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Published online by Cambridge University Press: 26 January 2009
Morally speaking, is abortion murder? This is what I am calling the ‘abortion problem’. I claim that neither pro-life nor pro-choice advocates have the correct solution; that the correct solution is instead one considered correct by relatively few people. But if this solution really is correct, then why, after years of intense debate, is this solution not more widely accepted? Many, no doubt, are precluded from accepting it by religious dogma. But others, I think, fail to arrive at a correct solution because they have been approaching the problem from the wrong theoretical framework. Or they have been approaching it without any theoretical framework at all. That is, they have no theoretical framework beyond that of merely examining their moral intuitions and, if anything is clear so far from the abortion debate, it is that intuitions alone, which differ radically from person to person, are not sufficient to solve the problem. In short: one is unlikely to arrive at the correct solution unless one starts from a sound theoretical framework. I shall, in what follows, sketch what I take to be a sound theoretical framework. Then I shall try to show what solution to the abortion problem follows from it.
1 I wish to thank my colleagues Christopher Boorse, Jeffrey Jordan, and Katherin A. Rogers, for their helpful comments on an earlier version of this essay.
2 This solution, or one similar, has not been defended very often. The most notable prior defence of a similar solution is by Sumner, L. W. in his outstanding book, Abortion and Moral Theory Princeton, 1981CrossRefGoogle Scholar. But there are differences between Sumner's solution and mine; for two of the most significant differences, see notes 15 and 37 below. Also, although Sumner defends his solution skilfully, his defence does not proceed along the same lines as the defence I present here. This defence proceeds from a theoretical framework that, in broad outlines, is similar to Sumner's, but with more emphasis upon the three ‘tests’ of clarity, motivational capacity, and, especially, coherence. Moreover, contrary to how Sumner proceeds, I set out this theoretical framework at the start, and proceed to cast all my arguments specifically in terms of it. This is not necessarily a better way of proceeding, but helps, I think, clarify key elements in the defence. In general, however, I view my defence not as contradicting, but as complementing Sumner's.
3 I attempt to defend these premises, especially the equal consideration premise, in Equal Consideration, Newark, DE, 1987. See also my Capitalism with Morality, Oxford, 1994, ch. 1Google Scholar.
4 For my views on the nature of well-being, see §§ 1.7–1.10 of Capitalism with Morality; and ‘What is Utility?’, Economics and Philosophy, vi (1990), 65–94Google Scholar.
5 Even animal interests, I would argue, should be within the domain of those whose interests are, for these purposes, to be given equal consideration, but we need not go into the animal question here. For an argument for giving animal interests equal consideration, see Singer, Peter, Practical Ethics, 2nd edn., Cambridge, 1992, ch. 3Google Scholar.
6 A person claiming that there is no relevant difference can hardly point out no relevant difference. No matter how many differences he correctly points out as irrelevant, he still will not have pointed out no relevant difference since, in principle, there may always be a relevant difference that he has overlooked. So, even if the person claiming that there is no relevant difference is indeed correct, he cannot prove he is correct. Take, on the other hand, the person claiming that there is a relevant difference. A relevant difference can be pointed out and its relevance explained. So if this person is correct, he can, in principle, prove it. Since, therefore, only the person claiming that there is a relevant difference can, if he is correct, prove that he is correct, it is only reasonable that he be the one with the burden of proof. If, instead, people claiming no relevant difference had the burden, or even if no one had the burden, all sorts of bigotry would then have free reign.
7 ‘Total view’ and ‘prior-existence view’ is terminology borrowed from Singer, who (pp. 103–5) adopts the prior-existence view since he fears that the total view would make having children obligatory. This fear is unwarranted. For reasons that I cannot go into here, no moral norm that makes it obligatory to have children can be justified in terms of conduciveness to overall well-being. More conducive to overall well-being is, instead, for morality to leave people free to base their procreation decisions on that which they are likely to know the most about – namely, what is conducive to their own well-being. None of this is to deny that, under some circumstances, it may be justifiable for a government – through tax law, most likely – to provide certain incentives for having, or not having, children. It is a mistake to confuse what may be appropriate to build into law with what may be appropriate to build into morality.
