damage to their exposed nerves. Four out of five of these survivors will get hydrocephalus; their heads will swell out, some until they are too heavy to hold up. Severely retarded, often spastic and blind, they will spend their childhood in institutions that most of us do not care to think about, let alone visit. By adolescence virtually all will be dead.”

“What exactly is it that the medical profession stands for that allows it to kill millions of sentient non-human beings, while prohibiting it from releasing fro suffering an infant homo sapiens with a lower potential for a meaningful life?”



“I have suggested some ways in which once we eliminate speciest bias from our moral views, we might bring our attitudes to human an non-human animals closer together. I am well aware that I have not given any precise suggestions  about when it is justifiable to kill either a retarded infant, or a non-human animal. I really have not made up my mind on this problem, so I leave it open, in the hope that others will offer suggestions.”

The Slippery Slope Objection

The last issue Singer addresses in his paper is an objection that argues that Speciesim and our treatment of even handicapped and infirm babies serves a vital and important role in society. His argument is that there have been plenty of other cultures that have been able to adequately differentiate infirm infants from healthy human beings.


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