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Abortion and Kant's Formula of Universal Law

Published online by Cambridge University Press:  01 January 2020

Lara Denis
Lara Denis*
Affiliation:
Agnes Scott College, 141 E College Ave, DecaturGA30030, USA
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Extract

Where in Kant's ethical theory may we find principles, guidance, or at least insights, about the morality of abortion? The formula of universal law is a natural place to begin looking. There is a long tradition of focusing on Kant's formula of universal law as a principle for evaluating maxims, resting in part on the belief that Kant intends the formula of universal law to be so used (G 4:437-38). It is hardly surprising that some philosophers have already turned to this principle searching for the — or at least a — Kantian view of abortion.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 37 , Issue 4 , December 2007 , pp. 547 - 579
Copyright
Copyright © The Authors 2007

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References

1 I use the following abbreviations and translations of Kant's texts. Volume:page number citations refer to the Prussian Academy edition of Kant's works. Ant: Anthropology from a Pragmatic Point of View, trans. Gregor, Mary J. (The Hague: Martinus Nijhoff 1974);Google Scholar G: Groundwork for the Metaphysics of Morals, trans. Ellington, James W. (Indianapolis: Hackett Publishing Company 1981);Google Scholar KpV: Critique of Practical Reason, trans. Lewis White Beck (New York: Macmillan 1956); KU: Critique of Judgment, trans. Pluhar, Werner S. (Indianapolis: Hackett Publishing Company 1987)Google Scholar MS: Metaphysics of Morals, trans. Gregor, Mary J. (Cambridge: Cambridge University Press 1991).Google Scholar

2 FULN makes more explicit than FUL that when we universalize, we are to imagine a world in which agents necessarily act on the maxim in question, not simply may act on it. See Wood, Allen W. Kant's Ethical Thought (New York: Cambridge University Press 1999), 78–80.CrossRefGoogle Scholar

3 For some objections to this understanding of how to use FUL/N, see ibid., 97-110.

4 See Gensler, Harry G. ‘A Kantian Argument Against Abortion’ Philosophical Studies 49 (1986), 83.Google Scholar

5 Hare, R.M. ‘A Kantian Approach to Abortion’ and ‘Abortion: A Reply to Brandt,’ Social Theory and Practice 15 (1989), 29.CrossRefGoogle Scholar Hare distinguishes between the ‘critical level’ of moral thinking, which we should rarely try to translate immediately into practical guidance, and the ‘intuitive level’ of moral thinking, which contains the kind of simple, general principles useful in our day to day moral life, in Moral Thinking: Its Level, Method and Point (Oxford: Clarendon Press 1981), esp. chapters 1-3.

6 Hare, ‘A Kantian Approach to Abortion,’ 6-8

7 Gensler, ‘A Kantian Argument Against Abortion,’ 89-90

8 Ibid., 94-5

9 There is no pretense of hewing tightly to Kant by either philosopher. For example, Hare describes his theory as ‘of a more or less Kantian sort’ (‘A Kantian Approach to Abortion,’ 5). Hare makes a similar argument that appeals even less to Kant in ‘Abortion and the Golden Rule,’ Philosophy and Public Affairs 4 (1975): 201-22.

10 Gensler, ‘A Kantian Argument Against Abortion,’ 94;Google Scholar see also 89-94.

11 Hare, ‘A Kantian Approach to Abortion,’ 10,Google Scholar my emphasis.

12 Ibid., 10, first emphasis mine.

13 See Hill, Thomas E. Jr., Human Welfare and Moral Worth (New York: Oxford University Press 2002),CrossRefGoogle Scholar chapter 3; and O’Neill, Onora Constructions of Reason: Explorations of Kant's Practical Philosophy (Cambridge: Cambridge University Press 1989), chapter 6.Google Scholar