8 Utilitarians usually formulate the utilitarian standard in terms of maximizing what is called ‘utility’, not ‘well-being’. ‘Utility’, being a technical concept, is (or can be made) more clear-cut than the ordinary concept of ‘well-being’. A formulation in terms of‘well-being’, however, will do for our purposes. I compare, and analyse, the concepts of ‘well-being’ and ‘utility’ in §§ 1.7–1.10 of Capitalism with Morality.
9 I hope no one still believes that metamoral justification and moral justification (or ‘rule’ and ‘act’ utilitarianism) necessarily collapse into one another. As has often been shown (see e.g. Capitalism with Morality, § 1.6), they most certainly do not collapse if indirect, or rule, utilitarianism is properly formulated. The proper formulation, I argue (§§ 1.4–1.6), is not in terms of those norms and values the adherence to which would be most conducive to overall well-being, but in terms of those norms and values whose backing by social pressure would be most conducive to overall well-being. Many philosophers believe, however, that indirect, or rule, utilitarianism avoids the ‘collapse’ objection only at the expense of becoming incoherent, or subject to the charge of ‘rule worship’. This belief is also incorrect, as shown by Hooker, Brad in ‘Rule-consequentialism, Incoherence, Fairness’, Proceedings of the Aristotelian Society, XCV (1995) 19–35CrossRefGoogle Scholar; see also pp. 20–1 of Capitalism with Morality.
10 English, Jane, ‘Abortion and the Concept of a Person’, Canadian Journal of Philosophy, V (1975), 233–43CrossRefGoogle Scholar.
11 For an argument similar to the one here for the view that the exception for self-defence is not appropriate for abortion, even when the pregnant woman's life is threatened, see Brody, Baruch, Abortion and the Sanctity of Human Life, Cambridge, 1975Google Scholar. Thomson suggests that if someone, say Smith, were trapped in a small room with a (very) rapidly growing child, then Smith could justifiably kill the child in self-defence so as to prevent its rapidly growing body from crushing him to death, even though the child would otherwise have survived; see Thomson, Judith Jarvis, ‘A Defense of Abortion’, Philosophy & Public Affairs, i (1971), 52Google Scholar. I find this suggestion, based solely upon this fantastic hypothetical, to be unconvincing. Consider a somewhat more realistic hypothetical. Say that Smith is in grave danger of smothering to death on the bottom of a pile of people who have fallen from stands that collapsed at a football game. Say, also, that Smith would survive if the people on top of him were dead, since limp, dead bodies could be pulled away from him more quickly than live ones. Yet all the people on top of Smith are alive and, furthermore, will remain alive unless he kills them. Would it, therefore, be justifiable self-defence if Smith did in fact to take out his gun and kill them? I doubt it.
12 Ibid., 47–66.
13 Sumner makes a fine distinction between consciousness and sentience (p. 142), and focuses exclusively on sentience. The distinction, as I understand it, is that one is conscious if and only if one has experiences, whereas one is sentient if and only if (a) one has experiences and (b) these experiences – however slightly and in however subtle a way – are of either value or disvalue to one; that is, they are, however slightly, either ‘positive’ or ‘negative’, rather than absolutely neutral. This distinction may be of some theoretical importance, but I doubt if it is of practical importance, for I suspect that any being that is conscious is sentient as well, even if sentient in only the most rudimentary way. I focus on consciousness here simply because it is the more familiar and widely understood concept.
14 Singer, p. 164. Singer's main source is Taiwa, Susan, ‘When is the Capacity for Sentience Acquired during Human Fetal Development?’, Journal of Maternal-Fetal Medicine, i (1992)Google Scholar. See also Grobstein, Clifford, Science and the Unborn, New York, 1980Google Scholar.