14 See Brandt, R.B. ‘Hare on Abortion,’ Social Theory and Practice 15 (1989) 15–24;CrossRefGoogle ScholarPubMed Wilson, Bryan ‘On A Kantian Argument Against Abortion,’ Philosophical Studies 53 (1988): 119–30;CrossRefGoogle ScholarPubMed Sher, George ‘Hare, Abortion, and the Golden Rule,’ Philosophy and Public Affairs 6 (1977);Google Scholar and Feldman, Susan ‘From Occupied Bodies to Pregnant Persons: How Kantians Should Treat Pregnancy and Abortion’ in Autonomy and Community, Kneller, Jane and Axinn, Sidney eds. (Albany: SUNY Press 1998), esp. 269-70.Google Scholar

15 So Korsgaard, Christine M. terms them in Creating the Kingdom of Ends (New York: Cambridge University Press 1996),CrossRefGoogle Scholar chapter 3 [originally published as ‘Kant's Formula of Universal Law,’ Pacific Philosophical Quarterly 66 (1985) 311-40]. My discussion of these formulations owes much to Korsgaard.

16 This problem of natural actions, including actions of violence, has been discussed by many, including Korsgaard in Creating the Kingdom of Ends, chapter 3, and Herman, Barbara in The Practice of Moral Judgment (Cambridge, MA: Harvard University Press 1993)Google Scholar, chapter 6 [originally published as ‘Murder and Mayhem: Violence and Kantian Casuistry,’ Monist 72 (1989): 411-31].

17 Korsgaard, Creating the Kingdom of Ends, 99Google Scholar

18 There would be a contradiction of sorts if a woman were in a situation where having an abortion would be more dangerous than continuing the pregnancy. But universalization is irrelevant here; the woman would simply have chosen her means badly. This is not the sort of contradiction that we need FUL/N's CC test to identify.

19 On temporal universalization, see Glasgow, Joshua M. ‘Expanding the Limits of Universalization: Kant's Duties and Kantian Moral Deliberation,’ Canadian Journal of Philosophy 33 (2003) 23–48.CrossRefGoogle Scholar

20 E-M is a fairly general, high-level maxim. We could understand its relation to more specific maxims syllogistically. E-M is the major premise. ‘Continuing this pregnancy threatens to interfere with my professional development, while aborting it has few and minor negative consequences for me’ is the minor premise. The decision to abort the pregnancy is the conclusion of the practical syllogism.

21 Kantians could of course appeal to Kant's doctrine of right to explain the special, juridical wrongness of depriving a rational being of his external freedom through violence.

22 I discuss only the version of the teleological contradiction interpretation that Korsgaard calls the ‘simple view,’ since it is the only one that Kant relies on in this context. For a more complicated teleological interpretation of the CC test, see Paton, H.J. The Categorical Imperative: A Study in Kant's Moral Philosophy (Philadelphia: University of Pennsylvania Press 1947), 146–64;Google Scholar also see Korsgaard, Creating the Kingdom of Ends, 87-92.

23 Note that for Kant, natural teleology is a regulative principle of reflective judgment (KU 5:376-7, 389). Kant employs teleology at MS 6:419-28, but leaves unclear whether, to be problematic, a maxim has to use a drive (etc.) in a way that prevents it from fulfilling its natural purpose, or merely in a way that does not promote that purpose in the situations covered by the maxim. See my ‘Kant on the Wrongness of ‘‘Unnatural’’ Sex,’ History of Philosophy Quarterly 16 (1999) 225-48.

24 See, e.g., Gold, R.B. Henshaw, S.K. and Lindberg, L.D. Abortion and Women's Health: A Turning Point for America? (New York: Alan Guttmacher Institute 1990);Google Scholar Ahman, E. and Shah, I. Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion (Geneva: World Health Organization 2004);Google Scholar and Zahar, C. Abou and Wardlaw, T.M. Maternal Mortality in 2000: Estimates Developed by WHO, UNICEF, and UNFPA (Geneva: WHO 2003).Google Scholar For up to date information on mortality and morbidity among women due to pregnancy, abortion, and childbirth, see the Alan Guttmacher Institute's website <www.agi-usa.org>.