15 What I say in the above paragraph distinguishes somewhat the solution to the abortion problem defended here from that defended by Sumner. Sumner argues that, since sentience (or consciousness) comes about not all at once, but gradually throughout the second trimester, so does moral standing, and a moral right to life (pp. 144, 153–4, and 157). I argue, instead, that a moral right to life comes about, all at once, with the first flickering of consciousness. A moral right to life that comes about gradually, as Sumner claims, certainly does not serve the cause of clarity, or provide much guidance for those who need to know when abortion is murder and when not. Sumner goes on to say that, since law, at least, must be specific, we should choose to mark the point after which abortion becomes legally wrong at a specific point within the period during which sentience comes about. But, so as to not chance killing someone with a moral right to life, I suggest instead that we mark it at a specific point just before the period during which sentience (or consciousness) comes about.
16 Henshaw, Stanley K., ‘Induced Abortion: A World Review, 1990’, Family Planning Perspectives, xxii (1990), tables 4–7Google Scholar.
17 Ibid.
18 It is for determining if some alternative passes this, the coherence test, that the techniques inherent in what John Rawls refers to as ‘reflective equilibrium methodology’ become appropriate. See Rawls, John, A Theory of Justice, Cambridge, Mass., 1971, pp. 19–21 and 46–53Google Scholar. For moral justification at its most fundamental level, however, reflective equilibrium methodology is not, in my view, sufficient by itself, see my ‘What is Wrong with Reflective Equilibria?’, The Philosophical Quarterly, xxxvii (1987), 305–11Google Scholar; and § 1.11 of Capitalism with Morality. In my view, the coherence test, and thus reflective equilibrium methodology, need to be supplemented by the even more fundamental test of conduciveness to overall well-being.
19 None of this is to deny, of course, that plant life must be respected for the sake of preserving the environment. Indeed, few things are more important. But if there were no consciousness in the universe, and never would be, would the environment, or anything else for that matter, still have a point? If not (and I do not see how one could argue otherwise), then this indicates that preserving the environment, as crucial as it undeniably is, remains nevertheless a means to a still higher end.
20 For more on this point, see Sumner, § 16. Sumner, however, does not, as I do here, focus on the line between what life may be treated as a mere means and what may not; but rather focuses on the line between what may be said to have ‘moral standing’, and what not; a focus which, I think, amounts to much the same thing.
21 On this point, see also Hare, R. M., ‘Abortion and the Golden Rule’, Philosophy & Public Affairs, iv (1975), 201–22Google Scholar, and Marquis, Donald, ‘Why Abortion is Immoral?’, Journal of Philosophy, lxvii (1989), 183–202CrossRefGoogle Scholar.
22 Veatch, Robert M., ‘The Impending Collapse of the Whole-Brain Definition of Death’, Hastings Center Report, xxiii (1993), 18–24CrossRefGoogle Scholar. For other, recent defences of the higher-brain view by Veatch, , see Death, Dying, and the Biological Revolution, New Haven, 1990Google Scholar; ‘The Whole-Brain-Oriented Concept of Death: An Outmoded Philosophical Formulation’, Journal of Thanatology, iii (1975), 13–30Google Scholar; ‘Brain Death and Slippery Slopes’, Journal of Clinical Ethics, iii (1992), 181–7Google Scholar; ‘Whole-Brain Neocortical, and Higher Brain Related Concepts’, in Death: Beyond Whole-Brain Criteria, ed. Zaner, Richard M., Dordrecht 1988CrossRefGoogle Scholar.
23 Veatch, , ‘The Impending Collapse of the Whole-Brain Definition of Death’, 23CrossRefGoogle Scholar.
24 It should be mentioned, even though I cannot go into this matter here, that still another reason for choosing the higher-brain view is that it, but not the whole-brain view, draws a clear line between a human being's death and life, and thus is not, as is the whole-brain view, susceptible to ‘slippery slope’ arguments. On this matter, see Veatch, ‘Brain Death and Slippery Slopes’, and ‘The Impending Collapse of the Whole-Brain Definition of Death’. In the latter article, incidentally, Veatch suggests that any who, for reasons of conscience, may not agree with the higher-brain definition, be allowed to specify, prior to death, that another definition be used for them.
25 On the ability of physicians to determine accurately when irreversible loss of consciousness has occurred, see Crawford, Ronald B. and Smith, Harmon L., ‘Some Critical Distinctions between Brain Death and the Persistent Vegetative State’, Ethics in Science and Medicine, vi (1979), 199–209Google Scholar; Hansotia, Phiroze L., ‘Persistent Vegetative State’, Archives of Neurology, xlii (1985), 1048–52CrossRefGoogle Scholar; Council on Scientific Affairs and Council on Ethical, and Affairs, Judicial, ‘Persistent Vegetative State and the Decision to Withdraw or Withhold Life Support’, JAMA, cclxiii (1990), 426–30, esp. 428Google Scholar.
26 On this, see Rogers, Katherin A., ‘Personhood, Potentiality, and the Temporarily Comatose Patient’, Public Affairs Quarterly, vi (1992), 245–54Google Scholar.
27 See, e.g., Sumner, § 12.
28 On the tendency of unwanted or abused children to turn to crime, see Diggs, K. B., ‘The Psychological Sequelae of Therapeutic Abortion – Denied and Completed’, American Journal of Psychiatry cxlviii (1991)Google Scholar.
29 Posner, Richard A., Sex and Reason, Cambridge, Mass., 1992, pp. 284 and 287Google Scholar.
30 Hare discusses this countervailing tendency in ‘Abortion and the Golden Rule’.
31 It should be pointed out, however, that, in the United States today, women who remain single and below the poverty line tend, perversely, to have significantly more children than women in any other category. US Bureau of the Census, Current Population Reports, Series P60–184, Money Income of Households, Families, and Persons in the United States 1992, Washington, 1993, Table 18Google Scholar. But this tendency is an aberration from what is true of other times, places and income groups, and, as such, is likely to come to an end once the underlying causes – be they a perverse welfare system, social injustices, or whatever – have been identified and corrected.
32 Many people use ‘pro-choice’ to refer, instead, to a position that takes no stand on the morality of abortion itself. According to this pro-choice position, even though abortion may be morally wrong, women nevertheless should be free of any moral, or legal, constraints in deciding whether to have one. Indeed, those who hold this position will often say that, ‘personally’, they think abortion is morally wrong. Nevertheless, they will insist, women should be free of any moral constraints in choosing for themselves. Since this interpretation of ‘pro-choice’ views it as taking no stand on the morality of abortion itself, we may call it the ‘morally neutral’ interpretation. Unfortunately, the morally neutral interpretation makes no sense. That there are moral constraints against some-thing, say, rape – that rape is, in other words, morally prohibited – is part of the very meaning of its being morally wrong, as distinct from its merely exemplifying bad values as does, say, failure to aid the starving. Thus to say that, ‘Although abortion may be morally wrong, women nevertheless should be free of any moral constraints in deciding whether to have one’, is simply incoherent. If abortion is morally wrong, women must be under a moral constraint not to have one. Admittedly, just because something is morally wrong there need not necessarily be any legal constraints against doing it. Yet in the case of abortion, if it is in fact morally wrong, it probably is wrong because it is murder, and if it is murder, then surely, in this case at least, legal as well as moral constraints should exist, since people certainly should not be free, legally, to decide for themselves whether or not to commit murder. For these reasons, the morally neutral interpretation of ‘pro-choice’ is incoherent, and shall not be adopted here.