25 Kant holds that women have certain emotional tendencies designed by nature specifically to ensure the protection of the developing fetus. He singles out timidity at Ant 7:305-306.

26 Different verdicts about the same maxims would result from the teleological interpretation of the CC test also if the end of parental love were defined relative to the sensibilities of each parent — i.e., if the purpose of parental love were to move people to do whatever seemed to them to be most caring and protective of their offspring.

27 See Herman, The Practice of Moral Judgment, chapter 6, esp. 117.Google Scholar Wood agrees with Herman's denial of what he calls ‘the correspondence thesis’: that all and only perfect duties are detected by the CC test and all and only imperfect duties are detected by the CW test. But Wood denies that the CW test's rejection of the maxim ‘To never help anyone’ implies a requirement to adopt the maxim ‘To help others sometimes.’ See Kant's Ethical Thought, 97-102.

28 In the remainder of this section and early in the next, I draw heavily on Herman, The Practice of Moral Judgment, chapters 6, 7, and 3. In this paragraph, I draw mainly on 122-6.

29 See Korsgaard, Creating the Kingdom of Ends, chapters 7 and 12Google Scholar, esp. 352 and 355-57. O’Neill, Onora makes a similar point in Towards Justice and Virtue: A Constructivist Account of Practical Reasoning (Cambridge: Cambridge University Press 1996),CrossRefGoogle Scholar chapter 4, esp. 91-3.

30 If one extends agency only to those fetuses who may become agents in the narrower sense, ASA-M might not fall under the generic maxim of killing agents.

31 Kant seems to consider infants this way, and perhaps could be read as viewing fetuses this way as well. See MS 6:280-82, 422.

32 See Wood, ‘Kant on Duties Regarding Nonrational Nature,’ Proceedings of the Aristotelian Society 72 (1998) 189–210CrossRefGoogle Scholar and Kant's Ethical Thought, 142-5, 370-1. Onora O’Neill also wants to extend ‘the scope of moral concern’ to include incipient and quasi-agents, though she does not explicitly challenge the personification principle. O’Neill says that including potential agents in the scope of moral concern tells us nothing about how we should treat them. See O’Neill, Toward Justice and Virtue, chapter 4, and ‘Kant on Duties Regarding Nonrational Nature,’ Proceedings of the Aristotelian Society 72 (1998) 211–28.CrossRefGoogle Scholar

33 Wood's view does not imply that abortion is the moral equivalent of murder. Furthermore, it does not it imply that there is a duty to maximize rational nature in the abstract. See Kant's Ethical Thought, 371, and ‘Kant on Duties Regarding Nonrational Nature,’ 208-9.

34 Along these lines, see Harman, Elizabeth ‘Creation Ethics: The Moral Status of Early Fetuses and the Ethics of Abortion,’ Philosophy and Public Affairs 28: 310–24.CrossRefGoogle Scholar Harman defends ‘the actual future principle’: ‘An early fetus that will become a person has some moral status. An early fetus that will die while it is still an early fetus has no moral status’ (311).

35 If abortion is a real possibility available to women, a third party's expectation that a fetus will be born is reasonable only if a woman is committed to carrying it to term. More importantly, if a woman is considering abortion, she is not assuming that it will be born; whether it will be born is an open question, the answer to which depends in large part on her decision to seek the completion or the termination of her pregnancy.

36 This alternative supposes that certain attitudes appropriately accompany certain rational commitments.

37 This possibility — which is inspired by the principle of the hypothetical imperative that ‘whoever wills the end also wills (insofar as areas has decisive influence on his actions) the indispensably necessary means to it that are within his power’ (G 4:417) — would not preclude an agent's abandoning the end. It is not obvious that a commitment merely to complete a pregnancy rationally entails a commitment to produce a healthy infant, however. Where abortion is illegal, one might have completing the pregnancy as mediate end, which is itself a means to the end of avoiding the dangers of procuring an illegal abortion.