33 I must point out that my brief characterization of this argument is far from representing that of any actual liberal. Rather, it represents only that part of typical liberal arguments on this matter that I believe has plausibility. I do not attempt to reproduce any actual liberal arguments because actual liberals, such as Peter Singer (ibid.) and Michael Tooley (Abortion and Infanticide, New York, 1984), couch their arguments in terms of a ‘preference’ rather than an ‘experience’ model of well-being (or utility), and preference models of well-being are, in my opinion, the true bane of contemporary moral and political philosophy; the confusion they have caused is, in my view, virtually unlimited (see, e.g., Singer, pp. 227–31). For a comparison of these models of well-being, and why I agree with philosophers such as Brandt, Richard B., A Theory of the Good and Right, Oxford, 1979Google Scholar, and Sumner, § 21, in rejecting preference models, see my Capitalism with Morality, §§ 1.7–1.10.
34 The above argument is merely sketched. Perhaps self-consciousness is not exactly the right property, or the only property, in terms of which this argument should be couched. But it will do for our purposes. The other half of the argument is that not only does animal well-being not necessitate a right to life as does human well-being, but to grant animals a right to life anyway would just decrease overall well-being (even if, in calculating overall well-being, animal and human well-being are given equal consideration). This half of the argument would point out that a right to life for animals would preclude the well-being derivable from certain, essential experimentation on animals, and from the practice of raising animals for food, a practice that gives rise to more animals to experience the joys of life than there would otherwise be. But I need not pursue this half of the argument here.
35 Mary Anne Warren attempts to avoid this conclusion in a postscript to her well-known article, ‘On the Moral and Legal Status of Abortion’, The Monist, lvii (1973), 43–61Google Scholar; see her ‘Postscript on Infanticide’, in Morality in Practice, 3rd edn., ed. Sterba, James P., Belmont, , CA, 1991, pp. 159–60Google Scholar. In this postscript she argues, in effect, that, although the newly-born infant has no right to life, as long as other people want the infant or prefer that it not be killed, parents are therefore morally obligated not to kill it. I find this unconvincing. Just because one has something that others want, this does not create a moral obligation not to destroy it. One may, e.g., throw out food that others want, kill a kitten that others want, and so on, without violating any moral obligation, even though, at times, giving it to them may be the only ‘decent’ thing to do. In general, helping others, or doing what they prefer that you do, is admirable, but it is not, I think, generally viewed as obligatory. Nor, I might add, should it be obligatory, as I try to show in Capitalism with Morality, § 1.5.
36 I know that there have been, in the past, societies in which infanticide was, in fact, tolerated, such as those of ancient Greece and Rome, and Europe up through the middle ages. These societies, however, were hardly known for their tenderness and compassion toward others. Our own society is not, to be sure, a paradigm of tenderness and compassion in many ways either, but we do not come even close to the cruelty and violence rampant in these societies. I have also heard rumours of small island societies that both allow infanticide and display loving care toward infants along with tenderness and compassion toward everyone. But before jumping to any conclusions, I suggest that we look very closely at the facts. If such societies actually do exist, maybe they do not allow infanticide for any reasons the parents may please (as the liberal position we are talking about here does), but only when, owing to grossly mistaken factual or religious beliefs, they think it is actually in the best interests of the infant.
37 Contrary to Sumner, I am offering here a ‘non-graded’ account of the right to life, according to which one achieves, from the start, as much of a right to life as one will ever achieve, which means that, unless one forfeits it altogether, one's right to life remains constant throughout life, rather than varying according to how some justifying characteristic varies. Sumner instead offers a ‘graded’ account, according to which this right arises gradually, as one gradually acquires the characteristic that justifies having the right, and the right varies as possession of this justifying characteristic varies (§ 16). Moreover, for Sumner this justifying characteristic is not full self-consciousness, as I argue it is, but sentience. He admits that the details of his graded account of a right to life would be complex, and forgoes any attempt to work these details out (p. 144). I doubt if these details can be worked out without relying upon arbitrary distinctions, especially for distinguishing between the rights of human beings and various kinds of animals, and without ending up with a right to life that is unacceptably complex, thereby failing the clarity test.