38 Kant seems to have a concern related to this in mind at MS 6:280. He raises the problem of understanding how humans or God can create a being endowed with freedom. Kant says we must regard procreation as the act of bringing a person into the world; that we cannot regard a person as something created through a physical act. He also says that we must understand God's creation of free beings as taking place atemporally. See also KpV 5:102.

39 Judith Jarvis Thomson has famously and compellingly argued that even if a fetus is a person, abortion is often permissible, because often a woman's killing the fetus inside her is neither unjust nor indecent. See ‘A Defense of Abortion’ Philosophy and Public Affairs 1 (1971) 47-66. ABC-M, for example, seems permissible on Thomson’s account because (a) given the woman's use of contraception, not killing the fetus entails allowing the fetus to continue using her body despite her not having given the fetus a right to do so; and (b) given pregnancy's demands, not killing the fetus entails her going beyond mere moral decency in allowing this fetus to continue to use her body. But Thomson's ethical framework is not identical with Kant’s or Herman’s. Point (a) is not sufficient to show that ABC-M does not devalue the agency of the fetus — a rational being to be killed so the woman can avoid certain unpleasant, taxing, and uninvited experiences. Regarding (b), I take seriously the possibility that maxims of abortion rebut the presumption against killing when the killing is an unavoidable aspect of a woman's discontinuation of non-obligatory aid to the fetus. As we will see early in III.2, however, Kant's standards for satisfying the duty of mutual aid, as Herman understands them, are more demanding than Thomson's standards for being a minimally decent Samaritan.

40 Korsgaard employs another strategy that could get fetuses into class of beings whose killing would be prohibited by the generic maxim. In The Sources of Normativity, she argues that our fundamental practical identity is as human beings. This argument seems inadequately to distinguish between humanity in the species sense and humanity in the species neutral sense. Moreover, as others have pointed out, making human nature rather than rational nature basic throws out a fundamental, distinguishing feature of Kant's ethics. See The Sources of Normativity, ed. Onora O’Neill (Cambridge: Cambridge University Press 1996), chapters 3 and 4, esp. 100-3, 120-5; also see G.A. Cohen, ‘Reason, humanity, and the moral law,’ same volume, chapter 5, esp. 170-4.

41 One might also devalue rational nature in the abstract by refusing to promote (or directly working against) the continuation of the human race (e.g., though abstinence or contraception) on inclination-based grounds, even when the population was steadily and dangerously declining. But if so, this seems like a third mode of devaluing rational nature, distinct from that of abortion, as well as from that of killing persons.

42 Feldman emphasizes that many so-called ‘abortions of convenience’ are sought by women so as to avoid the disruption of projects that are part of their plan for fulfilling their duty of developing their talents. See ‘From Occupied Bodies to Pregnant Persons.’

43 One influential attempt to emphasize the moral significance of an existing fetus’s particularity and prospects is Marquis, Don ‘Why Abortion is Immoral,’ Journal of Philosophy 86 (1989) 183–202.CrossRefGoogle ScholarPubMed

44 This way of viewing abortion is suggested by Thomson, ‘A Defense of Abortion,’ and by Kamm, Frances M. Creation and Abortion: A Study in Moral and Legal Philosophy (Oxford: Oxford University Press 1992),Google Scholar esp. chapter 4.

45 See Herman, The Practice of Moral Judgment, chapter 3Google Scholar [originally published as ‘Mutual Aid and Respect for Persons,’ Ethics 94 (1984) 577-602].

46 The fetus in ASA-M would probably not qualify as a member of the community of mutual aid, even under the extended notion membership (discussed below). Given the severe abnormality of the fetus, it is unlikely that any resulting child would become someone who is even ‘in principle’ able to help others.

47 This does not imply that it is up to each agent to decide, based on her empirical desires, whether she ever wants help (such that if and only if she does, she has a duty of mutual aid). Instead, the agent's assessment of her own needs comes in when she determines how she should go about fulfilling this imperfect (though often demanding) duty of mutual aid — e.g. what sorts of things can she reasonably sacrifice in order to promote the true needs of others, how far should she go, what approach should she take? The duty of mutual aid, like the more standard duty of beneficence, is grounded in consideration of what the agent can rationally will.

48 See Herman, The Practice of Moral Judgment, 66-8. A clear example of a maxim of abortion one could act on without violating the duty of mutual aid is APA-M: ‘If continuing a pregnancy endangers my life, I will have an abortion in order to protect this basic condition of my agency.’

49 Ibid., 62. Herman sees the fact of being contemporaries within the community of mutual aid as morally arbitrary. She uses this reasoning to suggest that future generations also be included.

50 The focus of this discussion is whether the pregnant woman–not third parties– should regard the fetus as a member of the community of mutual aid. There are several reasons for this. One is that this focus fits best with the way abortion is being considered throughout the rest of the paper, which is in terms of the morality of acting of various maxims of having an abortion (rather than, say, of performing an abortion), and of whether the pregnant woman can consistently act on such maxims. Another is that delineation and resolution of the interpersonal conflicts that emerge if everyone should (or at least may) view all fetuses as members of the community of mutual aid, and if some women seek abortions on maxims that are not obviously consistent with the duty of mutual aid (if fetuses are so considered), are beyond the scope of this paper.

51 Tamar Schapiro discusses childhood as a ‘normative predicament’ in which human agency is forged, and which places certain demands on the parents (and others) who have duties to help fledgling agents through this difficult stage. See ‘What is a Child?’ Ethics 109 (1999) 715-38.

52 She may not view herself as its mother if she is planning to put the child up for adoption, or if she is a surrogate mother.

53 Roger Wertheimer suggests ‘that what our natural response to a thing is, how we naturally react to it cognitively, affectively, and behaviorly, is partly definitive of that thing, and is therefore partly definitive of how we ought to respond to that thing,’ so that such things as the kind of interactions we have with infants and fetuses are not irrelevant to how we ought to regard and treat them. He further notes that one may argue that ‘what is special about fetuses, what distinguishes them from babies … is that they essentially are and relate to us as bundles of potentialities.’ See ‘Understanding the Abortion Argument,’ Philosophy and Public Affairs 1 (1971) 67-95, esp. 91-3.

54 It is not clear that one would have to say that one has duties to nonrational beings such as fetuses. One could say that one has duties with regard to them in virtue of their potential rational nature.

55 Again, see Wood, ‘Kant on Duties Regarding Nonrational Nature.’ And for a more recent discussion of this issue, see Wood, ‘Humanity, Personality, and Dignity,’ lecture 3Google Scholar of the Isaiah Berlin Lectures on Kantian Ethics, Oxford University, October 25, 2005.

56 For a different, broadly Kantian, analysis of love and respect in this context, see Reiman, Jeffrey Abortion and the Ways We Value Human Life (Lanham, MD: Rowman & Littlefield 1999)Google Scholar, esp. chapter 3.

57 Feldman discusses women's duties to themselves at length in ‘From Occupied Bodies to Pregnant Persons.’ I critique Feldman in ‘Abortion and Women's Agency: Learning from Feldman's Kantian Approach’ (unpublished manuscript). I develop my own Kantian approach, grounded in women's duties to oneself, in ‘Animality and Agency: A Kantian Approach to Abortion,’ Philosophy and Phenomenological Research (forthcoming in issue 76 [1] [2008]).

58 For their comments on earlier drafts, I thank Marcia Baron, James Mahon, Roger Wertheimer, Allen Wood, and the anonymous referees for the Canadian Journal of Philosophy.